Bailey v. Kirkegard et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 24 in full. Claims dismissed as described. Defendants Mihelich, Redfern, Phipps, Pearson, Molnar, Moodry, Hunt, Danaher, Fode, Riddle, Hiner, Rantz, Kohut, Doe Defendants/MSP Medical Review Committee, and Decker DISMISSED WITH PREJUDICE. Signed by Judge Brian Morris on 7/27/2017. Mailed to Bailey. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
DOC DIRECTOR MIKE BATISTA,
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
Plaintiff D’Wayne Bailey has filed an Amended Complaint (Doc. 9), Second
Amended Complaint (Doc. 13), Third Amended Complaint (Doc. 16), Fourth
Amended Complaint (Doc. 20), and corresponding supplements to these
complaints (Docs. 17, 19, and 21). Bailey alleges violations of the First, Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution. United
States Magistrate Judge John Johnston issued Findings and Recommendations in
this matter. (Doc. 24.) Judge Johnston recommended that the Court dismiss all of
Bailey’s claims for failure to state a claim, with the exception of one claim alleging
an equal protection violation. Id. at 1.
Bailey filed objections. (Doc. 26.) The Court reviews de novo findings and
recommendations to which objections are made. 28 U.S.C. § 636(b)(1)(C). The
Court has reviewed the Findings and Recommendations de novo and concurs with
A Montana state court sentenced to Bailey to 45 years in custody in June
2005. Bailey spent some of his term within the Montana Department of
Corrections, was transferred via an interstate compact agreement to California, and
then returned to Montana’s custody. (Doc. 2-1 at 4.) The Court construed Bailey’s
first filing in this case as a 42 U.S.C. § 1983 complaint. His filing included three
separate habeas petitions. The Court informed Bailey it would not consider
petitions and documents filed in other courts.
Judge Johnston has organized Bailey’s claims into six claim headings across
the four amended complaints. For his first claim, Bailey alleged that Montana State
Prison (MSP) has denied him adequate toiletries and legal materials, and access to
the courts, in violation of his Eighth and Fourteenth Amendment rights. Second,
Bailey alleged that MSP and Crossroad Correctional Associates (CCA) officials
have demonstrated deliberate indifference to his medical issues, in violation of the
Eighth Amendment. Third, Bailey asserted that MSP has violated his right to due
process through racially motivated housing placement. Fourth he claimed that
Interstate Compact Coordinator, Linda Moodry, violated his rights when she
destroyed and/or failed to have his property shipped back to Montana from
California. Bailey’s fifth claim alleged that MSP has denied him a special
vegetarian diet in violation of his First and Fourteenth Amendment rights, as well
as a violation of the Religious Land Use and Institutionalized Persons Act
(RLUIPA). His sixth claim asserted that MSP medical personnel are denying him
care in violation of his Eighth Amendment rights.
The Court must review Bailey’s claims and dismiss any claim that is
“frivolous,” “fails to state a claim upon which relief may be granted,” or “seeks
monetary relief from a defendant who is immune.” 28 U.S.C. § 1915; 28 U.S.C. §
1915(A). To state a claim under §1983, a plaintiff must allege (1) the violation of
a federal constitutional or statutory right; and (2) that the violation was committed
by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48
(1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). A plaintiff is
additionally required to allege a specific injury suffered and show a causal
relationship between the defendant’s conduct and the injury suffered. Rizzo v.
Goode, 423 U.S. 362, 371-72 (1976); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.
Liability does not attach to an individual defendant on a civil rights claim
unless the facts establish the defendant’s personal involvement in the constitutional
deprivation or a causal connection between the defendant’s wrongful conduct and
the alleged constitutional deprivation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989). A plaintiff may not sue any official on the theory that the official is liable
for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). Bailey must identify the particular person or persons who
violated his rights. He must also plead facts showing how that particular person
was involved in the alleged violation.
Before dismissing claims in a pro se complaint, the litigant must be provided
with notice of the deficiencies in his complaint in order to ensure that the litigant
uses the opportunity to amend. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992). Bailey was provided with such notice of the deficiencies and filed several
amendments to his original complaint. Judge Johnston recommends the Court
dismiss Bailey’s first, second, fourth, fifth, and sixth claims. He further
recommends that the Court dismiss part of Bailey’s third claim.
A. Claim One: Denial of Toiletries and Legal Materials, and
Discrimination in Employment
Bailey’s first claim includes allegations of denial of sufficient toiletries and
legal materials, as well as racial discrimination in prison employment that prevents
him from obtaining extra toiletries and legal materials. Bailey alleges his Eighth
Amendment right to humane conditions of confinement has been violated because
he does not receive enough razors, soap, toothpaste, or shaving supplies.
The Eighth Amendment protects prisoners from inhumane methods of
punishment and from inhumane conditions of confinement. Morgan v. Morgensen,
465 F.3d 1041, 1045 (9th Cir. 2006). To show a violation of the Eighth
Amendment, plaintiff must allege facts sufficient to support a claim that a prison
official knew of and disregarded a substantial risk of serious harm to the plaintiff.
Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124,
1128 (9th Cir. 1998). Bailey admits that he is provided toiletries, even if he
disputes that the quantity meets his needs. This claim fails.
Bailey also seems to allege that MSP and CCA have violated his right to
access courts under the Fourteenth Amendment. He specifically takes issue with
the amount of legal supplies provided. Prisoners have a constitutional right of
access to the courts. Bounds v. Smith, 430 U.S. 817, 828 (1977). Prisoners also
have a right “to litigate claims challenging their sentences or the conditions of their
confinement to conclusion without active interference by prison officials.” Silva v.
