Williamson v. Schmidt et al

Filing 27

ORDER: RE 20 MOTION A Factual Report and Order to Pay Exemplary Damages filed by Thor J. Williamson is STRICKEN. The Second Amended Complaint, with errata, at Dockets 25 and 26-1, is DISMISSED w/o Prejudice to filing a Third Amended Comp laint. Mr. Williamson may proceed on First Amended Complaint w/o attachments and file a notice and submit an errata to his First Amended Complaint or file a Third Amended Complaint on or before April 16, 2015. Signed by Judge Sharon L. Gleason on 03/16/2015. (See order for full details).(CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THOR JAMES WILLIAMSON,
Plaintiff,
vs.
EARL HOUSER, et al.,
Defendants.

Case No. 3:14-cv-00219-SLG

ORDER PERMITTING THIRD AMENDED COMPLAINT
SOLELY ON COURT FORM
Thor James Williamson, a self-represented state prisoner, has filed a
Second Amended Complaint (SAC) as permitted by the Court’s Order at Docket
24. 1 In his SAC, Mr. Williamson asserts violations of his Due Process rights
against each of the Defendants, state officials at Palmer Correctional Center
(PCC), in their individual capacities for money damages. 2
In its earlier Order Permitting Amended Complaint, at Docket 21, the Court
explained the requirements for stating a claim for relief for violations that may have
occurred as a result of the acts of various state officials in Mr. Williamson’s case. 3
The possible claims explained by the Court, after reviewing the facts alleged by

1

Dockets 25, 26-1 (missing page to the SAC, which will be construed as an errata to the
SAC).

2

Docket 25 at 2-3.

3

Docket 21.

Mr. Williamson, included the denial of the right of access to the courts, 4 the
violation of the right to Due Process, 5 and retaliation for the exercise of his First
Amendment rights. 6 The Court also explained that to obtain money damages from
an individual defendant, Mr. Williamson must assert facts showing that that
individual defendant participated in causing his alleged injuries. 7
Again, because Mr. Williamson is a prisoner, the Court is required to “identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.” 8

4

Id. at 4-6.

5

Id. at 6-7.

6

Id. at 8.

7

Id. at 8-10.

8

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B) (required review of in forma
pauperis complaints); 42 U.S.C. § 1997e(c)(1) (“The court shall on its own motion . . .
dismiss any action brought with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner . . . if the court is satisfied that the action is
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant who is immune from such relief.”); see also Hebbe v.
Plier, 627 F.3d 338, 342 (9th Cir. 2010) (“[O]ur ‘obligation’ remains [after Ashcroft v. Iqbal,
556 U.S. 662 (2009)], ‘where the petitioner is pro se, particularly in civil rights cases, to
construe the pleadings liberally and to afford the petitioner the benefit of any doubt.’”)
(citation omitted).
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1.

Mr. Williamson has failed to state a claim for relief for the violation of his right
to Due Process.
The Supreme Court has explained that “the Due Process Clause provides

that certain substantive rights—life, liberty, and property—cannot be deprived
except pursuant to constitutionally adequate procedures. . . [O]nce it is determined
that the Due Process Clause applies, ‘the question remains what process is due.’” 9
Further, Mr. Williamson must show that any denial of his right to Due Process
resulted in an injury in fact. 10
In his first claim for relief, against Earl Houser, the Assistant Superintendent
of PCC, Mr. Williamson alleges as follows:
After being placed in segregation denied and deprived access to my
current civil legal documents from the courts for 49 days. by knowing
his officers seized court documentation until disciplinary action could
be imposed before D-Board and all segregation time completed. After
stating “employees of the Department do not deny any ones their
rights to Due Process”. After All Earl Houser was one of the officers
9

Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (citations omitted); see
also Turner v. Safely, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.”).

10

See Witt v. Department of Air Force, 527 F.3d 806, 812 (9th Cir. 2008) (“Major Witt
meets the Article III requirements for her substantive due process and equal protection
claims. . . . Major Witt suffered a cognizable injury on account of her long-term
suspension.”); Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817, 821-22
(9th Cir. 2001) (Attorney failed to state a Due Process claim when he “alleged no facts
showing, with specificity, that the prohibition against citing unpublished dispositions will
produce an imminent injury personal to Schmier himself . . . or even to one of Schmier’s
clients,” nor did “he establish standing based solely on his interest in seeing the federal
courts (among other governmental bodies) ‘perform [their] duties’ and abide by the
Constitution.”) (citations omitted); Lee v. State of Oregon, 107 F.3d 1382, 1390 (9th Cir.
1997) (“None of the Plaintiffs can assert an ‘injury in fact’ resulting from the alleged equal
protection, due process, Americans with Disabilities Act, or Rehabilitation Act violations.
. . . The failure to assert an ‘injury in fact’ requires the dismissal of these claims.”).

