Gray v. Johnson et al

Filing 15

INITIAL REVIEW ORDER finding as moot 1 APPLICATION for Leave to Proceed in forma pauperis filed by William Gray, (Amended Complaint or alternatively, a notice of voluntary dismissal due by 6/15/2011.),. 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 dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WILLIAM GRAY
Case No. 1:11-CV-002-BLW
Plaintiff,
INITIAL REVIEW ORDER
v.
MICHAEL JOHNSON, et al.
Defendants.

On January 3, 2011, Plaintiff, an Idaho prisoner, filed his 112-page Complaint.
Dkt. 2. The Clerk conditionally filed the Complaint pending the Court’s initial review.
Plaintiff also seeks permission to proceed in forma pauperis. Since the Complaint was
filed, Plaintiff filed an additional 224 pages of materials he would like the Court to review
when analyzing his claims. Dkts. 7, 8.
The Court is required to screen prisoner and in forma pauperis complaints seeking
relief against a governmental entity or an officer or employee of a governmental entity to
determine whether summary dismissal is appropriate. 28 U.S.C. §§ 1915(e) and 1915A.
The Court must dismiss a complaint or any portion thereof that states a frivolous or
malicious claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); 28 U.S.C. § 1915A. Having reviewed the record, and otherwise being
fully informed, the Court enters the following Order.
INITIAL REVIEW ORDER- 1

REVIEW OF THE COMPLAINT
1.

Plaintiff's Allegations
In the original Complaint, Plaintiff identified 39 Defendants to this action: Michael

Johnson, Kim Spaulding, Hammer, Ame Angelleti, Tyler Nicodemus, Vicki Hansen,
Shannon Nickols, A. Clausen, Dwayne Arrol Shed, Ambrose Richardson, Perle, Harris,
Phieffer, Carver, Laura Ashford, Travis Watts, Lenoard King, Flemming Greene,
Melodee Armfield, Danthforth, Phillip Valdez, Archibald, Daniel Prado, Charlie Leeds,
Teresa Carlin, Amy Anderson, Shirley Roane, Kristi Lynch, Siegler, Oleson, Jack
Fernandez, Carrick, Kathy Davidson, Paul Delapain, Darrell Stammer, David King,
Mechlin, Develbiss, and Wright. Some of the Defendants work for the Idaho Department
of Corrections (“IDOC”), others for the Corrections Corporation of America (“CCA”).
Plaintiff’s allegations begin when he was housed at the Idaho Maximum Security
Institution (“IMSI”). The allegations also include events that occurred after Plaintiff was
transferred to the Idaho Correctional Center (“ICC”) in November 2009 and events that
occurred after he was transferred to the Idaho Correctional Institute in Orofino (“ICI-O”)
in April 2010.
The gravamen of Plaintiff’s claim is that he has been treated differently than other
inmates in retaliation for his litigation activity. However, the alleged retaliatory conduct
does not, on its face, appear to stem from a retaliatory motive. In addition, after reading
Plaintiff’s allegations thoroughly, the Court does not see any conduct that rises to a
constitutional level of concern. Accordingly, the Complaint must be dismissed.

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The following allegations are a summary of a large portion of Plaintiff’s
allegations. Plaintiff lists the allegations in a narrative form without tying the allegations
to a specific claim against a specific Defendant. Therefore, even if the allegations were
consistent with a constitutional claim, the Court cannot determine what claim and against
whom.
For example, in February 2009, immediately after Plaintiff mailed a complaint
against IDOC in a state 1983 action, Plaintiff alleges he received a disciplinary offense
report (“DOR”) for having cleaning rags in his cell. The DOR was later dismissed.
In August 2009, prison officials told Plaintiff his cell smelled bad and needed to be
cleaned. Plaintiff was sent to the showers, his personal items were placed in the day
room, and another inmate cleaned his cell. Afterwards, Plaintiff discovered his radio had
been stolen. Plaintiff believes that prison officials told other inmates about the cell
cleaning, so Plaintiff would be targeted and subject to attacks.
In September 2009, a prison official took a bird feather from Plaintiff’s cell. The
bird feather was very special to Plaintiff, because it symbolized his mother, who loved
birds. Plaintiff admits that he did not have permission to keep the bird feather in his cell
but also claims that it was taken away as an act of retaliation for his litigation activity.
In early October 2009, Plaintiff was told he was going to be moved. He states that
he gathered his things in preparation for the move but expressed concern about the move.
Plaintiff was issued a DOR for refusing to move, and the DOR was dismissed two weeks
later.

