Maynard et al v. Wamble-Fisher et al

Filing 27

ORDER re denying 13 APPLICATION for Leave to Proceed in forma pauperis filed by John Maynard. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOHN MAYNARD,
Plaintiff,

Case No. 1:11-CV-00605-BLW
ORDER

vs.
SHELL WAMBLE-FISHER and
ASHLEY DOWELL,
Defendants.

This action began as a multi-plaintiff civil rights lawsuit, where eight inmates
alleged that they suffered retaliatory termination from their volunteer positions in the Life
Transitions Program (LTP) at the Idaho State Correctional Institution (ISCI), a prison
program allowing inmates to aid ill inmates housed in the infirmary for long-term care,
hospice care, and/or terminal medical conditions. The Court determined that each inmate
should file a separate lawsuit so that the factual allegations of each inmate could be
adequately reviewed by the Court, but that the parties would be permitted to pay a
proportional share of the original filing fee. The present Amended Complaint (Dkt. 26)
was filed by Plaintiff John Maynard in response to the Order.

ORDER - 1

REVIEW OF AMENDED COMPLAINT
1.

Standard of Law
The Court is required to review prisoner and in forma pauperis complaints seeking

relief against a governmental entity or an officer or employee of a governmental entity to
determine whether summary dismissal is appropriate. 28 U.S.C. §§ 1915(e) and 1915A.
The Court must dismiss a complaint or any portion thereof that states a frivolous or
malicious claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); 28 U.S.C. § 1915A. A complaint should also be dismissed under Rule 8 of
the Federal Rules of Civil Procedure if the factual allegations are not “plausible,” but
merely “conceivable.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009).
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To state
a valid claim under § 1983, a plaintiff must allege a violation of rights protected by the
Constitution or created by federal statute proximately caused by the conduct of a person
acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
A prison official is not liable under § 1983 unless he or she personally participated in the
alleged constitutional violations or, as a supervisor, knew of and failed to prevent those
violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

ORDER - 2

2.

Retaliation Claim
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
prisoner’s protected conduct, and 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). A “chilling
effect on First Amendment rights” is enough to state an injury. Gomez v. Vernon, 255
F.3d 1118, 1127 (9th Cir. 2001). On the other hand, bare assertions of a retaliatory motive
are insufficient to state a retaliation claim. Rizzo v. Dawson, 778 F.2d 527, 533 n.4 (9th
Cir. 1985) (footnote omitted).
Plaintiff will be permitted to proceed against Ms. Wamble-Fisher and Ms. Dowell
on claims that they terminated him from his position as a volunteer in the LTP out of
retaliation for Plaintiff being a witness for another inmate in a civil rights action and for
speaking out against their unlawful conduct.
3.

First Amendment Free Exercise Claim
The First Amendment Free Exercise Clause absolutely protects the right to believe

in a religion, but it does not absolutely protect all conduct associated with a religion.
Cantwell v. Connecticut, 310 U.S. 296 (1940). Inmates clearly retain their free exercise of
religion rights in prison. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987).
However, challenges to prison restrictions that are alleged “to inhibit First Amendment
interests must be analyzed in terms of the legitimate policies and goals of the corrections
ORDER - 3

system, to whose custody and care the prisoner has been committed in accordance with
due process of law.” Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 125 (1977)
(citation omitted). The courts, therefore, must balance prisoners’ First Amendment rights
against the goals of the correctional facility. Bell v. Wolfish, 441 U.S. 520 (1979).
Particularly, “when a prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests.” Turner v.
Safely, 482 U.S. 78, 87 (1987).
Plaintiff alleges that he is a Christian, and that Defendants’ decisions to reduce the
religious activities and terminate him from the LTP resulted from their desire to curtail
Christian worship at the prison, in violation of the First Amendment Free Exercise
Clause. Liberally construed, Plaintiff’s amended complaint states a cause of action for
First Amendment religious freedom violations, and he will be permitted to proceed on
these claims against Defendants.
4.

