Lasater v. Tewalt
Filing
10
SUCCESSIVE REVIEW ORDER - Plaintiff's Amended Complaint (Dkt. 8 ) and this entire action are DISMISSED with prejudice. Signed by Judge Amanda K Brailsford. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (lm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KYLE LASATER,
Case No. 1:23-cv-00230-AKB
Plaintiff,
SUCCESSIVE REVIEW ORDER
vs.
JOSH TEWALT, CHAD PAGE, and
WARDEN JAY CHRISTENSEN,
Defendants.
Pending before the Court is an Amended Complaint filed by Plaintiff Kyle Lasater
(Plaintiff). (Dkt. 8). Having reviewed the Amended Complaint, attachments, and other relevant
records from the original action from which this case was severed, the Court issues the following
Order.
STANDARD OF LAW FOR SCREENING PRISONER COMPLAINTS
The Court must screen prisoner and pro se complaints under 28 U.S.C. § 1915, liberally
construing the pleadings to determine whether any claims should be dismissed. A complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief”
under a cognizable legal theory. Fed. R. Civ. P. 8(a)(2). To state a claim under 42 U.S.C. § 1983,
a plaintiff must allege a violation of rights protected by the 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).
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Under Rule 8 and § 1915, the Court may dismiss some or all of the claims in a complaint
for any of the following reasons:
•
“insufficient facts under a cognizable legal theory,” Robertson
v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984),
meaning that the factual assertions, taken as true, are insufficient
for the reviewing court plausibly “to draw the reasonable
inference that the defendant is liable for the misconduct
alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
•
“lack of a cognizable legal theory,” Robertson, 749 F.2d at 534,
including failure to state a claim upon which relief may be
granted, 28 U.S.C. § 1915(e)(2)(B), or application of a
procedural bar sua sponte (on the Court’s own motion), see, e.g.,
Hebrard v. Nofziger, 90 F.4th 1000, 1006 (9th Cir. 2024)
(affirming dismissal based on Heck v. Humphrey, 512 U.S. 477
(1994));
•
frivolousness or maliciousness, 28 U.S.C. § 1915(e)(2)(B); or
•
seeking monetary relief from a defendant who is immune from
such relief. Id.
A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.” Iqbal, 556 US. at 678 (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)).
BACKGROUND
To screen the Amended Complaint in this case requires a review of its context. On July 25,
2022 (mailbox rule date), Plaintiff sought to join a potential class action case challenging
conditions of confinement initiated by inmate Jody Carr and signed by other inmates, in addition
to Carr, Case 1:21-cv-00409-BLW-DKG (Case 409). In Case 409, United States District Judge B.
Lynn Winmill determined that Carr had “a documented history of attempting to encourage others
to file lawsuits and/or filing lawsuits on their behalf that contain speculative and exaggerated
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claims.” (See Carr v. Nye, Case 1:22-cv-00332-JCC, Dkt. 13 at 2 explaining Case 409, Dkt. 48 at
2-11). In Case 409, Plaintiff filed a motion to join and a complaint, both drafted by Carr. (Case 409,
Dkts. 46, 46-1).
Upon initial screening in Case 409, Judge Winmill determined that he could not distinguish
each inmate’s claims from Carr’s claims. Significantly, all of the many inmate concern forms and
grievances attached to the original joint Complaint were Carr’s; none were from other inmates.
(See Dkt. 3-2 at 21-26; 3-3 at 2-26; Dkt. 3-4 at 2-25; Dkt. 3-5 at 2-7).1 Therefore, Judge Winmill
ordered each inmate to file his own amended complaint “stating allegations specifying the ‘who,
what, where, when, why, and how’ of each of their claims, whereupon the Court would determine
the best procedural vehicle for the claims to proceed.” (Case 409, Dkt. 20 at 2).
Despite Judge Winmill’s efforts to have each plaintiff describe his own claims, Carr drafted
nearly all of the separate amended complaints, many containing identical allegations. Judge
Winmill deemed it “important for the Court to obtain more information about the conditions of
confinement in IMSI close-custody unit J-1, other than from Carr’s pen.” (Case 409, Dkt. 20 at
11-12). Judge Winmill ordered a Martinez report to be accompanied by prison records from
Defendants and a Spears hearing for other inmates to explain which portions of their pleadings
were based on personal knowledge. (See Case 409, Dkts. 48, 80). Carr was provided an opportunity
to amend his own claims in his severed case. (Case 1:22-cv-00200-DCN, Dkts. 1, 5).
One class representative’s exhaustion “is enough to satisfy [the PLRA’s exhaustion]
requirement for the class,” Gates v. Cook, 376 F.3d 323, 330 (5th Cir. 2004), but the screening
analysis as to whether a class action should be authorized must be based on the allegations of all
inmates who have signed a pleading.
1
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The instant case was severed from Case 409 because Plaintiff’s claims arose from a
different prison facility. Plaintiff was ordered to file an amended complaint by June 5, 2023
(Dkt. 2), but he was released on parole and did not file an amended complaint. On November 27,
2023, an Order Requiring Plaintiff to Act was issued. (Dkt. 4). On December 11, 2023, having
been re-incarcerated, Plaintiff sought an extension of time to file his amended complaint, which
was granted. (Dkts. 5, 6). Some or all sections of Plaintiff’s Amended Complaint again were
drafted by Carr. Plaintiff attested to the truthfulness of the allegations by signing the Amended
Complaint under penalty of perjury. (Dkt. 8).
Plaintiff describes himself as a close-custody inmate diagnosed with mental health
problems, who was on “strong mental health medications” at the time of the alleged incidents. (Id.
at 2). Plaintiff’s Amended Complaint contains some contradictory allegations, which may have
arisen from differences between the interests of the drafter of the Complaint and the signatory of
the Complaint. For example, Plaintiff’s asserted theory is that double-celling of close-custody and
mentally ill inmates caused a serious risk of violence and sexual assault to him between 2020 and
2022. He asserts that all such inmates should be single-celled for their safety and the safety of
others. However, Plaintiff’s attachments to the Amended Complaint show that he was not a victim,
but the perpetrator, of many incidents of violence both at ISCC (which he claims is unreasonably
dangerous) and in other facilities. Another unique factor related to Plaintiff’s reports of violence
is that, in two of four instances, Plaintiff’s close-custody cellmates were his biological brothers—
Shane Lassater (Shane) and Camron Belcher (Belcher). Because of these various factors, the Court
has searched for a causal connection between the allegations that Defendant Chad Page officially
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sanctioned a policy of double-celling close-custody and mentally-ill inmates beginning in
December 2019 (Dkt. 8 at 3) and Plaintiff’s harm or risk of harm during 2020 through 2022.
