Williams v. Brooks et al
Filing
45
ORDER VACATING Dkt. 35 and AMENDED MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Plaintiffs Request for Clarification (Dkt. 42 ) is GRANTED IN PART. The Court misspoke when it stated that the Initial Review Order concluded that the Complaint d id not state plausible retaliation claims. The Court has reviewed that Order and its previous Memorandum Decision and Order (Dkt. 35 ), and has determined that the Complaint does, indeed, state such claims. Therefore, the Courts 4/5/2018 Memorandum Decision and Order (Dkt. 35 ) is VACATED, and the Court hereby issues the following Amended Memorandum Decision and Order. To the extent the Request for Clarification seeks permission to file an interlocutory appeal or seeks any other relief, the Re quest is DENIED. 2. Plaintiffs Motion for Reconsideration of the Initial Review Order (Dkt. 17 ) is GRANTED IN PART to the extent that the Court has reviewed and reconsidered the Complaint and the Initial Review Order as set forth below. The Motion is denied in all other respects. 3. Plaintiffs Request to Withdraw Temporary Restraining Order and/or Preliminary Injunction (Dkt. 19 ) is GRANTED. 4. Plaintiffs Motion for an Emergency Temporary Restraining Order (Dkt. 18 ) is DENIED AS MOOT. 5. P laintiffs Motion to Stay Pleadings (Dkt. 22 ) is DENIED. 6. Plaintiffs Motion for Appointment of Counsel (Dkt. 27 ) is DENIED. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KENT WILLIAMS,
Case No. 1:17-cv-00223-DCN
Plaintiff,
ORDER VACATING Dkt. 35 and
AMENDED MEMORANDUM
DECISION AND ORDER
v.
GUARD BROOKS; GUARD
NETTLETON; GUARD HANSEN;
GUARD CULBERTSON; and GUARD
JENSEN,
Defendants.
ORDER
IT IS ORDERED:
1.
Plaintiff’s Request for Clarification (Dkt. 42) is GRANTED IN PART. The
Court misspoke when it stated that the Initial Review Order concluded that
the Complaint did not state plausible retaliation claims. The Court has
reviewed that Order and its previous Memorandum Decision and Order
(Dkt. 35), and has determined that the Complaint does, indeed, state such
claims. Therefore, the Court’s April 5, 2018 Memorandum Decision and
Order (Dkt. 35) is VACATED, and the Court hereby issues the following
Amended Memorandum Decision and Order. To the extent the Request for
ORDER VACATING Dkt. 35 and AMENDED MEMORANDUM DECISION AND ORDER - 1
Clarification seeks permission to file an interlocutory appeal or seeks any
other relief, the Request is DENIED.
2.
Plaintiff’s Motion for Reconsideration of the Initial Review Order (Dkt. 17)
is GRANTED IN PART to the extent that the Court has reviewed and
reconsidered the Complaint and the Initial Review Order as set forth below.
The Motion is denied in all other respects.
3.
Plaintiff’s Request to Withdraw Temporary Restraining Order and/or
Preliminary Injunction (Dkt. 19) is GRANTED.
4.
Plaintiff’s Motion for an Emergency Temporary Restraining Order (Dkt.
18) is DENIED AS MOOT.
5.
Plaintiff’s Motion to Stay Pleadings (Dkt. 22) is DENIED.
6.
Plaintiff’s Motion for Appointment of Counsel (Dkt. 27) is DENIED.
AMENDED MEMORANDUM DECISION AND ORDER
Plaintiff, an inmate in the custody of the Idaho Department of Correction, is
proceeding pro se and in forma pauperis in this civil rights action brought under 42
U.S.C. § 1983. Pursuant to 28 U.S.C. §§ 1915 and 1915A, United States Magistrate
Judge Candy W. Dale previously entered an Initial Review Order, allowing Plaintiff to
proceed on his claims that Defendants violated his First Amendment right to petition the
government for redress, as well as his First Amendment right to be free from retaliation,
by refusing to process Plaintiff’s jail grievances because they contained disrespectful
language. Dkt. 10. Plaintiff’s claims arose when he was incarcerated at the Ada County
Jail, and Defendants are employees of Ada County.