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that had placed me in segregation to begin with. My right to “Due
Process” were violated by the above named defendant for (49) days
while housed in segregation. This conduct is unacceptable and
constitutes deliberate indifference. Plaintiff had permission by staff
rnember Paul Kroening to store a box of legal work in his office. And
my name and the box had the words (LEGAL COURT DOCUMENTS)
written all over it. So, there was no chance of this box of legal
documents could be considered abandoned property, or what it was.
Or who it belonged to. Or where I was at. 11
Mr. Williamson states that he was denied access to his legal documents
while he was in segregation for 49 days. 12 He has not specifically stated, however,
how his Due Process rights were violated during that process, resulting in an injury.
Thus, Mr. Williamson has not stated a claim for relief against Earl Houser for the
violation of his right to Due Process. 13
In his second claim for relief, Mr. Williamson alleges that Robert Hall, a
sergeant at PCC, violated his rights as follows:
On 9/19/2014, Plaintiff submitted request for access to his legal
documentation regarding Civil Complaint and litigation. Defendant
Hall denied me access to my documentation and stated that I’m only
allowed to have information pertaining to my criminal case. Defendant
Robert Hall continued to deny me access to my Civil case by stating
that I will be able to work on it once I was released from segregation.
Defendant Hall consistently denies my requests again on Sept 29th
2014. My rights to “Due Process” were violated by Robert Hall for an
11

Docket 25 at 4.

12

Id.

13

Mr. Williamson uses the term “deliberate indifference” throughout his pleading. See id.
at 4-6; Docket 26-1. However, deliberate indifference normally describes cruel and
unusual punishment under the Eighth Amendment, particularly in cases addressing the
failure to meet a prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97
(1976).
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extended period of time. This conduct is unacceptable and
constitutes, “deliberate indifference” to my civil rights. 14
Again, alleging that Mr. Williamson was denied access to his legal
documents while he was in segregation for 49 days, without more, does not state
a claim for relief for the violation of Mr. Williamson’s right to Due Process.
In his third claim, against PCC Sergeant Frances Buzby, Mr. Williamson also
alleges that his rights were violated as follows:
On 9/2/2014, at approximately 7:00, Frances Buzby was notified
about Williamson’s box of legal documents being stored in the
education department office. Williamson had permission by Staff
member Paul Kroening to leave my box of legal work in the office while
I was scheduled to leave the facility for day surgery. Defendant Buzby
violated Privileged Mail. Defendant Buzby used my Privileged mail
and legal documents to issue an incident report stating that some of
the paper work was a (Direct threat) to the security to the Institution.
Officer Buzby violated confidentiality by breaching the documents
contained in my legal material. Further, Defendant Buzby deprived
and denied me access to my legal work by seizing the documentation
until disciplinary action could be imposed before D-Board. My Right
to “Due Process” were violated by the above mentioned defendant for
(49) days while housed in segregation, pending and completing
disciplinary actions. 15
And in his fourth claim, Mr. Williamson alleges the following against
Douglass Shaeffer, a PCC Property Officer:
On 9/19/2014, Plaintiff submitted requests for access to his legal
documents regarding Civil Complaint and other litigation. Defendant
Shaeffer, denied me access to my documentation. for the 49 days I
was in the hole telling me I must get my legal documents from
Defendant Hall. This denies my rights to Due Process. And my rights
14

Docket 25 at 5.

15

Id. at 6.

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were violated by Douqlass Sheaffer for an extended period of time.
This conduct is unacceptable and constitutes, “deliberate
indifference.” to my civil rights. 16
Mr. Williamson has not specifically alleged how his Due Process rights were
violated, resulting in an injury, by Frances Buzby, Douglass Shaeffer, or any other
Defendant. 17
2. Mr. Williamson will be given a final opportunity to proceed with this case. 18
Mr. Williamson may either (1) proceed on his First Amended Complaint at
Docket 22, without the attachments, and with an errata providing the full names of
the three remaining Defendants in the caption (as explained in the Order Permitting

16

Docket 26-1.

17

Compare Antonetti v. Skolnik, 748 F.Supp.2d 1201, 1210-11 (D. Nev. 2010) (“Plaintiff
claims that he has been housed in segregation for several years, and has been repeatedly
denied materials such as books, paper, pens, and envelopes, as well as assistance from
a law clerk and help with research . . . by direct refusal and by policy. . . . [P]laintiff argues
that defendants’ failures have prevented him from being properly prepared for court. He
claims that as a result, his habeas corpus petitions and civil rights actions have been
dismissed . . . The court finds that under the facts alleged by plaintiff . . . he states a
colorable First Amendment access to courts claim.”) (emphasis added); and Giba v.
Cook, 232 F.Supp.2d 1171, 1185 (D. Oregon 2002) (“Giba claims that several defendants
denied him the right of access to the courts and that he incurred an actual injury because
the ‘confiscated documents eventually culminated in plaintiff having his lawsuit
dismissed.’ . . . Giba alleges that he was denied the right of access to the courts because
several defendants confiscated and destroyed his photocopies of another inmate’s legal
papers. Giba, however, fails to show how this interference actually caused the dismissal
of his civil case, let alone to which civil case he is referring. Moreover, Giba should have
been able to procure any documents relating to his own case through the discovery
process and by requesting affidavits from other inmates to be sent directly to him. Thus,
the confiscation and destruction of these papers cannot amount to the denial of court
access.”).
18

See Silva v. Di Vittorio, 658 F.3d 1090, 1105 (9th Cir. 2011) (“Dismissal of a pro se
complaint without leave to amend is proper only if it is absolutely clear that the deficiencies
of the complaint could not be cured by amendment.”).