During the time period at issue, Plaintiff alleges that he (1) suffered physical assaults from
other close-custody inmates as a result of double-celling; (2) witnessed inmate-on-inmate violence
and inmate-on-staff violence; (3) was locked in his cell 24 hours a day for weeks with little
telephone, visiting, and laundry time and only a 10-minute shower every three days; and (4) was
provided very little indoor recreation and no outdoor recreation. These allegations are similar to
those in Case 409, except those allegations arose from the Idaho Maximum Security Institution
(IMSI), and those plaintiffs particularly asserted that close-custody inmates (who tend to attack
others) should not be housed with protective-custody inmates (who tend to be the target of attacks),
and close-custody inmates should not have been permitted open common area time with
protective-custody inmates, because the common time facilitated assaults. (See Case 409).
In the Initial Review Order in this severed case, the Court gave Plaintiff specific
instructions for drafting an amended complaint:
In his new ISCC case, he will be required to file an amended
complaint containing only his claims arising from confinement at
ISCC against only those Defendants who personally participated in
the alleged violations, along with one Defendant with authority to
implement injunctive relief, should such relief be granted.
The amended complaint must contain no allegations about
Jody Carr, who is pursuing his claims in a different case. The
amended complaint must state facts specifying the “who, what,
where, when, why, and how” for each of Plaintiff’s own personal
claims in plain and simple language based on Plaintiff’s own
personal knowledge and must be signed under penalty of perjury.
For example, Plaintiff alleges lack of out-of-cell time[,] [] outdoor
recreation, opportunities to use the telephone, and regular showers.
Plaintiff alleges that he has been housed at ISCC since 2018, which
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is five years ago. Therefore it is important for him to pinpoint the
dates for each of these allegedly unlawful conditions.
He also alleges that he was involved in a physical altercation
with Camron Belcher in 2020. He should specify whether he has
been involved in any other altercations in the five years he has been
housed at ISCC, and, if so, specify the dates and details of those
incidents.
(Dkt. 2 at 1-2).2
Upon review of the Amended Complaint, the Court concludes that Plaintiff has not
complied with the prior Court Order requiring him to state sufficient facts to support a plausible
claim. (Id.). Plaintiff had approximately eighteen months, including time when he was not
imprisoned, to investigate facts and/or retain contingency or pro bono counsel. Because Plaintiff
had adequate instructions, time, and opportunity to amend his pleadings, but has failed to provide
sufficient facts to state a plausible claim, the Court will dismiss the “Verified Amended Prisoner
Complaint” with prejudice, for the following reasons. (Dkt 8).
REVIEW OF AMENDED COMPLAINT
1. Claims of Serious Risk of Violence Caused by Double-Celling Inmates
A. Eighth Amendment Standard of Law
The Eighth Amendment to the United States Constitution protects prisoners against cruel
and unusual punishment. It does not protect against government officials’ negligence, because,
such actions are not deemed an abuse of governmental power under § 1983, but rather “a failure
2
The Court requested that Plaintiff provide information about other altercations that reached
back five years to help assess Plaintiff’s claims that Defendants had knowledge that celling
customs and policies caused an unreasonable level of violence at ISCC. However, the federal
statute of limitations period reaches back only two years and one month from the date of Plaintiff’s
first filing in Case 409. Because Plaintiff filed his first complaint on July 25, 2022, the earliest
claims he can assert here are from June 25, 2020.
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to measure up to the conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332
(1986).
An Eighth Amendment claim has two components. The first is an objective showing:
Plaintiff must allege facts showing that he is “incarcerated under conditions posing a substantial
risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks
omitted). The second component is a subjective showing: that Defendant acted with “deliberate
indifference,” which is “more than mere negligence,” but “less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result.” Id. at 835. To exhibit deliberate
indifference, a prison official “must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference.”
Id. at 837. To satisfy the subjective component, a prisoner must show that a prison official was
aware of and recklessly disregarded an excessive risk to an inmate’s health or safety, which means
drawing the inference from the factual circumstances that a substantial risk of harm exists, and yet
ignoring it. Id.
“Having incarcerated persons with demonstrated proclivities for antisocial criminal, and
often violent, conduct, having stripped them of virtually every means of self-protection and
foreclosed their access to outside aid, the government and its officials are not free to let the state
of nature take its course.” Id. at 833 (internal quotation marks, citation, and alterations omitted).
But even an obvious danger does not result in liability if the official is not subjectively aware of
it. Id. at 843.
For example, in Wilk v. Neven, 956 F.3d 1143 (9th Cir. 2020), Plaintiff and inmate Nunley
were housed together in Unit 8, one of two protective-custody units (7 and 8) in the prison. Nunley
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threatened to attack and kill Wilk. Immediately, Wilk reported the threat to his unit floor officer
and was moved to Unit 7 for his protection. Id. at 1145-46.
However, opportunities for contact between the inmates in Units 7 and 8 existed. For
example, inmates from the two units passed each other in the yard while inmates were waiting to
go to classes or medical appointments. Wilk filled out documentation outlining his need
for protection and requesting that Nunley be placed on Wilk’s administrative “enemy list,” which
would warn prison staff that Nunley posed a threat to him. Officials did not place Nunley on
Plaintiff’s enemy list. Four months later, Nunley attacked Wilk in the yard between Units 7 and 8.
“Nunley allegedly exited his cell without authorization and attacked Wilk with stones, gravel, and
his fists.” Id. at 1146. On these facts, the United States Court of Appeals for the Ninth Circuit held
that Wilk had stated sufficient facts about a substantial risk of harm to overcome summary
judgment. Id. at 1150.
B. Plaintiff’s Claims of Unreasonable Risk of Violence
Plaintiff alleges there were “approximately one to two acts of violence and/or sexual
assaults every week on every double-celled close custody tier . . . [a]s well as, attacks on staff quite
often.” (Dkt. 8 at 4). To support this general allegation, he first relies on four incidents within his
personal knowledge: (1) he and his cellmate assaulted another inmate in 2018 on D-1 (close
custody/protective custody); he himself was assaulted on D-1 in 2019 and 2021; and he was
assaulted again in “close-custody only” Unit G-1 in 2022. (Dkt. 8 at 4).
