Wood v. Board of Corrections et al

Filing 37

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Defendants' Motion to Dismiss 35 is GRANTED. This case is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915(g). Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LANCE CONWAY WOOD,
Case No. 1:11-cv-00355-EJL
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
BRENT REINKE, JOHANNA SMITH,
SHELL WAMBLE-FISHER, JAY
CHRISTENSEN, JEFF KIRKMAN,
JILL WHITTINGTON, DAVID
SIDWELL, JACOB SACKETT, and
TEN JOHN and TEN JANE DOES, in
their individual and official capacities,
Defendants.

Plaintiff Lance Conway Wood, a prisoner in the custody of the Idaho Department
of Correction, is proceeding pro se and in forma pauperis in this civil rights action. Now
pending before the Court is Defendants’ Motion to Dismiss for failure to state a claim
upon which relief may be granted (Dkt. 35). Plaintiff has not responded to the Motion.
Having carefully reviewed the record, the Court finds that the decisional process
would not be significantly aided by oral argument. Therefore, the Court will decide this
matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ.
R. 7.1(d). Accordingly, the Court enters the following Order granting Defendants’ Motion
and dismissing this case without prejudice.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
On June 2, 2010, Plaintiff filed his original civil rights case with several other
plaintiffs in Case No. 1:10-cv-00277-REB, but the Court severed Plaintiff’s case into this
separate case, No. 1:11-cv-00355-EJL. Plaintiff’s Second Amended Complaint alleges
multiple claims of constitutional violations against various IDOC employees. (Dkt. 3.)
The Court initially reviewed the Second Amended Complaint pursuant to 28
U.S.C. § 1915A, and on January 4, 2012, entered an Order permitting Plaintiff to proceed
with the following claims:
(1)

“Against Defendant Smith under the First and Eighth Amendments
for failing to protect Plaintiff from, or acquiescing in, ongoing
retaliation and calculated harassment by the other Defendants”;

(2)

“Against Defendant Wamble-Fisher for First Amendment retaliation
claims and Eighth Amendment calculated harassment claims related
to Defendant Wamble-Fisher firing Plaintiff from his chapel job, not
reinstating Plaintiff as a Life Transitions Program team member, and
having Plaintiff’s cell searched by Defendant Sackett and then
having Plaintiff removed from his single cell”;

(3)

“Against Defendant Christensen under the First and Eighth
Amendments for Plaintiff losing his word processor and other
materials, losing his legal books and papers, losing his paid chapel
job, losing his position as head facilitator of the Life Transitions
Program, and losing his single cell”;

(4)

“Against Defendant Sidwell under the First and Eighth Amendments
for placing negative reports in Plaintiff’s institutional file, moving
Plaintiff out of his single cell and unit, and having Defendant Sackett
search Plaintiff’s cell”; and

(5)

“Against Defendant Sackett under the First and Eighth Amendments
for repeatedly searching Plaintiff’s cell, stealing Plaintiff’s legal
evidence and material, intimidating Plaintiff’s witnesses and entering

MEMORANDUM DECISION AND ORDER - 2

false reports into Plaintiff’s institutional file.”
(Dkt. 8 at 9-10).
On March 21, 2013, the Court granted Defendants’ Motion for Partial Summary
Judgment, dismissing all of Plaintiff’s claims for failure to exhaust administrative
remedies except his claims, under the First and Eighth Amendments, that Plaintiff was
unlawfully terminated from the Life Transitions Program (LTP). (Dkt. 34 at 14.)
According to Plaintiff, the LTP
was under the direction and care of the chapel and considered
a chapel program. It consisted of twenty (20) prisoner
volunteers that were required to be interviewed by a three (3)
pannel [sic] committee to be hired, and received extensive
hospice and bio-hazard training.
. . . The LTP volunteers assisted medical and security
personnel with a variety of tasks, conducted vigils, visited
with patients, wrote letters, telephoned their families and
friends, filled out concern forms, prepared legal packets, [and]
provided church services and reading materials.
(Sec. Am. Compl., Dkt. 3, at ¶¶ 41-42.)
Plaintiff alleges that Defendant Wamble-Fisher (1) “fired plaintiff Wood from LTP
for exercising his constitutional rights to seek redress of his concerns in court and through
concerns”; “terminated the LTP out of retaliation for plaintiff Wood exercising his right
to seek redress of constitutional issues and concerns, and for her strong dislike for the
LTP because it was taking away from her phycho-babble [sic] programming”; and (3)
“lied about the reasons the LTP was terminated and denied ever firing plaintiff Wood
from the LTP.” (Id. at ¶¶ 44, 47.) Plaintiff asserts that Defendant Smith “authorized
MEMORANDUM DECISION AND ORDER - 3

