Goodrick v. Field et al

Filing 21

INITIAL REVIEW ORDER. The Clerk of Court shall lift the stay and re-open this case. The Clerk of Court shall serve, via the ECF system, a copy of this Order and Plaintiffs Complaint (Dkt. 3 ) on the following counsel on behalf of Defendants. 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 (alw)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAN GOODRICK,
Case No. 1:19-CV-00088-BLW
Plaintiff,
INITIAL REVIEW ORDER BY
SCREENING JUDGE

v.
DEBBIE FIELD, DAVID
McCLUSKEY, CINDY WILSON, AL
RAMIREZ, D.W. RICHARDSON,
SGT. DAVID GOULD, C/O
CAMPBELL, CP. HOSFORD, C/O
BULZOMI, and K. BROWN,
Defendants.

The Clerk of Court conditionally filed Plaintiff Dan Goodrick’s Complaint as a
result of his status as an inmate and in forma pauperis request. The Court determined that
the Complaint presented a question of Idaho statutory interpretation that should be
certified to the Idaho Supreme Court. The Court stayed this action pending the Idaho
Supreme Court’s answer.
Having received and reviewed the answer of the Idaho Supreme Court, this Court
now lifts the stay in this case and enters the following Initial Review Order.

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REVIEW OF COMPLAINT
1.

Factual Allegations
Plaintiff is a prisoner in the custody of the Idaho Department of Correction

(IDOC), currently incarcerated at the Idaho State Correctional Institution (ISCI). He
asserts that he had been both working as a janitor and volunteering as the caretaker of an
incontinent inmate in the ISCI medical annex for almost a year. Plaintiff is handicapped
and asserts that this particular janitorial job was particularly well-suited for his
disabilities. Plaintiff alleges that when a new supervisor, Defendant David Gould, was
hired in the medical annex, Gould said he was going to fire all the janitors and hire
inmates from outside the annex.
Plaintiff asserts that Gould fired two janitors by falsely accusing them of theft.
One of those inmates pursued a successful grievance against Gould. When Plaintiff
learned of the firings, he wrote a concern form to Gould, stating:
I’m being squeezed out of being a janitor and what I’ve been
doing. Is it because of my age or disabilities or both? No
other living unit has outside janitors other than medical and
they are patients. I’ve busted my ass for months. Now it
seems all you want me for is to clean up urine and shit and
cut my hours to nothing. I’d like a response.
(Dkt. 3, Exhibit 2.) Defendant Campbell replied: “Your concern is noted and there are
other janitor working in unit that do no live there.” (Id. (verbatim).)
Plaintiff says that, “after receiving a response from Gould” (even though it was
Campbell), he filed a grievance against Gould. The grievance said essentially the same
thing as the concern form. (Dkt. 3, Exhibit 3.) Gould’s reply was that gender, race, and

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age are not factors in the hiring process and that it was possible inmates from outside the
unit would be hired. Warden Ramirez’s appellate reply was: “In reviewing the situation I
do not find any nefarious reason regarding why you were let go. The incentive work
program at ISCI is a privilege and not a right.” (Id.)
Nine days after Plaintiff filed the grievance, Campbell called him into the office
and said, “We have to let you go. Staff on the other shift say you’re too demanding.”
Plaintiff replied, “Why, because I ask them to stay off the phone or computer long
enough with their boyfriend to do their job?” (Dkt. 3, p. 10.) Plaintiff states that
Campbell then entered “false information” in his “C-Notes” stating Plaintiff “was let go
due to a negative attitude towards staff and inmates.” (Id., pp. 10-11.)
Plaintiff alleges that Defendant Gould directed Campbell to make the C-Note
entry in retaliation for filing a grievance against him. Plaintiff asserts that he later was not
able to get a hospice job because of the negative C-Note.
2.

Discussion
A.

Statutory Cause of Action

Plaintiff asserts that he and all IDOC prisoners have a state-created liberty interest
in being employed, arising from Idaho Code § 20-209:
Control and management of correctional facilities and
prisoners — rehabilitative services — Rules. (1) The state
board of correction shall have the control, direction and
management of such correctional facilities as may be
acquired for use by the state board of correction and all
property owned or used in connection therewith, and shall
provide for the care, maintenance and employment of all
prisoners now or hereinafter committed to its custody.