He also relies on the Martinez report from Case 409, where IMSI inmates were permitted
to go forward with their unreasonable risk of violence claims as vulnerable inmates open to inmate
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attacks by dangerous inmates in the common areas, rather than dangerous inmates being doublecelled with each other. (See Case 409, Dkt. 57 15-17).
Finally, he relies on decades-old findings of the United States District Court in Balla v.
Idaho State Bd. of Corr., 595 F. Supp. 1558 (D. Idaho 1984), reversed on other grounds, 869 F.2d
461 (9th Cir. 1989). In that 1984 prison class action case that was closed in 2022, a federal court
judge in the 1980s had discussed the dangers of double-celling close-custody inmates in a different
prison facility, Idaho State Correctional Institution, citing reasons of cell size and the fact that there
was an “undisputed . . . policy of placing every incoming inmate to the penitentiary in close custody
result[ing] in the brutal rape of virtually every young man assigned to close custody. This
indiscriminate policy was and is constitutionally impermissible.” Id. at 1579.
The Court will now review the Amended Complaint’s supporting factual allegations—
Plaintiff’s personal incidents, the Case 409 Martinez report, and the Balla case information.
C. First Incident of Violence
The first personal incident occurred on October 4, 2018. Plaintiff was a perpetrator, not a
victim, in this incident involving victim Nathan Bussell. At that time, Plaintiff’s cellmate was one
of his incarcerated brothers, Shane. After Plaintiff, Shane, and Bussell had argued in the showers
and exited, Shane approached Bussell and began to attack him with closed fists to his torso and
head. Both Lasater brothers were examined after the incident and found to have wounds consistent
with their involvement in an altercation. (See Case 409, Dkt. 57-5 at 26). It was recommended that
the Lasaters not be housed on the same walk as Bussell in the future. (Id. at 27).
This incident occurred beyond the statute of limitations, and thus it serves only to show it
gave certain notice to prison officials. This incident would have provided prison officials with
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notice that the Lasaters should not be housed with Bussell again, and, in fact, a notation to that
effect was made in the inmates’ files. (Id. at 27). It may have given notice that other inmates should
be protected from Plaintiff, but not vice versa. It may have given notice that Plaintiff should not
be housed with Shane, because it gave them opportunity to commit joint wrongdoing. 3 But there
was no clear connection between the double-celling of inmate perpetrators and the attack of
another inmate from a different cell in a common area. If inmates wanted to plan together to assault
someone else, they could easily have made the plan during out-of-cell time. This incident shows
only that close-custody inmates may attack each other in groups or in common areas, just as
general population inmates may attack each other in groups or common areas. This incident does
not support Plaintiff’s claim of a serious risk of violence caused by double-celling close-custody
and/or mentally ill inmates together.
D. Second Incident of Violence
The second personal incident occurred seven months later, on May 6, 2019, when Plaintiff
was attacked by inmate Casey Young. There are no allegations that Plaintiff and Young were
cellmates at the time, and the IDOC Information Report shows that this attack happened in a
common area. (See Case 409, Martinez Report, Dkt. 57-5 at 6, Exhibit 37 at 1-5). There is
insufficient factual information to show that the assault was caused by prison officials’ December
2019 official decision to double-cell close-custody and/or mentally ill inmates, or any prior
decision to test out such a policy as of May 6, 2019.
3
Several years after the incident, IDOC investigator Sergeant Eixenberger noted the doublecelling of the Lasater brothers had facilitated their ability to “band together” to attack another
inmate, but this cause-and-effect theory is different from the one Plaintiff uses as the foundation
of his claims—that cellmates are dangerous to each other. (See Dkt. 8-1 at 2; Martinez report in
Case 409, Exhibit 37, pp. 6-7).
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E. Third Incident of Violence
On February 28, 2021, almost two years after the Young incident, Plaintiff was attacked
by another of his incarcerated biological siblings, Camron Belcher, while the two were cellmates
in Unit D-1. (Dkt. 8 at 6). A prison record notation of a post-altercation interview between IDOC
mental health staff member Hoyle and Belcher states: “The corporal reported that they were aware
that he has a mental health condition and they were concerned about his safety and wellbeing.”
(Case 409, Dkt. 57-5 at 20). Belcher was found to be free from suicidal ideation; he “expressed
hopefulness for the future”; he was agitated at first, but calmed down. (Id.). Hoyle cleared Belcher
to return to his assigned housing. (Id.). Plaintiff asserts that he himself had a mental health
condition for which he takes “strong mental health medications.” (Dkt. 8 at 2).
The mere presence of inmate mental health conditions (many of which are managed by
prescription medications) does not show that prison officials drew an inference that these two
brothers posed a risk of serious bodily harm to one another. Plaintiff has not alleged that, before
the attack, he reported to prison officials that he believed Belcher posed a serious risk of bodily
harm and should not be housed with him. Nor did Plaintiff report that he, himself, was a serious
risk of harm to Belcher (and, in fact, Plaintiff restrained himself from counterattacking Belcher
during the incident, showing that, despite his mental illness conditions, Plaintiff was able to refrain
from engaging in a physical altercation).
A description of the incident was included in the Martinez report in Case 409:
A review of IDOC records reveals that Offender Lasater and
Offender Belcher are brothers and did engage in a physical
altercation on February 28, 2021, while they were celled together at
ISCC. See Exhibit 36. Reading from the compiled reports, officers
heard the sound of a verbal altercation inside their cell, raising
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concerns about the potential for escalation into a physical
altercation. See Exhibit 36, pp. 2, 4.
Officers investigated, and attempted to determine whether further
intervention was warranted. Id. Shortly after officers had attempted
to communicate with the offenders in their cell, Offender Belcher
began to strike Offender Lasater. Id. Officers ordered them to cease
fighting, and after the officers threatened to deploy OC spray into
the cell, both offenders became compliant. Id. They were medically
assessed, and no injuries were noted. See Exhibit 36, p. 1.
Both were moved to segregation out of concerns for their safety, and
to allow an investigation to be done. Id. DORs were issued as
punishment for engaging in violence. See Exhibit 36, p. 2.