defendant Wamble-Fisher . . . to terminate the [LTP]” and that she was aware of other
Defendants’ improper conduct and “did not investigate or . . . do anything to prevent
defendants [sic] retaliation [and] harassment.” (Id. at ¶¶ 31, 27.)
DISCUSSION
In the Initial Review Order, the Court noted that its decision allowing Plaintiff to
proceed on some of the claims in the Second Amended Complaint was “not intended to
be a final or a comprehensive analysis of Plaintiff’s claims” and that “Defendants may
still file a motion for dismissal or motion for summary judgment if the facts and law
support such a motion.” (Dkt. 8 at 11.) Pursuant to Federal Rule of Civil Procedure
12(b)(6), Defendants now move to dismiss Plaintiff’s remaining retaliation and calculated
harassment claims regarding his the LTP program.
1.

Standard of Law Applicable to a Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the

claim showing that the pleader is entitled to relief,” in order to “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). While a
complaint attacked by a Rule 12(b)(6) motion to dismiss “does not need detailed factual
allegations,” it must set forth “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id.
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. A claim
MEMORANDUM DECISION AND ORDER - 4

has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.
at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for
more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the
line between possibility and plausibility of ‘entitlement to relief.’” Id. at 557 (alteration
omitted).
The Supreme Court has identified two “working principles” that underlie this
dismissal standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “First, the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.” Id. “Rule 8 marks a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.
Second, only a complaint that states a plausible claim for relief survives a motion to
dismiss. Id. at 679. “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id.

2.

Section 1983 Claims
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To state

a claim under § 1983, a plaintiff must allege a violation of rights protected by the
MEMORANDUM DECISION AND ORDER - 5

Constitution or created by federal statute proximately caused by conduct of a person
acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Section 1983 is “‘not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386,
393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
Prison officials are generally not liable for damages in their individual capacities
under § 1983 unless they personally participated in the alleged constitutional violations.
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677
(“[E]ach Government official, his or her title notwithstanding, is only liable for his or her
own misconduct.”). “A defendant may be held liable as a supervisor under § 1983 ‘if
there exists either (1) his or her personal involvement in the constitutional deprivation, or
(2) a sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). This causal connection “can be
established by setting in motion a series of acts by others, or by knowingly refusing to
terminate a series of acts by others, which the supervisor knew or reasonably should have
known would cause others to inflict a constitutional injury.” Id. at 1207-08 (internal
quotation marks, citation, and alterations omitted).
3.

Retaliation Claims
A First Amendment retaliation claim must allege the following: “(1) An assertion

that a state actor took some adverse action against an inmate (2) because of (3) that
MEMORANDUM DECISION AND ORDER - 6

prisoner’s protected conduct, . . . that such action (4) chilled the inmate’s exercise of his
First Amendment rights, and (5) the action did not reasonably advance a legitimate
correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote
omitted). Although a “chilling effect on First Amendment rights” is enough to state an
injury, Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of
arbitrary retaliation” are insufficient to state a retaliation claim. Rizzo v. Dawson, 778
F.2d 527, 532 n.4 (9th Cir. 1985). “A prisoner suing prison officials under section 1983
for retaliation must allege that he was retaliated against for exercising his constitutional
rights and that the retaliatory action does not advance legitimate penological goals, such
as preserving institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 815-16
(9th Cir. 1994) (per curiam); see also Turner v. Safley, 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.”).
But not every retaliatory act taken by an official can be considered an adverse
action that chills the exercise of protected speech. The proper inquiry in determining
whether a plaintiff has stated a viable retaliation claim “asks whether an official’s acts
would chill or silence a person of ordinary firmness from future First Amendment
activities.” Mendocino Envt’l Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.
1999) (internal quotation marks omitted). If it would not, then “the retaliatory act is
simply de minimis and therefore outside the ambit of constitutional protection.” Davis v.
Goord, 320 F.3d 346, 353 (2d Cir. 2003) (internal quotation marks omitted). See also
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Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006) (“The [de minimis] standard achieves
the proper balance between the need to recognize valid retaliation claims and the danger
of federal courts embroiling themselves in every disciplinary act that occurs in state penal
institutions.”) (internal quotation marks and alteration omitted); ACLU of Maryland, Inc.
v. Wicomico County, 999 F.2d 780, 786 n.6 (4th Cir. 1993) (per curiam) (“[T]hese § 1983
plaintiffs suffered no more than a de minimis inconvenience and . . . , on the facts of this
case, such inconvenience does not constitute cognizable retaliation under the First
Amendment.”).
Plaintiff’s retaliation claims fail for at least two reasons. First, although Plaintiff
asserts that Defendants acted with retaliatory motives when they terminated him from the
LTP and discontinued the program, he offers nothing to support that conclusion other
than his own subjective belief. The law is clear that such a belief is insufficient to state a
viable retaliation claim under § 1983. See Rizzo, 778 F.2d at 532 n.4.
Second, even if the termination of Plaintiff and the closure of the LTP program
were based on Plaintiff’s exercise of constitutional rights, those actions must still be
upheld as long as they were reasonably related to a legitimate penological interest.
Plaintiff has not offered any allegations supporting a plausible inference that Defendants’
actions “did not reasonably advance a legitimate correctional goal.” Rhodes, 408 F.3d at
568.
4.