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In late October 2009, Plaintiff participated in an administrative segregation review
process to determine whether Plaintiff could live safely on a tier with members of the
prison gang, the Aryan Knights. Plaintiff states he wanted to be placed in a tier that
provided the programming he needs to be eligible for parole.
On November 4, 2010, Plaintiff was informed that he would be transferred to a
newly-opened, closed custody ward at ICC. Plaintiff did not want to move, because he
felt that ICC had a reputation for being violent. Nevertheless, he was moved on
November 12, 2010 and had to take a bus with at least ten members of the Aryan Knights.
Plaintiff does not explain how the events at ICC were connected to his litigation
activity at IDOC. Regardless, while in ICC custody, Plaintiff had several roommates in
quick succession. In February 2010, Plaintiff received a DOR for aggravated battery that
was dismissed in March and rewritten in April. As a result of the DOR, Plaintiff moved
to the segregation unit of ICC. When Plaintiff complained that his life was threatened in
the segregation unit, he was placed in the special management unit.
In April 2010, Plaintiff was transferred to ICI-O. Again, Plaintiff does not explain
how the initial events at ICC were connected at his litigation activity.
Upon his arrival at ICI-O, Plaintiff was housed in the A-3 unit, the most restrictive
unit, for administrative processing. Within a month, Plaintiff was moved to A-1.
Plaintiff enjoyed living in A-1, because it was relatively quiet and programming was
available. Plaintiff eventually earned his G.E.D.

INITIAL REVIEW ORDER- 4

Unfortunately, Plaintiff missed his G.E.D. graduation ceremony, because he was in
administrative segregation for a DOR issued in July 2010. While in administrative
segregation, Plaintiff filed a habeas corpus action in state court that was dismissed on
summary judgment. Plaintiff thinks he was left in A-3 and forced to miss his graduation
in September 2010, as an act of retaliation for his litigation activity.
In August 2010, Plaintiff was accused of stealing a radio from his cell mate. His
cell was searched at least three times in two days. In addition, Plaintiff was forced to
miss recreation one day, because he had been transported much earlier in the day.
In October 2010, Plaintiff sough medical attention for hemorrhoids, and the nature
of his medical concerns was announced over the radio. Then, in November 2010,
Plaintiff was not supervised at the dentists’s office and “inadvertently” took an
unauthorized property item.
The above-described allegations are not a comprehensive list but a demonstrative
example of the allegations Plaintiff describes in his Complaint and additional supporting
documentation. None of these allegations is sufficient to state a constitutional claim.
Moreover, there is no indication how the 39 Defendants identified in the Complaint are
responsible for the conduct alleged.
2.

Standard of Law
To state a claim under § 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.

INITIAL REVIEW ORDER- 5

1991). The plaintiff has a duty to set forth facts showing that each defendant participated
personally in a constitutional violation or knew of a violation and failed to correct it; there
is no respondeat superior theory of liability under § 1983. Taylor v. List, 880 F.2d 1040,
1045 (9th Cir. 1989). A complaint should also be dismissed under Rule 8 of the Federal
Rules of Civil Procedure if the factual allegations are not “plausible,” but merely
“conceivable.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009).
If Plaintiff wishes to proceed with his Complaint, he will have to file an amended
pleading. The Court urges Plaintiff first to consider what he claims he wants to make
against what Defendants and on what factual basis.
a.

Format of Amended Complaint

To aid the Court in reviewing Plaintiff's claims and to aid Defendants in
responding to any claims upon which Plaintiffs may be authorized to proceed, Plaintiff is
directed to file a single, amended complaint containing all of his allegations and claims.
The Court will then review the amended complaint and make a determination as to
whether Plaintiff may be allowed to proceed on each of his claims.
Plaintiff shall organize his amended complaint in a way that explains what claims
are directed toward what Defendants and upon what factual basis. For each claim,
Plaintiff shall state the following: (1) the name and job title of the person who personally
participated in causing the alleged deprivation of Plaintiff’s federal rights; (2) facts
showing the person is a state actor; (3) the dates on which the conduct of the Defendant
allegedly took place; (4) the specific conduct or action Plaintiff alleges is unconstitutional

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or unlawful under a federal statute (in other words, how each Defendant personally
participated in the alleged violation); (5) the particular federal law provision under which
Plaintiff makes the claim; (6) the injury or damages suffered; and (7) the particular type
of relief he is seeking from each Defendant.
In addition, when drafting an amended complaint, Plaintiff should be aware of the
following limitations on his ability to make a constitutional claim.
b.