(Dkt. 57 in Case 409).
Plaintiff (or the drafter of his Amended Complaint) attempts to bolster this claim by falsely
asserting that Plaintiff’s prison records show that, in 2018 (before Belcher attacked him in 2021),
prison officials had placed a note in Plaintiff’s file strongly recommending that Plaintiff should
not be housed with his brothers. Id. However, the attachment submitted to support this allegation
shows that (1) the recommendation took place on May 5, 2022, more than a year after Belcher
attacked him; and, as noted above, (2) the reason for the recommendation was that housing Plaintiff
and his brother Shane together gave them opportunity to plan an attack on Bussell. (Dkt. 8-1 at 2).
The 2018 report noted that neither Lasater brother should be housed with Bussell. (Case 409,
Dkt. 57-5 at 27.)
Plaintiff has not alleged plausible facts showing that Belcher’s attack on him was caused
by Defendant Page’s decision to house close-custody and/or mentally ill inmates in double cells,
as opposed to being caused by some personal issue between Plaintiff and his brother that was
unknown and unreported before the attack. If the facts pleaded are “merely consistent with a
defendant’s liability,” the complaint has not stated a claim for relief that is plausible on its face.
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Iqbal, 556 U.S. at 678 (internal quotation marks omitted). This incident does not support a claim
that a double-celling of close-custody and/or mentally ill inmates caused an unreasonable risk of
violence at ISCC.
F. Fourth Incident of Violence
Plaintiff was transferred from ISCC Unit D-1 (close custody/protective custody) in July
2021, to Mental Health Unit 16 for one day. Then, because he was found not to be qualified to live
in Unit 16, he was transferred to a “close custody only” housing unit, G-1. (Dkt. 8-1 at 1).
The fourth incident occurred in Unit G-1 on April 28, 2022 (See Dkt. 8-1). Plaintiff was
attacked in his cell by cellmate Timothy W. Allen. (Id. at 4).
Plaintiff alleges that, the day before the incident, he pleaded with his case manager by email
to move him, because he knew that the inmates in his unit had been planning all week to attack
him because he had come from “protective custody.” (Dkt. 8 at 5). Elsewhere in his Amended
Complaint he asserts he was a “close-custody” inmate (id. at 2) and his “CIS” prison housing
records show he had come from close-custody PC (Dkt. 8-1 at 1). Plaintiff provides no facts to
show who received the emergency email (if anyone); no facts to show when the receiving
employee read the email (if ever); no facts to show how Plaintiff knew that inmates were planning
all week to attack him; and no facts to show, if he knew this all week, why he did not do more to
notify prison staff, like directly speaking to on-duty correctional officers or turning in a concern
form and grievance.
Plaintiff’s supporting attachment (Sergeant Eixenberger’s interview of Plaintiff after the
Allen assault to assess his request for protective custody) does not show that he requested
protective custody before the Allen attack, but only that he did so afterwards. (Dkt. 8-1 at 1). Nor
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does the attachment show that Plaintiff reported to Eixenberger that he had pleaded by email to his
case manager to be moved because the inmates on his unit were planning all week to attack him
because he came from protective custody. (See Dkt. 8-1). Additionally, Judge Debora Grasham’s
Report and Recommendation issued in Case 409, concluded: “A review of Offender Lasater’s
IDOC records at ISCC reveals he did not file any grievances related to requesting PC while
incarcerated at ISCC during this time frame. (See Declaration of Syvanna LaBonte, para. 4.”
(Case 409, Dkt. 57 at 35)).
This incident does not show that any Defendant was on notice that Plaintiff felt at risk of
serious harm from Plaintiff Allen or from other G-1 Unit inmates. Plaintiff’s allegation that he sent
an email to an unknown IDOC employee “the day before” the attack, when he knew the inmates
had been planning the attack “all week,” is too vague to show that any Defendant had notice of it.
Unlike the other three personal incidents, the fourth incident does provide some evidence
that a close-custody inmate attacked another close-custody inmate who was his cellmate—but it is
the only incident in the record supporting Plaintiff’s theory, and it happened in a different unit.
G. Other Reported Attacks
Plaintiff cites to the Martinez report in Case 409 to show that many attacks occurred in
other double-celled close-custody units (Dkt. 8 at 7); from this, he concludes that, generally,
double-celled close custody is unreasonably dangerous. (Id.). Plaintiffs in Case 409 were permitted
to proceed on their claim that their unit was unreasonably dangerous, based on the Martinez report
showing various acts of violence from prison records and the plaintiffs’ personal knowledge.
As noted above, the IMSI Martinez report claims were based on a different causal
allegation: that close-custody inmates should not be housed with and have open access to
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protective-custody inmates. The Court finds that the IMSI Martinez report claims of violence at
IMSI does not support Plaintiff’s claims because the causal elements of the claims are different;
the facility is different; and, in Case 409, inmates provided specific plausible facts based upon
personal knowledge to support their claims of a pattern of unreasonable violence.
The only other attacks that Plaintiff identifies are those in which he was the perpetrator at
various facilities where he has been housed. At the “CAPP-Boise” facility, Plaintiff assaulted
inmate Vickers on February 25, 2017. (Dkt. 8-2 at 7). At ISCI, Plaintiff assaulted inmate Carver
on April 20, 2017, after Plaintiff came onto the tier and started an argument with Carver. (Dkt. 82 at 5). At ISCI, Plaintiff came from a different cell and assaulted inmate Duff while Duff was
sleeping on July 6, 2017. (See Dkt. 8-2 at 3-4). At IMSI, Plaintiff and inmate Cavin engaged in a
fight on the upper level of Tier 2 on September 1, 2017. (Dkt. 8-2 at 2 (partial record); Case 409,
Dkt. 57, Exhibit 37, pp. 8-9). These incidents caused by Plaintiff do not support particular claims
of a serious risk of violence at ISCC caused by double-celling, but perhaps could support a claim
(brought by a victim of Plaintiff or one who feared him) that Plaintiff was a serious risk of violence
to other inmates, regardless of where he was housed.
H. Balla Court Findings
As noted above, the Balla Court made findings decades ago, from a different facility, and
based on additional facts, such as the size of the ISCI cells and that unscreened inmates were
permitted to live with young male inmates, causing an unreasonably high rate of sexual assaults
upon the young inmates by the unscreened inmates. 595 F. Supp. at 1579-80 (citing an
“indiscriminate” and “constitutionally impermissible” “policy of placing every incoming inmate
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to the penitentiary in close custody result[ing] in the brutal rape of virtually every young man
assigned to close custody”).