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Plaintiff asserts that this is a “very specific, clear, and unambiguous” mandate that the
Board of Correction must provide all inmates with employment during incarceration.
In interpreting this statute, the Idaho Supreme Court opined:
Idaho Code section 20-209 requires the Board to make
employment available for all prisoners in the form of: (1)
labor assignments as prescribed by the Board’s rules and
regulations; and/or (2) implementation of statutory work
programs managed by the Board in accordance with its rules
and regulation. The Board retains discretion to manage these
prisoner employment opportunities pursuant to its broad
control over the correctional system. Section 20-209 does not
create a right of paid or unpaid employment opportunities
during a prisoner’s period of incarceration or establish an
employer-employee relationship between the Board and the
prisoner. At a minimum, the Board must comply with
legislation controlling its responsibilities managing prisoner
employment and with its own rules and regulations.
(Dkt. 19.)
In determining whether a private right of action is contained in a statute, the Idaho
Supreme Court “focus[es] [its] inquiry [on] whether the legislature intended to create
such a private remedy.” Yoakum v. Hartford Fire Ins. Co., 923 P.2d 416, 421 (1996)
(citing Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979)). “In the absence of
strong indicia of a contrary legislative intent, courts must conclude that the legislature
provided precisely the remedies it considered appropriate.” Id. (citing Middlesex County
Sewerage Auth. v. National Sea Clammers, 453 U.S. 1, 15 (1981)).
The Idaho Supreme Court determined that I.C. § 20-209 does not establish a statecreated right for each prisoner to have a job during incarceration. The Idaho Supreme
Court is the “final judicial arbiter of the meaning of state statutes.” See Sass v. California
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Board of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006).1 Accordingly, Plaintiff
cannot proceed on his causes of action based on I.C. § 20-209.2
B.

Discrimination Causes of Action

Plaintiff includes the Americans with Disabilities Act (ADA)3as a legal basis for
his claims, but he has failed to include sufficient facts to support such claims.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678.
Title II prohibits public entities from discriminating against qualified individuals
with disabilities who seek to participate in programs, services, and activities provided by
public entities. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 208
(1998). The United States Supreme Court has held that Title II of the ADA extends to
prison inmates who are deprived of the benefits of participation in prison programs,
services, or activities because of a physical disability. Id., 524 U.S. 208 (holding that

1

Sass was overruled on other grounds by Hayward v. Marshall, 603 F.3d. 546 (9th Cir. 2010) (en banc)
(any right to release on parole arises from state law, not from the federal constitution), which itself was
overruled by implication in Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“No opinion of ours supports
converting California’s ‘some evidence’ rule into a substantive federal requirement. The liberty interest at
issue here is the interest in receiving parole when the California standards for parole have been met, and
the minimum procedures adequate for due-process protection of that interest are those set forth in
Greenholtz [v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).]”).
2

The state legislature’s recent clarifying change of the statute while this case has been pending has no
bearing on the outcome of this case.
3
Americans with Disabilities Act of 1990, § 1, et seq, as amended, 42 U.S.C. § 12101, et seq. (Title I), §
12132, et seq. (Title II).

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prisoner was denied access to boot camp program, the successful completion of which
would allow prisoner early parole).
However, the United States Court of Appeals for the Ninth Circuit has held that
Title II of the ADA does not apply to employment claims because “[o]btaining or
retaining a job is not ‘the receipt of services,’ nor is employment a ‘program[ ] or
activit[y] provided by a public entity.’” Zimmerman v. Oregon Dept. of Justice, 170 F.3d
1169, 1175 (9th Cir. 1999) (quoting 42 U.S.C. § 12132), cert. denied, 531 U.S. 1189
(Feb. 26, 2001) (nonprisoner context). The Ninth Circuit has not ruled on whether
employment of prisoners, with or without pay, might be considered a rehabilitative
“program.”
Regardless, Plaintiff has shown no causal connection between his age or disability
and his termination. Rather, his admission of rude and disrespectful language to staff and
the corresponding C-Note noting his “negative attitude toward staff” are sufficient
grounds for termination in “at-will” employment—which means that an employee can be
terminated for any reason except an illegal one. There are no plausible allegations in the
record to support Plaintiff’s assertion that he was fired on the basis of his age, disability,
or another illegal factor. Plaintiff has failed to state a claim upon which relief can be
granted.
C.

Retaliation Causes of Action

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, ... that such action (4) chilled the inmate’s exercise of his
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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).
The timing of an official’s action can constitute circumstantial evidence of
retaliation, but there generally must be something more than simply timing to support an
inference of retaliatory intent. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). In
other words, retaliation is not established simply by showing adverse activity by the
defendant after protected speech; the plaintiff must show a nexus between the two. See
Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (stating that a retaliation
claim cannot rest on “the logical fallacy of post hoc, ergo propter hoc, literally, ‘after
this, therefore because of this’”).
As noted above, Plaintiff admitted to Campbell that he told staff that they should
stay off the phone or computer long enough with their boyfriend to do their job. That
admission supports the stated reason for his termination and the C-Note that said he “was
let go due to a negative attitude towards staff.” Rude and disrespectful speech about staff
is not protected speech in a job setting. Plaintiff's allegations show that he was not
engaged in conduct protected by the First Amendment. See Quezada v. Herrera, 2012
WL 1076130, at *4 (E.D. Cal. Mar. 29, 2012), aff'd, 520 F. App'x 559 (9th Cir. 2013)