Eighth Amendment Calculated Harassment Claims
The Eighth Amendment to the United States Constitution protects prisoners

MEMORANDUM DECISION AND ORDER - 8

against cruel and unusual punishment. Inmates have an Eighth Amendment right to be
free from “calculated harassment unrelated to prison needs.” Hudson v. Palmer, 468 U.S.
517, 530 (1984). The United States Supreme Court has reiterated that the Eighth
Amendment should be reserved for serious incidents causing “unnecessary and wanton
infliction of pain,” where such pain has been inflicted by prison officials’ “deliberate
indifference to the inmates’ health or safety.” Hope v. Pelzer, 536 U.S. 730, 737, 738
(2002) (internal quotation marks omitted). Further, in McKune v. Lile, the Court noted
that, in determining whether a constitutional claim lies, “[c]ourts must decide whether the
[facts] are closer to the physical torture against which the Constitution clearly protects or
the de minimis harms against which it does not.” 536 U.S. 24, 41 (2002). “Not every
unpleasant experience a prisoner might endure while incarcerated constitutes cruel and
unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832
F.2d 950, 954 (6th Cir. 1987).
Plaintiff’s Eighth Amendment claims fail because he has not alleged any facts that
would suggest calculated harassment on the part of Defendants. The Second Amended
Complaint contains only conclusory statements that Defendants violated the Eighth
Amendment.
5.

Opportunity For Further Amendment
The Court now considers whether Plaintiff should be given a third opportunity to

amend his complaint. Amendments to pleadings are governed by Rule 15 of the Federal
Rules of Civil Procedure. That rule states that the Court “should freely give leave when
MEMORANDUM DECISION AND ORDER - 9

justice so requires.” Fed. R. Civ. P. 15(a)(2). The Ninth Circuit has explained the
reasoning behind allowing the opportunity to amend:
In exercising its discretion with regard to the
amendment of pleadings, a court must be guided by the
underlying purpose of Rule 15—to facilitate decision on the
merits rather than on the pleadings or technicalities. This
court has noted on several occasions that the Supreme Court
has instructed the lower federal courts to heed carefully the
command of Rule 15(a) . . . by freely granting leave to amend
when justice so requires. Thus Rule 15’s policy of favoring
amendments to pleadings should be applied with extreme
liberality.
Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (internal citations, quotation
marks, and alterations omitted).
“In the absence of any apparent or declared reason—such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.,” it is appropriate for a court to
grant leave to amend. Foman v. Davis, 371 U.S. 178, 182 (1962). Although these factors
are considered together, futility of amendment, by itself, is sufficient to justify the denial
of a motion to amend. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).
The Court concludes from Plaintiff’s multiple attempts to amend, as well as from
his failure to respond to Defendants’ Motion to Dismiss, that he simply does not have the
facts necessary to proceed on his retaliation and calculated harassment claims. Therefore,
allowing further amendment would be futile. The Court will, however, dismiss the case

MEMORANDUM DECISION AND ORDER - 10

without prejudice to Plaintiff’s asserting similar claims in some future action.
ORDER
IT IS ORDERED:
1.

Defendants’ Motion to Dismiss (Dkt. 35) is GRANTED.

2.

This case is DISMISSED without prejudice for failure to state a claim upon
which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915(g).

DATED: January 14, 2014

Honorable Edward J. Lodge
U. S. District Judge

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