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Order Permitting Third Amended Complaint
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Second Amended Complaint Solely on Court Form, at Docket 24); or (2) file a Third
Amended Complaint solely on the form provided by the Court, with no attachments.
If Mr. Williamson chooses to file a Third Amended Complaint, he should
allege facts against only one defendant for each claim for relief in the space
provided. In Claim 1, for example, Mr. Williamson could state facts solely in
support of his allegation that Assistant Superintendent Houser violated his Due
Process rights, and how he was injured as a result; in Claim 2, he could state facts
solely against Sergeant Robert Hall for the violation of his right to access to the
courts, and how he was injured as a result; and so on.
If he chooses to amend, Mr. Williamson must state, specifically, what each
state official did or did not do which he believes violated his federal civil rights, and
what specific relief he seeks from the Court – whether in the form of damages or
injunctive relief. Mr. Williamson must decide, for each defendant, whether he or
she is being sued in his or her individual capacity (requesting money damages for
participating in causing his injuries), or official capacity (requesting injunctive relief
to address a policy or custom that resulted in his injuries).
The Court is sending a form upon which Mr. Williamson must file any
amended complaint. In completing this form, Mr. Williamson should state the facts
in his own words, as if he were briefly and concisely telling someone what
happened. The facts provided in support of each separate claim must specifically
include the name of the particular defendant, what happened, how the particular

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defendant was involved, when the events occurred, where those events occurred,
how he was hurt, and what the injuries were. In other words, Mr. Williamson must
avoid stating conclusions. 19
Later, if his claims proceed before the Court on the merits, at the discretion
of the Court, Mr. Williamson may be given an opportunity to file a brief on the issues
in which he may more thoroughly argue the case with supporting documentation. 20
A Third Amended Complaint must be complete in itself without reference to
any prior pleading. 21 That is, any defendant not named or claim not re-alleged is
generally considered waived. 22 Thus, in a Third Amended Complaint,
Mr. Williamson should make no reference to his previous complaints or other
extraneous documents.
IT IS THEREFORE ORDERED:
1.

The Second Amended Complaint, with errata, at Dockets 25 and 26-1, is
DISMISSED without prejudice to filing a Third Amended Complaint.

19

See Ashcroft v. Iqbal, 556 U.S. at 678-79.

20

After the answer(s) have been filed in a case, the Court issues a Scheduling Order that
sets out the briefing and pretrial schedule. A brief is a “written statement setting out the
legal contentions of a party in litigation . . . consisting of legal and factual arguments and
the authorities in support of them.” Black’s Law Dictionary (9th ed. 2009).

21

See D.Ak.LR 15.1(3).

22

See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (“For claims
dismissed with prejudice and without leave to amend, we will not require that they be
repled in a subsequent amended complaint to preserve them for appeal. But for any
claims voluntarily dismissed, we will consider those claims to be waived if not repled.”)
(citation omitted).
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2.

The Motion at Docket 20 is STRICKEN as improper under the Federal Rules
of Civil Procedure. 23

3.

The Clerk of Court is directed to send form PS01, Prisoner’s Complaint
under the Civil Rights Act, and a copy of the Court’s Orders at Dockets 21
and 24 to Mr. Williamson with this Order.

4.

Mr. Williamson may proceed on his First Amended Complaint at Docket 22
(as explained in Docket 24), against the three remaining Defendants, or he
may file a Third Amended Complaint on or before April 16, 2015. If he files
a Third Amended Complaint, he must do so solely on the form provided by
the Court, with no attachments. He must state facts against only a single
defendant in each claim for relief. He must make no legal arguments.

5.

If Mr. Williamson decides to proceed solely on his First Amended Complaint
at Docket 22, without attachments, he shall file a notice with the Court on or
before April 16, 2015. He shall also submit an errata to his First Amended
Complaint on the first page of the Prisoner’s Civil Rights Complaint form

23

The factual allegations and request for relief addressed in Docket 20 are what should
be contained within a complaint.

Fed. R. Civ. P. 8(a) (“A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court
already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief;
and
(3) a demand for the relief sought, which may include relief in the alternative or different
types of relief.”) (emphasis in original).
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provided to him with this Order. On that paper, Mr. Williamson must list all
of the three remaining Defendants by their full names in the caption, and
complete the remainder of the page. 24 He shall title that page, “Errata to
Amended Complaint at Docket 22,” and return the page to the Clerk of Court
on or before April 16, 2015.
DATED at Anchorage, Alaska, this 16th day of March, 2015.
/s/ SHARON L. GLEASON
UNITED STATES DISTRICT JUDGE

24

Mr. Williamson properly completed the first page of his Second Amended Complaint at
Docket 25, for example. After service of a complaint, future documents may use the name
of the first Defendant, and “et al.” in the caption, as demonstrated on the first page of this
Order.
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