Prison officials began to make changes to administration of the close-custody units even
before the Balla trial began, prompting the court to find and conclude:
The authorities at ISCI are making a commendable effort to
eliminate double-celling in the close custody units in Houses 8 and
9. Movement on the tier has been significantly circumscribed and
the level of violence has been greatly reduced. As presently
programmed and maintained, this court is unable to find that close
custody at ISCI is constitutionally impermissible in the way that it
is now being administered. Hopefully, the Director of Corrections,
the Warden at ISCI and the State Board of Corrections will be able
to continue this program, and ultimately where an inmate is kept in
close custody for most of the 24-hour day, he would not have to be
double-celled. . . .
As a result, this court concludes that close custody, as it presently
exists, does not violate prisoner’s constitutional rights.
Id.
When the Balla case was re-opened in 2005, the Court preserved the injunctive order
pertaining to ISCI Houses 8 and 9, finding that it met the 1996 Prison Litigation Reform Act
(PLRA)4 requirements for continuing pre-1996 injunctive relief orders. The Court found the
injunctive relief order “extends no further than is necessary to correct the Eighth Amendment
violations, is narrowly drawn, and is the least intrusive way to correct the violations. The
permanent injunction was narrowly drawn because it placed population caps on four units at ISCI
[Units 9, 10, 11, and 13].” Balla v. Idaho Bd. of Correction, No. CV81-1165-S-EJL, 2005 WL
2403817, at *10 (D. Idaho Sept. 26, 2005), clarified on denial of reconsideration, No. CV81-1165S-EJL, 2005 WL 3412806 (D. Idaho Dec. 9, 2005). When Balla concluded in 2022, this injunction
4
Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq.
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was uncontested and remained in place, but the United States Court of Appeals for the Ninth
Circuit held that no other injunctions remained. Balla v. Idaho, 29 F.4th 1019, 1028 (9th Cir. 2022).
In Balla, there never was an injunction in place as to all prison facilities’ close-custody units, the
ISCC facility, or ISCC close-custody units.
Because the Balla findings and injunctions were particular to facts existing in identified
housing units at a different prison facility, Plaintiff cannot rely on statements or evidence in that
case to support a present-day claim that double-celling close-custody inmates in a different facility
is unconstitutional. To allow a plaintiff to make this leap would contravene the purpose of the
PLRA’s significant restraints on injunctive relief. The Court takes judicial notice that the IDOC’s
current published policy is to utilize a Reception and Diagnostic Unit (RDU) at ISCI, where inmate
assessment occurs; nothing suggests that inmates are placed together in close custody
indiscriminately.5
Inmates are screened in a designated “Receiving Diagnostic Unit.” (See Standard
Operating Procedure 303.02.01.001. chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/
https://forms-idoc.idaho.gov/WebLink/0/edoc/284983/Classification%20Inmate%20%20SOP.pdf) (accessed 12/19/2024).
5
The IDOC website explains:
The first stop for everyone who is sentenced to prison in Idaho is a
reception and diagnostic unit (RDU). The men’s RDU is at Idaho
State Correctional Institution south of Boise. The two women’s units
are at the Pocatello Women’s Correctional Center (PWCC) and the
South Boise Women’s Correctional Center (SBWCC). Your loved
one will be at RDU for two to four weeks. During this time, they
will undergo a variety of assessments, including physical and mental
health exams, to determine their educational and treatment needs.
The information that is gathered also helps determine at which
facility your loved one will be living.
SUCCESSIVE REVIEW ORDER - 17
In addition, forty years ago, isolation of troublemaking inmates was a laudable goal, as
noted in the 1980s Balla decisions, but, today, it is known that isolation of inmates can be
damaging to a person’s psychological well-being.6 Hence, additional factors not considered in the
1980s must be accounted for in the safety and well-being equation today. There is no constitutional
(“What to Expect When Your Loved One is Incarcerated” online at https://www.idoc.idaho.gov/
content/document/family-friends-guideIDOC) (accessed 12/19/2024).
Since 2005, as part of its PREA responsibilities, IDOC Standard Operating Procedures
provide:
During the Reception and Diagnostic process, all offenders entering
the Department will attend an educational program designed to
prevent the occurrence of rape and sexual activity. The education
will include how to avoid risk situations, safely report rape and
sexual activity, and obtain counseling if victimized. Offenders will
receive the Department’s handbook, “Maintaining Dignity, Prison
Rape and Sexual Activity Elimination.”
Standard Operating Procedure 325.02.01.001 (available online at chrome-extension://
efaidnbmnnnibpcajpcglclefindmkaj/https://www.prearesourcecenter.org/sites/default/files/library
/preadocidaho.pdf) (accessed 12/19/2024).
6
In 2019, the Fourth Circuit held that solitary confinement conditions on death row violate
the Eighth Amendment. Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019). The Third Circuit Court
of Appeals held that from 2020 “forward, it is well-established in our Circuit that . . . prolonged
solitary confinement satisfies the objective prong of the Eighth Amendment test and may give rise
to an Eighth Amendment claim, particularly where, as here, Defendants have failed to provide any
meaningful penological justification.” Porter v. Pennsylvania Dep't of Corr., 974 F.3d 431, 451
(3d Cir. 2020) (citing Porter v. Clarke, 923 F.3d 348 (unrelated case). See also Thomasson v.
Premo, No. 6:14-CV-01788-MO, 2017 WL 2403565, at *3 n.1 (D. Or. June 2, 2017) (unpubl.)
(stating that the court was “sensitive to research suggesting that the conditions to which inmates
in solitary confinement are subjected often lead to profound psychological peril for the inmate,
and as such, the use of solitary confinement itself may implicate an Eighth Amendment
violation.”); see also Ruiz v. Texas, 580 U.S. 1191, ___ (2017) (Breyer, J., dissenting from denial
of stay of execution) (noting that the petitioner “developed symptoms long associated with solitary
confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations,
disorientation, memory loss, and sleep difficulty”).
