Stuard v. Carlin et al

Filing 7

INITIAL REVIEW ORDER dismissing as moot 1 Motion for Leave to Proceed in forma pauperis. Signed by Judge Ronald E Bush. Courtesy copy mailed to Paul Panther per Order (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by krb)

Stuard v. Carlin et al

Doc. 7

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO

P A T R IC K STUARD, JR., C a s e No. 3:10-CV-067-REB Plaintiff, I N I T I A L REVIEW ORDER v. T E R E N A CARLIN, Warden ICI-O; B R E N T REINKE, Director IDOC, Defendants.

P la in tif f 's complaint was conditionally filed (Dkt. 5) by the Clerk of Court due to h is status as an inmate and his request to proceed in forma pauperis. The Court now re v ie w s the complaint to determine whether summary dismissal is appropriate under 28 U .S .C . §§ 1915(e)(2) and 1915A. Having reviewed the record, and otherwise being fully in f o rm e d , the Court enters the following Order. BACKGROUND A t the time his complaint was filed, Plaintiff was incarcerated at the Idaho C o rre c tio n a l Institute at Orofino (ICI-O). Plaintiff alleges that the named Defendants in th is case violated his First Amendment rights by denying him access to a copy of the book M e in Kampf, by Adolf Hitler. According to the complaint, Plaintiff asked for the

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procedure to obtain a copy of the book from the publisher, but Defendants denied the re q u e s t, citing the threat to "security and the orderly running of an institution." Compl., D k t. 3 at 3-4. Plaintiff first filed a "concern" form, and then filed an appeal, in which he g rie v e d that he was denied his First Amendment rights to free speech, and noted that M e in Kampf is about Hitler's formative years building the National Socialist German W o rk e r's Party, and not about the extermination of Jews. Attach. to Compl., Dkt. 3 at 9. Plaintiff further asserts that "Catholics, Jews and Mormons can have their materials [s]ent in , so should I." Id. DISCUSSION T h e Court is required to review complaints seeking relief against a governmental e n tity or an officer or employee of a governmental entity to determine whether summary d is m is s a l is appropriate. 28 U.S.C. §§ 1915 and 1915A. The Court must dismiss a c o m p la in t or any portion thereof which states a claim that is frivolous or malicious, that f a ils 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). To state a claim under 42 U.S.C. § 1983, the civil rights statute, a plaintiff must a lle g e a violation of rights protected by the Constitution or created by federal statute p ro x im a te ly caused by conduct of a person acting under color of state law. Crumpton v. G a te s , 947 F.2d 1418, 1420 (9th Cir. 1991). Here, Plaintiff has alleged violation of First A m e n d m e n t rights caused by the ICI-O Warden and IDOC Director, acting under color of

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state law. According to IDOC's response to Plaintiff's grievance (Dkt. 3 at 10), the ID O C apparently provided a process through which Plaintiff could request review ­ th ro u g h the Religious Activities Oversight Coordinator ­ if he was requesting the book f o r purposes of religious beliefs. Although Plaintiff mentioned Catholics, Jews and M o rm o n s in his concern form, he also cited non-religious bases for his request, noting th a t the book was about Hitler's formative years building the National Socialist German W o rk e r's Party. In his complaint, Plaintiff cites a desire to research his ethnic b a c k g ro u n d as a white German. Compl., Dkt. 3 at 4. T h e Court finds that, if Plaintiff is pursuing the book for non-religious purposes, it a p p e a rs he has exhausted his administrative remedies, and has stated a cognizable claim o n which he may proceed. Plaintiff is put on notice, however, that his complaint may be s u b je c t to dismissal by motion of the Defendants if he has failed to exhaust his a d m in is tra tiv e remedies, or upon other applicable defenses, if any. See Jones v. Bock, 5 4 9 U.S. 199, 215-16 (2007) ("failure to exhaust remedies is an affirmative defense, and in m a te s are not required to specially plead or demonstrate exhaustion in their c o m p la in ts " ); Title 42 U.S.C. § 1997e(a) ("[n]o action shall be brought with respect to p riso n conditions under section 1983 of this title, or any other Federal law, by a prisoner c o n f in e d in any jail, prison, or other correctional facility until such administrative re m e d ie s as are available are exhausted").1
1

The Supreme Court has noted: "[W]e stress the point . . . that we will not read futility or other exceptions into [PLRA's] statutory exhaustion requirements." Booth v. Churner, 532 U.S. at 741, n. 6. INITIAL REVIEW ORDER - 3