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(inmate’s verbalization to supervisor that inmates have to wear hairnets but Sacramento
personnel inspectors do not was not protected speech); Ruiz v. California Dept. of
Corrections, 2008 WL 1827637 at * 1, *3 (C.D.Cal. April 22, 2008) (prisoner’s
comments expressing dissatisfaction with his prison supervisor’s management skills was
not a matter of public concern protected by the Free Speech Clause); Whitfield v. Snyder,
2008 WL 397457 at *3 (7th Cir. Feb.14, 2008) (prisoner’s complaint about prison job
involved matters of personal, rather than public, concern and did not qualify as protected
speech).
Rude and disrespectful speech has no place in a work environment. Defendant
Campbell had a legitimate penological reason to terminate Plaintiff. In addition, Plaintiff
has not shown that Gould retaliated against him for filing a concern. In fact, it was
Campbell, rather than Gould, who answered the concern form and terminated him.
Neither has Plaintiff shown anything other than timing as ground for alleging that Gould
retaliated because of the grievance. Gould’s response in the grievance showed that Gould
knew the appropriate grounds for hiring and termination, and no retaliatory intent can be
gleaned from his response. Nothing in the record shows that Gould was not free to hire
the inmates of his choice once he became supervisor.
That Plaintiff now is having difficulty obtaining another job—even though he has
been recognized at the prison as an otherwise-qualified, hardworking employee—is a
result of his own inability to conform his actions to what is necessary in a work
environment. The C-Note he complains of reflects the non-protected admission made in

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his pleadings and exhibits. Plaintiff has failed to state plausible facts to support a
retaliation claim.
D.

Provision of Employment and Termination Records

Generally, pro se plaintiffs are permitted to amend their complaints. Here,
amendment appears futile because Plaintiff had admitted to the act that was the legitimate
basis for his termination, and his statutory causes of actions have become moot by the
Idaho Supreme Court’s interpretation of the statute at issue. However, out of an
abundance of caution, the Court will require Defendants to submit Plaintiff’s workrelated prison records in a Martinez report.4 Defendants may also provide affidavits or
explanations supporting the records in the Martinez report.
ORDER
IT IS ORDERED:
1. The Clerk of Court shall lift the stay and re-open this case.
2. The Clerk of Court shall serve, via the ECF system, a copy of this Order and
Plaintiff’s Complaint (Dkt. 3) on the following counsel on behalf of Defendants:

4

The Court has authority to request evidence to assess Plaintiff’s claims during the screening
process via a Martinez report. In Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), rather than dismissing
the complaint or sending it out for service and an answer, the district court ordered prison officials to
conduct an investigation of the incident to include an interrogation of those concerned. The transcripts of
the interrogations and an explanation by the officials were to be provided to the court to enable it to
decide the jurisdictional issues and make a screening determination under 28 U.S.C. § 1915(a). Id. at 319.
The Ninth Circuit approved the use of Martinez reports in In re Arizona, 528 F.3d 652, 659 (9th Cir.
2008), concluding that, “[a]s a permissible option within its broad discretion, a district court in an
appropriate case can issue a Martinez-style order that is reasonably tailored to the pretrial needs of the
district court to assess the case.”

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Mark Kubinski, Deputy Attorney General for the State of Idaho, Idaho
Department of Corrections, 1299 North Orchard, Ste. 110, Boise, Idaho 83706.
3. The Clerk need not send a waiver of service of summons at this time, because the
case remains in screening status.
4. Counsel for Defendants are requested to make a limited appearance for the
purpose of providing a Martinez report, supported by any relevant prison offender
concern forms, grievances, C-Notes, employment, hiring, and termination records,
and other documents relevant to the issues set forth above. The Martinez report
should be filed within 90 days after entry of this Order. The Court will then
provide instructions for amendment or an explanation of why the complaint will
be dismissed.
5. The Martinez report does not need to be in any particular format, but counsel can
present the report in any organized manner that makes sense in response to the
allegations of the Complaint and this Order. Exhibits that implicate privacy or
security concerns may be filed under seal or in camera, as may be appropriate.
Exhibits filed in camera must be accompanied by a privilege or security log that is
provided to Plaintiff.
6. Plaintiff may file a response of no more than ten pages to the Martinez report and,
if he desires, an amended complaint with a motion to amend, within 30 days after
the report is filed.
7. Plaintiff’s Request to Take Judicial Notice (Dkt. 16) is DENIED as moot.

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