SUCCESSIVE REVIEW ORDER - 18
right to being single-celled. That determination must be institution-, inmate-, and fact-specific. In
the modern era, the Constitution requires that prison officials consider numerous factors in
determining housing assignments, including the goal of limiting the time inmates live isolation,
insofar as that is possible. Plaintiff’s reliance on the Balla case does not provide sufficient
allegations to form a plausible claim in a different era, in a different facility, and under different
circumstances.
I. Conclusion
The Court has considered the personal incidents alleged, not only as to Plaintiff’s attempt
to show a pattern of violence caused by double-celling constituting a risk of serious harm,7 but, as
to the fourth incident (the Allen attack),8 simply a one-time failure to protect Plaintiff. The Court
concludes that Plaintiff has provided insufficient facts to support either type of claim. Nothing in
the pleadings, record, Martinez report, or Spears hearing shows that any prison official reviewed
Plaintiff’s alleged emergency e-mail or that any official was otherwise notified that Plaintiff was
at risk of being attacked by a particular inmate or set of inmates. Even beyond showing notification
to a defendant, Plaintiff must have some facts showing that a defendant drew an inference that
Plaintiff was at risk of serious harm from Young, Allen, or the other inmates allegedly plotting the
Allen attack, and yet the Defendant recklessly ignored the risk of harm. The facts are not anything
The Court recognizes that an inmate “does not have to await the consummation of
threatened injury to obtain preventative relief,” but may file for injunctive relief from a threat of
harm. Farmer, 511 U.S, at 845.
7
8
The second incident, from 2019, is beyond the statute of limitations if construed as a standalone claim.
SUCCESSIVE REVIEW ORDER - 19
like Wilk, where the victim asked for protection from a serious known threat, but was ignored
before he was attacked by the inmate he had identified.
The Amended Complaint does not contain sufficient causal links between the doublecelling of close-custody and/or mentally ill inmates and Plaintiff’s injuries. In addition, the drafter
of the Complaint has misstated several key pieces of evidence contained in the prison record
attachments to attempt to state a claim. Regardless of who drafted the Amended Complaint,
Plaintiff has “verified” and “declare[d] under penalty of perjury” that “all statement [sic] herein,
are true to the best of [his] knowledge,” although his own attached exhibits show some of his key
allegations are not true. The claims that Defendants caused a serious risk of violence by doublecelling Plaintiff and other ISCC close-custody and mentally-ill inmates during 2020 through 2022
will be dismissed for failure to comply with a prior court Order (Dkt. 2 at 2) under Federal Rule
of Civil Procedure 41(b) and for failure to allege facts sufficient to state a plausible claim upon
which relief can be granted.
2. Claims of Serious Risk of Aggressive Sexual Assaults Caused by DoubleCelling Inmates
Plaintiff’s allegation that there was an unreasonable number of aggressive sexual assaults
on the ISCC close-custody unit has no factual basis. Plaintiff does not report that he was sexually
assaulted at ISCC. Nor does he provide specific facts showing that he himself had reason to be in
fear of sexual assault, such as recounting a pattern of assaults he witnessed.
The same serious sexual assault allegations were made in the Carr-drafted pleadings in
Case 409, from which this case was severed. After inmates testified at a Spears hearing to clarify
their own allegations, Judge Grasham concluded: “It was clear from Plaintiffs’ collective
testimony that the number of J-block sexual assaults and whether Plaintiffs actually witnessed such
SUCCESSIVE REVIEW ORDER - 20
assault w[ere] greatly exaggerated in Pleadings.” (See Dkts. 135, 136, 139 at 29 in Case 409
(sealed)). For example, “[a plaintiff] testified that the allegation in his Complaint that ‘99.1 percent
of Prison Rape Elimination Act [PREA] complaints appear to be covered up’ was not his own.
Dkt. 135, pp. 59-60.” (Case 409, Dkt. 139 at 31).
In Case 409, in addition to inmate testimony, the Court required prison officials to disclose
detailed records of sexual assault allegations and investigations at IMSI. (See Case 409, Dkt. 123,
Sealed IMSI PREA records). Judge Grasham found, concluded, and recommended:
The information provided shows that the sexual assault cases are
thoroughly investigated and routed to the facility PREA Compliance
Manager, who reviews the investigations and finalizes the findings.
See Teresa Jones Decl., Dkt. 57-2. The incidents reported were
categorized either as sexual abuse, because, consistent with PREA,
they included allegations of some type of inappropriate touching; or
as sexual harassment outside of PREA, because no inappropriate
touching was involved, a definition also consistent with PREA. A
few of the original sexual assault complaints were later confirmed
as false by the complainant during an interview. Other cases were
deemed consensual, based on interviews with both inmates. See
Sealed Exhibits 1 through 10.
When inmates say that they never see PREA allegations go very far,
it is unclear what they want to see happen. Inmates testified of prison
disciplinary proceedings for persons engaging in sexual acts. In
most instances where sexual abuse, verbal sexual harassment, or a
fear of sexual assault was reported by inmates, even where the report
was deemed “unfounded” after investigation, prison officials
nevertheless separated the inmates by moving the inmates into
different cells and/or walks.
Based on the foregoing, Plaintiffs have not stated a claim for relief.
There are not enough incidents showing that sexual abuse was an
unreasonable risk of danger or unchecked when reported, or that a
fear of sexual assault went without a remedy in J-block. Plaintiffs—
none of whom was sexually assaulted in J-block—have not stated a
viable threat of risk of injury claim. Any inmates who were sexually
assaulted in J-block have or had opportunity to bring grievances and
individual civil rights actions.
SUCCESSIVE REVIEW ORDER - 21
(Case 409, Dkt. 139 at 31-32).
Similarly, here, there are no plausible allegations showing a pattern of aggressive (or
nonconsensual) sexual assaults that occurred at ISCC during the time frame at issue. Plaintiff had
ample opportunity to find additional facts supporting this claim during the eighteen-month
amendment time frame, and yet he has proffered nothing more in support of this vague allegation.
This claim will be dismissed for failure to comply with a prior court Order (Dkt. 2 at 2) under Rule
41(b) and for failure to allege facts sufficient to state a plausible claim upon which relief can be
granted.
3. Retaliation
In the Amended Complaint, Plaintiff asserts that the Allen attack was the result of
retaliation by Defendants. He asserts that Defendants placed him in Allen’s unit as retaliation for
having participated in “Carr’s case and the February 2021 consolidated declaration of the D-1
inmates at ISCC and my/our request to make it a class action case” in Case 409. (Dkt. 8 at 4-5).