RLUIPA Claim
The Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §

2000cc, provides that “[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . even if the burden results
from a rule of general applicability, unless the government demonstrates that imposition
of the burden on that person . . . is in furtherance of a compelling governmental interest
and . . . is the least restrictive means of furthering that compelling governmental interest.”
42 U.S.C. § 2000 cc- 1(a). The RLUIPA applies to entities receiving federal financial
ORDER - 4

assistance. Id. at (b) (1). The United States Supreme Court recently upheld the
constitutionality of RLUIPA. See Cutter v. Wilkinson, 544 U.S. 709 (2005).
Under RLUIPA, the inmate bears the initial burden of showing that the prison’s
policy constitutes a substantial burden on the exercise of the inmate’s religious beliefs.
Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). If the inmate “establishes the
prima facie existence of such a substantial burden, . . . [prison officials] shall bear the
burden of persuasion to prove that any substantial burden on [the inmate’s] exercise of his
religious beliefs is both ‘in furtherance of a compelling governmental interest’ and the
‘least restrictive means of furthering that compelling governmental interest.” Id. at 995
(quoting 42 U.S.C. § 2000cc-1(a); § 2000cc-2(b)). RLUIPA is to be construed broadly in
favor of protecting an inmate’s religious rights. Id.
Liberally construed, Plaintiff’s allegations that Defendants reduced Christian
religious activities at the prison state a RLUIPA claim upon which he can proceed.
5.

Equal Protection Claim
Under the Equal Protection Clause, “all persons similarly circumstanced shall be

treated alike” by governmental entities. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412,
415 (1920). However, “[t]he Constitution does not require things which are different in
fact or opinion to be treated in law as though they were the same.” Tigner v. Texas, 310
U.S. 141, 147 (1940).
Plaintiff alleges that Ms. Wamble-Fisher and Ms. Dowell terminated Plaintiff,
reduced Christian activities, and removed the LTP from the chapel because of
ORDER - 5

discrimination against him as a Christian. Liberally construed, Plaintiff has stated an
equal protection claim against Defendants upon which he may proceed.
6.

Conclusion
Plaintiff may proceed on those claims set forth above. These claims have been

gleaned from both the body of the Amended Complaint and the paragraphs entitled Count
I, II and II.
This Order does not guarantee that any of Plaintiff’s claims will be successful; it
merely finds that one or more is colorable, meaning that the claims will not be summarily
dismissed at this stage. Defendants may still file a motion for dismissal or motion for
summary judgment if the facts and law support such a motion. This Order is not intended
to be a final or a comprehensive analysis of Plaintiff’s claims. It is Plaintiff’s burden to
thoroughly set forth the legal and factual basis for each claim.
Plaintiff’s Motion for in Forma Pauperis Status will be denied because Plaintiff
had over $2,500 pass through his account in a little over one year. (Dkt. 13, 14.) Plaintiff
will be required to pay one-eighth of the $350 filing fee, which is $43.75, within the next
60 days. In addition, Plaintiff is responsible for serving the Complaint, together with a
Summons, on Defendants within the next 120 days.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion to Proceed in Forma Pauperis (Dkt. 13) is DENIED.
Plaintiff is required to pay one-eighth of the statutory filing fee of $350.00,

ORDER - 6

which is $43.75, within 60 days after entry of this Order.
2.

The Clerk of Court shall provide Plaintiff’s counsel with (1) summonses for
service of process upon the Defendants against whom he has been
authorized to proceed; and (2) a copy of the Notice of a Law Suit and
Request to Waive Service of Summons (attached to the end of this Order).
Plaintiff shall obtain a waiver of service from, or service or effect formal
service upon, Defendants within 120 days after entry of this Order, or
claims against unserved Defendants shall be dismissed without prejudice.

3.

The parties shall not engage in any discovery until an answer has been
filed. Within thirty (30) days after an answer has been filed, the parties shall
provide each other with the following voluntary disclosures: all relevant
information pertaining to the claims and defenses in this case, including the
names of individuals likely to have discoverable information, along with the
subject of the information, as well as any relevant documents in their
possession, in a redacted form if necessary for security or privilege
purposes; and, if necessary, they shall provide a security/privilege log
sufficiently describing any undisclosed relevant documents which are
alleged to be subject to nondisclosure. Any party may request that the Court
conduct an in camera review of withheld documents or information. If,
instead of filing an answer, Defendants file a motion to dismiss under
Federal Rule of Civil Procedure 12, disclosures and discovery shall be

ORDER - 7

automatically stayed with the exception that Defendants shall submit with
any motion to dismiss for failure to exhaust administrative remedies a copy
of all grievance-related forms and correspondence, including a copy of
original handwritten forms submitted by Plaintiff that either fall within the
relevant time period or that otherwise relate to the subject matter of a claim.
4.