Also, the Supreme Court has cautioned the federal courts not to interfere with the d a y-to -d a y operations of the prisons, especially those things related to security, a task w h ic h is best left to prison officials who have particular experience in dealing with p riso n s and prisoners. See Turner v. Safley, 482 U.S. 78, 89 (1987). The standards g o v e rn in g First Amendment claims of incarcerated citizens were outlined by the United S ta te s Supreme Court in Turner v. Safley, 482 U.S. 78 (1987). There, the Court examined th e free speech issue in the context of prison officials prohibiting correspondence b e tw e e n inmates residing at different state institutions. The Court held that "when a p riso n regulation impinges on inmates' constitutional rights, the regulation is valid if it is re a s o n a b ly related to legitimate penological interests." 482 U.S. at 89. The Court id e n tif ie d four factors to consider when determining whether a regulation is valid: (1) w h e th e r there is a "rational connection between the prison regulation and the legitimate g o v e rn m e n ta l interest put forward to justify it;" (2) whether "there are alternative means o f exercising the right that remain open to prison inmates"; (3) what "impact a c c o m m o d a tio n of the asserted constitutional right will have on guards and other inmates, a n d on the allocation of prison resources generally;" and (4) whether "ready alternatives" e x is t. 482 U.S. at 89-90. This Order is not intended to be a final or a comprehensive analysis of Plaintiff's

But see Nunez v. Duncan, ­ F.3d ­ , 2010 WL 60089, at *7 (9th Cir. 2010) (plaintiff's failure to timely exhaust his administrative remedies is excused because he took reasonable and appropriate steps to exhaust his Fourth Amendment claim and was precluded from exhausting, not through his own fault, but by the warden's mistake). INITIAL REVIEW ORDER - 4

claim under Turner v. Safley, or other applicable law. Accordingly, this Order does not g u a ra n te e that Plaintiff's claim will ultimately be successful. It merely finds that Plaintiff h a s stated a colorable claim that will not be summarily dismissed at this stage. OPPORTUNITY TO SETTLE CASE If liability were found in this case, the damages likely would be minimal. Therefore, the Court finds that judicial efficiency is served by allowing Plaintiff and D e f e n d a n ts to attempt to informally settle this case during a time period of 90 days after e n try of this Order. For this reason, a courtesy copy of this Order and the Complaint shall b e provided to Defendants' counsel, Paul Panther, by the Clerk of Court. If the parties wish to set up a settlement conference call with a magistrate judge to f a c ilita te settlement discussions, they may contact Susie Boring-Headlee, the ADR C o o rd in a to r by telephone at 334-9067 or by letter at 550 West Fort Street, Boise, Idaho 8 3 7 2 4 . "Settlement" may or may not include payment of money damages. It also may or m a y not include an agreement to address Plaintiff's situation differently. A compromise a g re e m e n t is one in which neither party is completely satisfied with the result, but both h a v e given something up and both have obtained something in return. If the parties are able to settle the case in total during this time period, the $350 f ilin g fee need not be paid. However, if the parties are unable to settle, then Plaintiff will b e required to pay the $350 filing fee in full. The Court will reconsider Plaintiff's Motion to Proceed In Forma Pauperis, and if granted, Plaintiff will be permitted to pay the filing

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fee in increments by automatic deductions from his prison trust account. If the motion is d e n ie d , Plaintiff will be required to pay the full fee up front. ORDER I T IS ORDERED: 1. P la in tif f 's Motion to Proceed in Forma Pauperis (Dkt. 1) is dismissed as M OOT. 2. P la in tif f shall be permitted to proceed against Defendants Carlin and R e in k e . 3. T h e Clerk of Court shall send a courtesy copy of this Order and the C o m p la in t to Paul Panther, Attorney General for the State of Idaho, Idaho D e p a rtm e n t of Corrections, 1299 North Orchard, Ste. 110, Boise, Idaho 83706. 3. P la in tif f shall notify the Court by February 14, 2011, whether the case has b e e n settled or whether he wishes to proceed. 4. If no settlement has been reached, the Court asks that Counsel for D e f e n d a n ts provide notice to the Court if counsel will accept service or re tu rn a waiver for either or both Defendants.

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DATED: November 16, 2010

Honorable Ronald E. Bush U . S. Magistrate Judge

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