Plaintiff has failed to state a claim for relief with these vague allegations. He has not stated
who was responsible for moving him or why that person had a stake in the other litigation, which
would show that a motive for retaliation existed. Plaintiff has not stated how the prison official
who moved him would have known that inmates in that unit would later combine to induce Allen
to assault him after his placement in that unit. This claim does not comply with the previous Order
requiring any amended complaint to contain facts specifying the “who, what, where, when, why,
and how” of each of Plaintiff’s personal claims. (Dkt. 2 at 2). Rather, it is based completely on
speculation and is aimed at no particular defendant.
SUCCESSIVE REVIEW ORDER - 22
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a plaintiff to provide a
defendant fair notice of the claims against him. See also Twombly, 550 U.S. at 555. Claims must
be pleaded with sufficient specificity to put a defendant on notice of the allegations against him so
that the defendant can adequately prepare a defense. “Conclusory allegations that an
indistinguishable group of defendants essentially engaged in identical misconduct . . . are
insufficient to show that plaintiff is entitled to relief from any individual defendant.” Williams v.
Cnty. of Los Angeles Dep't of Pub. Soc. Servs., 2016 WL 8730914, at *5 (C.D. Cal. May 2, 2016)
(unpubl.) (emphasis in original); see Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal.
1988) (a plaintiff must allege the basis of his claim against each defendant and not lump them
together in broad allegations).
Because Plaintiff has had adequate time and opportunity to amend this claim, it will be
dismissed for failure to comply with a prior court Order (Dkt. 2 at 2) under Rule 41(b) and failure
to allege facts sufficient to state a plausible claim upon which relief can be granted.
4. Unit Lockdown and Exercise/Recreation Denial
Plaintiff asserts that, when he lived in Unit D-1 at ISCC, the unit was in a constant state of
lockdown. He states he was denied “basic human needs” and lists various services without any
elaboration, such as denial of “e.g., mental health care, medical care, and religious services,”
(Dkt. 8 at 17), and “job options, programs, religious services, or incentives” (id. at 8). Many of
these examples are not supported with any factual allegations whatsoever from Plaintiff’s personal
experience, but appear to be general allegations of the drafter included in other inmates’ pleadings.
For example, Plaintiff does not state he attempted to attend religious services and was prevented
from doing so. He does not provide facts that he was otherwise qualified to hold a job, be in a
SUCCESSIVE REVIEW ORDER - 23
program, or have “incentives,” especially given his history of being a perpetrator of repeated acts
of violence in the prison system.
It is clear from elsewhere in the Amended Complaint that Plaintiff was receiving “strong
prescription medication” for his mental illness, as noted above, and thus the allegation that he did
not have mental health care is exaggerated or false. He provides no instance of requesting, but not
receiving, health care. Relevant prison records show that, whether Plaintiff was a perpetrator or
victim of an incident, medical personnel examined him and provided medical care. (See Case 409,
Dkt. 57-5 at 24, 29). Plaintiff does provide, however, factual allegations personal to himself that
he could not exercise, go outside, use the laundry sink or microwave, call family or friends, or
meet with other inmates. (Dkt. 8 at 8).
A. Standard of Law
“[E]xercise is ‘one of the basic human necessities protected by the Eighth Amendment.’”
May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (quoting LeMaire v. Maass, 12 F.3d 1444, 1457
(9th Cir. 1993)). “[T]he Constitution requires [prison] officials to provide outdoor recreation
opportunities, or otherwise meaningful recreation, to prison inmates.” Norbert v. City & Cnty. of
San Francisco, 10 F.4th 918, 931 (9th Cir. 2021) (citation omitted). In Norbert, the Court
emphasized that it has never held that “the Eighth or Fourteenth Amendments categorically
required exercise to take place outdoors regardless of any indoor recreation options.” Id.
There is no “bright-line” rule setting forth the amount of time or circumstances under which
inmates may be denied out-of-cell exercise before the deprivation is considered “sufficiently
serious” to invoke Eighth Amendment protection. The Ninth Circuit has consistently held the
“long-term” denial of exercise may violate the Eighth Amendment. See Lopez v. Smith, 203 F.3d
SUCCESSIVE REVIEW ORDER - 24
1122, 1132-33 (9th Cir. 2000) (en banc) (holding a six and one-half-week denial sufficient to
satisfy the objective component of an Eighth Amendment violation); Keenan v. Hall, 83 F.3d
1083, 1089 (9th Cir. 1996), as amended 135 F.3d 1318 (9th Cir. 1998) (finding triable issues of
fact regarding six-month deprivation of exercise).
In Noble v. Adams, 646 F.3d 1138, 1143 (9th Cir. 2011), the timing of the deprivation of
exercise was at issue: the prison had experienced a major riot, and prison officials gradually eased
up the resulting lockdown. The Ninth Circuit Court held that it was not clearly established in
2002—nor in 2011—precisely how, according to the Constitution, or when a prison facility
housing problem inmates must return to normal operations, including outside exercise, during and
after a state of emergency called in response to a major riot, in which inmates attempted to murder
staff. See Norwood v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010) (rejecting claims that prison
officials had no need to continue exercise restrictions after initial investigation of assaults were
completed and finding defendants entitled to qualified immunity).
Courts have held that the lack of dayroom access alone, without an exercise component,
does not rise to the level of a constitutional deprivation, nor does it constitute an atypical or
significant hardship. See, e.g., Arsberry v. Illinois, 244 F.3d 558, 564 (7th Cir. 2001); Postlewaite
v. Godinez, No. 14-CV-501-JPG, 2014 WL 2892381, at *2 (S.D. Ill. June 26, 2014).
B. Plaintiff’s Lock-Down Claims
Plaintiff’s allegations that he could not use the laundry sink or microwave, call family or
friends, or meet with other inmates during lock-down, without additional facts, does not state a
plausible constitutional violation. While Plaintiff’s exercise claims may be of constitutional
significance, he has stated no particular dates for this claim, a requirement specified by the Court’s
SUCCESSIVE REVIEW ORDER - 25
prior Order. (Dkt. 2 at 2). Nor has he stated to whom he reported this problem or the nature of the
response. Without tying together a Defendant, notice to that Defendant, facts showing the
Defendant drew an inference of a serious risk of harm, and information that the Defendant failed
to remedy the risk despite drawing an inference. Plaintiff has not stated a plausible claim that any
Defendant acted with subjective deliberate indifference regarding Plaintiff’s reports of prolonged
lockdowns and failure to provide out-of-cell time, and adequate indoor or outdoor exercise in ISCC
Unit D-1.