Each party shall ensure that all documents filed with the Court are
simultaneously served upon the opposing party (through counsel if the party
has counsel) by first-class mail or via the CM/ECF system, pursuant to
Federal Rule of Civil Procedure 5. Each party shall sign and attach a proper
mailing certificate to each document filed with the court, showing the
manner of service, date of service, address of service, and name of person
upon whom service was made. The Court will not consider ex parte
requests unless a motion may be heard ex parte according to the rules and
the motion is clearly identified as requesting an ex parte order, pursuant to
Local Rules of Civil Practice before the United States District Court for the
District of Idaho 7.2. (“Ex parte” means that a party has provided a
document to the court, but that the party did not provide a copy of the
document to the other party to the litigation.)

5.

All Court filings requesting relief or requesting that the Court make a ruling
or take an action of any kind must be in the form of a pleading or motion,
with an appropriate caption designating the name of the pleading or motion,

ORDER - 8

served on all parties to the litigation, pursuant to Federal Rule of Civil
Procedure 7, 10 and 11, and Local Rules of Civil Practice before the United
States District Court for the District of Idaho 5.1 and 7.1. The Court will not
consider requests made in the form of letters.
6.

Discovery shall not be filed with the Clerk of Court, but shall be exchanged
between parties, only, as provided for in the Federal Rules of Civil
Procedure. Motions to compel discovery shall not be filed unless the parties
have first attempted to work out their disagreements between themselves.

7.

No party may have more than three pending motions before the Court at one
time, and no party may file a motion on the same subject matter if he or she
has another motion on the same subject matter currently pending before the
Court.

8.

Plaintiff shall notify the Court immediately if Plaintiff’s address changes.
Failure to do so may be cause for dismissal of this case without further
notice.

DATED: April 8, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

ORDER - 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

___________________,
Plaintiff(s),
v.
Civil Action No. _________________
___________________,
Defendant(s)
NOTICE OF A LAWSUIT AND
REQUEST TO WAIVE SERVICE OF
SUMMONS

v.
___________________,
Third-Party Defendant(s)
(Use if needed.)

To ______________________________:
(Name the defendant–or if the defendant is a corporation, partnership, or association, name an officer or agent authorized to receive service)

Why are you getting this?
A lawsuit has been filed against you, or the entity you represent, in this court under the
number shown above. A copy of the complaint is attached.
This is not a summons, or an official notice from the court. It is a request that, to avoid
expenses, you waive formal service of a summons by signing and returning the enclosed
waiver. To avoid these expenses, you must return the signed waiver within ______ days
(give at least 30 days or at least 60 days if the defendant is outside any judicial district of the United States)

from the date shown below, which is the date this notice was sent. Two copies of the
waiver form are enclosed, along with a stamped, self-addressed envelope or other prepaid
means for returning one copy. You may keep the other copy.
NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF SUMMONS

What happens next?
If you return the signed waiver, I will file it with the court. The action will then proceed
as if you had been served on the date the waiver is filed, but no summons will be served
on you and you will have 60 days from the date this notice is sent (see date below) to
answer the complaint (or 90 days if this notice is sent to you outside any judicial district
of the United States).
If you do not return the signed waiver within the time indicated, I will arrange to have the
summons and complaint served on you. And I will ask the court to require you, or the
entity you represent, to pay the expenses of making service.
Please read the enclosed statement about the duty to avoid unnecessary expenses.
I certify that this request is being sent to you on the date below.
Date ____________________
________________________________________
(Signature of the attorney or of the pro se party)
________________________________________
(Printed name)
________________________________________
(Address)
________________________________________
(E-mail address)
________________________________________
(Telephone number)

NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF SUMMONS