Retaliation Claims

To state a retaliation claim, Plaintiff must demonstrate: “(1) An assertion that a
state actor took some adverse action against an inmate (2) because of (3) that prisoner's
protected conduct, and that such action (4) chilled the inmate’s exercise of his First
Amendment rights, and (5) the action did not reasonably advance a legitimate correctional
goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). A “chilling effect on
First Amendment rights” is enough to state an injury. Gomez v. Vernon, 255 F.3d 1118,
1127 (9th Cir. 2001).
Not every retaliatory action taken by an official can be considered an adverse
action that chills the exercise of protected speech. The proper inquiry in determining
whether a plaintiff has stated a viable retaliation claim “asks ‘whether an official’s acts
would chill or silence a person of ordinary firmness from future First Amendment
activities.’” Mendocino Envt’l Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.
1999) (quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996)). If it would
not, then “the retaliatory act is simply de minimis and therefore outside the ambit of

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constitutional protection.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (quotation
omitted). See also Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006) (de minimis
retaliatory actions are those that would not deter a person of ordinary firmness from
further exercise of his or her rights); A.C.L.U. of Maryland, Inc. v. Wicomico County, 999
F.2d 780786 n.6 (4th Cir. 1993) (“[T]hese § 1983 plaintiffs suffered no more than a de
minimis inconvenience and . . . , on the facts of this case, such inconvenience does not
constitute cognizable retaliation under the First Amendment.”). This distinction between
de minimis and actionable retaliation “achieves the proper balance between the need to
recognize valid retaliation claims and the danger of federal courts embroiling themselves
in every disciplinary act that occurs in state penal institutions.” Morris, 449 F.3d at 686
(quotation and alteration omitted).
Similarly, although a threat of harm can generally be an adverse action sufficient
to state a retaliation claim, Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009), a mere
threat of disciplinary sanctions cannot, so long as the person subject to the threat of
sanctions is already exposed to such sanctions based on a rule violation, Corales v.
Bennett, 567 F.3d 554, 565 (9th Cir. 2009) (“Plaintiffs do not have a retaliation claim
based on threats of discipline for First Amendment activity if that threat is itself based
upon lawful consequences and is not actually administered.”). Therefore, because a DOR
is a lawful consequence of violating a prison rule, charging Plaintiff with a DOR when
there is some evidence in support of the crime alleged, cannot support a retaliation claim.

INITIAL REVIEW ORDER- 8

c.

Eighth Amendment: Prison Conditions

Although Plaintiff characterizes his allegations as supportive of a retaliation claim,
he also appears to be making more general commentary regarding prison conditions at
IDOC, ICC, and ICI-O. To the extent Plaintiff intends to make an Eighth Amendment
claim, he should be aware of the following rules.
To make an Eighth Amendment claim, Plaintiff must show that Defendants
acted with deliberate indifference to his safety. To demonstrate that a defendant acted
with deliberate indifference, a plaintiff must show “both (a) a purposeful act or failure to
respond to a prisoner’s pain or possible medical need and (b) harm caused by the
indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quotation omitted).
Harassment, abuse, and threats that are verbal only are not sufficient to state a
constitutional deprivation under Section 1983. Oltarzewski v. Ruggiero, 830 F.2d 136
(9th Cir. 1987).
In addition, the courts provide prisons with a great deal of deference when
dealing with issues of prison security. The constitutional rights of convicted prisoners are
subject to limitations arising “both from the fact of incarceration and from valid
penological objectives -- including deterrence of crime, rehabilitation of prisoners, and
institutional security.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). In Turner
v. Safley, 482 U.S. 78 (1987), the United States Supreme Court held that “when a prison
regulation impinges on inmates’ constitutional rights, the regulation is valid if it is

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reasonably related to legitimate penological interests.” 482 U.S. at 89. The Court
identified four factors to consider when determining whether a regulation is valid:
(1) whether there is a “rational connection between the prison regulation and the
legitimate governmental interest put forward to justify it”; (2) whether “there are
alternative means of exercising the right that remain open to prison inmates”; (3) what
“impact accommodation of the asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally”; and (4) whether “ready
alternatives” exist. 482 U.S. at 89- 90.
CONCLUSION
Despite the many pages of material offered in support of Plaintiff’s Complaint,
Plaintiff has failed to demonstrate a constitutional violation. If Plaintiff wishes to proceed
with this claim, he must submit an amended complaint within 30 days of this Order.
ORDER
Consistent with the foregoing, IT IS HEREBY ORDERED:
1.

Within 30 days of the date of this Order, Plaintiff may file an amended
complaint that conforms with the instructions above. Together with his
amended complaint, if any, Plaintiff shall file a “Motion for Review of
Amended Complaint.” Alternatively, Plaintiff may file a notice of voluntary
dismissal.

2.

Plaintiff’s Application to Proceed In Forma Pauperis (Dkt. 1) is DEEMED
MOOT, but the Court will reconsider Plaintiff’s Application with any

INITIAL REVIEW ORDER- 10

amended complaint that he files. Plaintiff is advised that if he is found to be
indigent and his case proceeds, he will be required to pay the full $350
filing fee, but it will be deducted automatically from his prison trust account
in installments rather than at the time of filing. 28 U.S.C. § 1915(b).

DATED: May 15, 2011

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

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