Plaintiff asserts that he should be excused from providing facts because he does not have
any of his concern forms or grievances: he was “released from prison, then, rearrested, sent to
county jail, then to prison. Plaintiff’s copies are not in his possession because of this.” (Dkt. 8 at
19). However, Plaintiff has not explained why he did not use his concern forms and grievances to
find relevant facts when he was drafting his original Complaint in 2022, well before he was
released on parole. Nor has he stated whether he took his concern forms and grievances with him
when he was released, and, if so, where he left them when he was rearrested, and why he cannot
obtain copies of them from friends or relatives who took possession of them (or whether Plaintiff
simply abandoned his court records when he was rearrested).
Plaintiff has had eighteen months to research, investigate facts, and amend his Complaint.
If he did not have his offender concern forms or grievances at any point in time, he could have
requested copies from prison officials while he was in prison or on parole. He could have retained
an attorney to obtain records and pursue his case. If prison officials would not produce the records
directly to Plaintiff or a retained attorney, Plaintiff could have notified the Court of that decision,
and the Court could have issued an appropriate Order and extended the deadline for amendment.
SUCCESSIVE REVIEW ORDER - 26
Instead, Plaintiff seems to have done nothing in eighteen months to shore up his facts to state a
claim.
This conditions-of-confinement claim is subject to dismissal for several reasons. One
reason is that Plaintiff has not identified a defendant responsible for these conditions. Another is
that Plaintiff has not stated sufficient facts showing that the conditions resulted from the deliberate
indifference of prison officials, rather than a general worldwide pandemic lockdown. Plaintiff’s
claim is for the time frame between June 2020 and 2022. “On March 11, 2020, the World Health
Organization (WHO) declared COVID-19, the disease caused by the SARS-CoV-2, a pandemic.”9
On May 5, 2023, “[w]hile acknowledging the remaining uncertainties posted by potential
evolution of SARS-CoV-2, [the Emergency Committee on the COVID-19 pandemic] advised that
it is time to transition to long-term management of the COVID-19 pandemic,” recognizing the end
of the worldwide pandemic.10
Plaintiff had sufficient time and access to resources to obtain and clarify the facts
supporting his claim, both while on parole and in prison. Therefore, this claim will be dismissed
for failure to comply with a prior court Order (Dkt. 2 at 2) under Rule 41(b) and for failure to
allege facts sufficient to state a plausible claim upon which relief can be granted. See Hebbe v.
Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are construed liberally, a
plaintiff must allege facts sufficient to state a plausible claim).
9
See https://www.yalemedicine.org/news/covid-timeline (accessed 12/20/2024).
10
See https://www.who.int/news/item/05-05-2023-statement-on-the-fifteenth-meeting-ofthe-international-health-regulations-(2005)-emergency-committee-regarding-the-coronavirusdisease-(covid-19)-pandemic?adgroupsurvey=%7Badgroupsurvey%7D%26gclid=EAIaIQob
ChMI4Ojtsdbe_gIVjQRyCh07igt4EAAYASACEgJ9pfD_BwE%26fbclid=IwAR2M8EAyiSrAo
dhK9p- X582nHkP2AigpSX8pYIsLsPwqYh4SG26RGokGe7E (accessed 12/20/2024).
SUCCESSIVE REVIEW ORDER - 27
5. Denial of Due Process
Plaintiff also asserts that his due process rights were violated when Defendant Chad Page
revised the standard operating procedures so that inmates in close custody/protective custody
would not have the same privileges as those in administrative segregation, such as deletion of three
hours of out-of-cell time for close custody/protective custody, and inmates would not have the
same due process procedures, such as specific shorter time limits in between housing reviews.
(Dkt. 8 at 10, 15, 17).
To maintain a due process claim, Plaintiff must show that he had a liberty interest in three
hours of out-of-cell time per day. A prison policy or procedure does not necessarily reflect a
minimum constitutional standard. So long as prison policies satisfy minimum constitutional
requirements, the civil rights statute does not require a prison to comply with its “own, more
generous procedures.” Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other
grounds by Sandin v. Conner, 515 U.S. 472 (1995).
“The Due Process Clause standing alone confers no liberty interest in freedom from state
action taken within the sentence imposed.” Sandin, 515 U.S. at 480. In the prison context, liberty
interests “will be generally limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of
its own force . . . nonetheless imposes atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Id. at 484 (internal citations omitted).
There are insufficient facts supporting this claim—no dates or instances showing that
Plaintiff requested a hearing, review, or other due process procedure to be moved from the D-1
close-custody/protective-custody unit, or from the G-1 close-custody unit, and yet was denied a
SUCCESSIVE REVIEW ORDER - 28
hearing or other due process protections. When he asked to be placed in protective custody from
the G-2 close-custody unit after the Allen incident, he was provided with an extended interview,
to be followed by an administrative review. (See Dkt. 8-1 at 2). Plaintiff does not provide any
facts about the outcome of that request.
This claim will be dismissed for failure to comply with a prior court Order (Dkt. 2 at 2)
under Rule 41(b) and for failure to allege facts sufficient to state a plausible claim upon which
relief can be granted.
6. Conclusion
Plaintiff was provided with adequate instructions, adequate time, and adequate opportunity
for amendment of his claims. Importantly, Plaintiff was instructed to provide particular facts in his
Amended Complaint. He has not provided sufficient facts to support any of his claims. Defendants
could not properly defend in this lawsuit, where the allegations are general and no causal links
between a Defendant’s act and a claim or injury is supported by facts. Also important to the Court’s
decision to dismiss this action is that these claims arose from a past time period. Plaintiff can assert
allegations of present harm in proper concern forms, grievances, grievance appeals, and then seek
injunctive relief in a civil rights lawsuit, if necessary. Therefore, the pleadings, and this entire case,
will be dismissed with prejudice for failure to comply with a prior court Order (Dkt. 2 at 2) under
Rule 41(b) and for failure to allege facts sufficient to state a plausible claim upon which relief can
be granted for the time period 2020 through 2022.
SUCCESSIVE REVIEW ORDER - 29
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