ORDER VACATING Dkt. 35 and AMENDED MEMORANDUM DECISION AND ORDER - 2
Plaintiff has now filed several motions: (1) a Motion to Reconsider the Initial
Review Order, in which he asks the Court to analyze Plaintiff’s free speech claims
against Defendants; (2) a Motion to Stay Pleadings; and (3) a Motion for the
Appointment of Counsel. Dkts. 17, 22, 27.)1
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record and that oral argument is
unnecessary. See D. Idaho Loc. Civ. R. 7.1.
1.
Motion for Appointment of Counsel
Plaintiff seeks the appointment of counsel. Judge Dale denied Plaintiff’s previous
request for counsel because, with only the bare allegations of the Complaint, the Court
did “not have a sufficient basis upon which to assess the merits, if any, at this point in the
proceeding” and because Plaintiff had articulated his claims sufficiently. (Dkt. 10 at 11.)
See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (factors in the appointment of
counsel analysis are the likelihood of plaintiff’s success on the merits and the ability of
the plaintiff to articulate his claims pro se in light of the complexity of legal issues
involved).
The Court now has more than merely the Complaint to determine whether Plaintiff
is likely to succeed on the merits and concludes that Plaintiff has some likelihood of
success on his claims. However, to date, Plaintiff has continued to represent himself quite
1
In addition, Plaintiff filed a Motion for an Emergency Temporary Restraining Order, but he
later filed a request to withdraw that motion. (Dkt. 17, 18.) Therefore, the Court will grant
Plaintiff’s request for withdrawal and deny as moot his Motion for Emergency Temporary
Restraining Order.
ORDER VACATING Dkt. 35 and AMENDED MEMORANDUM DECISION AND ORDER - 3
ably, including by making legal arguments and by citing legal authority. Thus, the Court
will exercise its discretion to deny Plaintiff’s Motion for Appointment of Counsel.
2.
Motion to Stay Pleadings
In his Motion to Stay Pleadings, Plaintiff asks that the Court stay the deadlines in
this case until a motion in Plaintiff’s most recent case—a First Amendment case against
employees of the Idaho Department of Correction—is decided. (Dkt. 22 at 1; Dkt. 19 at 1
(requesting withdrawal of Plaintiff’s motion for a temporary restraining order because
“[t]he Defendants in this suit are not the party for whome [sic] that motion sought relief
against. Williams has just filed suit against the defendants/party that the TRO sought to
compel, and has filed a new TRO/PI with that suit.”).) See Williams v. Stewart, Case No.
1:18-cv-00028-BLW. Plaintiff also claims that, at ISCC—the prison at which Plaintiff is
currently incarcerated—he does not have adequate access to legal materials to pursue this
case. Dkt. 22 at 1.
The Court sees no reason to delay the progress of this case pending the resolution
of a motion in Plaintiff’s new case. Plaintiff has not yet been authorized to proceed in that
new case, and further delay in this case is not justified.
Moreover, the Constitution does not require that inmates “be able to conduct
generalized research,” nor does it “guarantee inmates the wherewithal to transform
themselves into litigating engines.” Lewis v. Casey, 518 U.S. 343, 255, 360 (1996).
Rather, prisons must provide only those resources necessary to allow inmates “to present
their grievances to the courts—a more limited capability that can be produced by a much
more limited degree of legal assistance.” Id. at 360.
ORDER VACATING Dkt. 35 and AMENDED MEMORANDUM DECISION AND ORDER - 4
Plaintiff has not shown that the resources available at ISCC are insufficient to
permit him to adequately present his claims to this Court. As the Court has already
explained with respect to Plaintiff’s motion for appointment of counsel, Plaintiff has been
able to represent himself competently throughout this litigation. Therefore, Plaintiff’s
Motion to Stay Pleadings will be denied.
3.
Motion for Reconsideration of the Initial Review Order and Review of
Complaint
In the Initial Review Order, Judge Dale analyzed Plaintiff’s Complaint and
determined that Plaintiff could proceed on his petition-for-redress and retaliation claims.
Dkt. 10. Plaintiff now contends that Judge Dale did not analyze his free speech claims
and asks that this Court do so. Dkt. 17 at 2.
The Court will grant in part Plaintiff’s Motion for Reconsideration and has
independently reviewed the Complaint and Judge Dale’s Initial Review Order. Although
that review has been de novo, the Court agrees with Judge Dale’s analysis and conclusion
that the Complaint states plausible petition-for-redress and retaliation claims.
Although the Initial Review Order did not explicitly analyze Plaintiff’s free speech
claims, that does not mean that Judge Dale did not consider them. In any event, the Court
has reconsidered Plaintiff’s free speech claims in this case in light of Judge Lodge’s
ruling in another of Plaintiff’s cases: Williams v. Fox, Case No. 1:16-cv-00143-DCN. In
that case, which is also a disrespectful-grievance case, Judge Lodge reviewed the current
state of First Amendment law regarding inmate grievances containing disrespectful
language—including Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995), abrogated in part by
ORDER VACATING Dkt. 35 and AMENDED MEMORANDUM DECISION AND ORDER - 5
Shaw v. Murphy, 532 U.S. 223 (2001), and Brodheim v. Cry, 584 F.3d 1262 (2009)—and
concluded as follows with respect to the claims that Plaintiff labeled as “free speech”
claims:
The context of an inmate’s exercise of free speech determines
how much protection is afforded the speech....
Verbal expressions of free speech in prison are treated
differently from written expressions. In both Bradley and
Brodheim, the Ninth Circuit drew an important distinction
between (1) the act of writing disrespectful words in a
grievance directed to prison officials, and (2) the legitimate
interest a prison has in “prevent[ing] any open expression of
disrespect or any disrespectful communication between
prisoner and guard or between prisoner and prisoner.”
Brodheim, 584 F.3d at 1273 (emphasis added) (citing
Bradley, 64 F.3d at 1281); see also Custodio v. Idaho State
Bd. of Corr., No. 1:13-CV-00332-BLW, 2016 WL 5661984,
at *5 (D. Idaho Sept. 29, 2016) (unpublished).
Further, written expressions in documents other than prison
grievances appear to be treated differently than written
expressions contained within grievances. Compare Barrett v.
Belleque, 2011 WL 802707 (D. Or. 2011) (unpublished),
aff’d, 475 F. Appx. 653 (9th Cir. 2012) (unpublished), cert.
denied, 133 S. Ct. 318 (2012), with Richey, 2016 WL
7325218 (unpublished).
Because the free speech analysis of language uttered by
inmates necessarily depends on its context—written or
unwritten, grievance or non-grievance—the Court concludes
that Plaintiff does not have a freestanding free speech claim
that is separate from its context. Therefore, Plaintiff may not
proceed on such a claim, but, as explained below, he may
proceed with his First Amendment claims within the context
of (1) his right to petition the government for redress, and (2)
his right to be free from retaliation.
Dkt. 56 in Williams, 1:16-cv-00143-DCN, at 8-11 (footnote omitted).
ORDER VACATING Dkt. 35 and AMENDED MEMORANDUM DECISION AND ORDER - 6
Plaintiff later sought clarification of Judge Lodge’s analysis in that case, and the
Court explained that Plaintiff’s petition-for-redress claims were essentially the same as
his free speech claims, because the petition-for-redress claims “are the context in which
the Court will address” the free speech claims:
We are all talking about the same claims—we are simply
using different labels, apparently. The Court is using two
types of First Amendment labels as sub-identifiers to the
general description of “free speech” claims, as the Court’s
previous Order explained. Taking Plaintiff’s factual
allegations into consideration, in this case there is no practical
difference between a “free speech” claim and a “redress-ofgrievances” claim when it comes to written expressions of
speech in prison grievances.
Dkt. 73 in Williams, 1:16-cv-00143-DCN, at 2 (footnote omitted).
The Court concurs with Judge Lodge’s analysis and concludes that it applies to the
instant case as well. Plaintiff’s free speech claims are not, in essence, separate from his
petition-for-redress claims. Judge Lodge’s thorough analysis of the law on disrespectful
prison grievances is persuasive, and the Court will continue to use the label “petition-forredress” or “redress-of-grievance” claims as the context of the First Amendment free
speech claims upon which Plaintiff has been allowed to proceed in this matter.
DATED: May 3, 2018
_________________________
David C. Nye
U.S. District Court Judge
ORDER VACATING Dkt. 35 and AMENDED MEMORANDUM DECISION AND ORDER - 7
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