DiVittorio, 658 F.3d 1090, 1103 (9th Cir. 2011), overruled on other grounds by
Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). The plaintiff must
allege that the deprivation actually injured his litigation efforts, in that the
defendant hindered his efforts to bring, or caused him to lose, an actionable claim
challenging the conditions of his confinement. Lewis v. Casey, 518 U.S. 343, 351
Bailey fails to show actual injury. He admits that he is provided with five
stamped envelopes, paper, and 30 copies. Bailey has demonstrated that he is
capable of filing documents with this Court. He has filed exhibits with this Court
that indicate his ability to litigate his claims through the prison grievance system
and the state courts. This claim fails.
Bailey further seems to allege violations of his Fourteenth Amendment
rights by racial discrimination in prison employment. Bailey asserts that he has
been unable to obtain a job that would allow him to pay for toiletries and legal
supplies outside those provided. Racial discrimination in prisons is
unconstitutional under the Fourteenth Amendment, except for “the necessities of
prison security and discipline.” Cruz v. Beto, 405 U.S. 319, 321 (1972) (per
While the due process clause of the Fourteenth Amendment does not create
a property or liberty interest in prison employment, racial discrimination in the
assignment of jobs violates equal protection. Walker v. Gomez, 370 F.3d 969, 973
(9th Cir. 2004). Bailey fails to provide specific examples of defendants
discriminating against him, specific situations where he was treated unequally, or
where race was a factor used to deny him employment. Bailey has failed to make a
claim to establish that prison officials have discriminated against him in the
B. Claim Two: Denial of Medical Care for Chronic Conditions
Bailey alleges that he has been denied sufficient care for his thickened gall
bladder, his ANA/rheumatoid arthritis, and his Raynaud’s Syndrome. To prevail on
an Eighth Amendment claim based upon the denial of medical care, a plaintiff
must establish that he had a serious medical need and that the defendant’s response
to that need was deliberately indifferent. Estelle v. Gamble, 429 U.S. 97, 106
(1976); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). A serious medical
need exists if the failure to treat the condition could result in further significant
injury or the unnecessary and wanton infliction of pain. Jett, 439 F.3d at 1096.
Deliberate indifference may be shown by the denial, delay or intentional
interference with medical treatment or by the way in which medical care is
provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). Mere
differences of opinion concerning the appropriate treatment cannot be the basis of
an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
As detailed in Judge Johnston’s Findings and Recommendations, Bailey has
established that physicians and members of the medical staff have seen him and
have developed a treatment plan and a chronic care plan. (Doc. 24 at 15.) Bailey
has failed to demonstrate that Defendants acted with deliberate indifference to his
C. Claim Three: Housing Placement and Discrimination
Bailey alleges that MSP has prevented him from completing programs
required to become eligible for parole, violating his Eighth Amendment rights.
Bailey was previously on single cell status before his transfer to California. He
contends that MSP officials removed him from single cell status. (Doc. 13 at 12.)
Bailey asserts that he ends up in administrative segregation because he continues to
be housed with inmates with whom he does not get along. Id. at 13. Bailey requests
that he be placed back on single cell status in D-Unit or A-Unit where his court
ordered programs are available.
A prison official violates the Eighth Amendment when two requirements are
met: (1) the deprivation alleged must be objectively, sufficiently serious, and (2)
the prison official possesses a sufficiently culpable state of mind. Farmer, 511 U.S.
at 834 (citing Wilson v. Seiter, 501 U.S. 294, 297-98 (1991)). Bailey has failed to
set forth sufficient factual allegations to allege an objectively serious deprivation or
that any named defendant possessed a sufficiently culpable state of mind. Bailey
does not state an Eighth Amendment claim with regard to placement in a single
cell or in a particular place in the prison. This claim fails.
Bailey also advances due process and equal protection violations, claiming
as a result of the discriminatory housing he has been denied the ability to complete
court ordered programs. (Doc. 2-1 at 6-7); (Doc. 13 at 12-13.) Bailey has made this
same claim, with additional detail in a companion habeas case. Bailey v. Fender,
et. al, CV-16-84-H-DLC-JTJ, Pet. (filed Sept. 1, 2016).
Bailey alleges that although the Board of Pardons and Parole has refused to
see him because he has not completed his court-ordered programs, it has seen
similarly-situated white inmates. Id. at 8. In support of his claim, Bailey explains
that another inmate, William Hopkins, was given preferential placement in his
treatment program by treatment provider Blair Hopkins. Bailey v. Fender, et. al,
CV-16-84-H-DLC-JTJ, Ex. to Pet. at 5 (filed Sept. 1, 2016). Bailey also alleges
that white inmates are placed in groups before him and are seen by the Parole
Board before they completed their court-ordered programming. Id. at 7. Bailey
seeks to be placed on single-cell status and in the requisite programs, to appear
before the Board of Pardons and Parole, and ultimately to be transferred back to
California. Bailey v. Fender, et. al, CV-16-84-H-DLC-JTJ, Pet. At 13 (filed Sept.
Bailey’s claim that he has been denied sexual offender treatment while in
prison, does not implicate a protected interest. Sexual offenders serving criminal
sentences do not have a constitutional right to rehabilitative treatment. Balla v.
Idaho State Bd. of Corr., 869 F.2d 461, 470 (9th Cir. 1989). Bailey’s additional
due process claim, alleging denial of parole eligibility due to his inability to
complete sex offender treatment, does not implicate a protected interest. Prisoners
have “no constitutional or inherent right” to parole. Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Within the statutory scheme of
Montana under which Bailey was sentenced no liberty interest existed under the
due process clause. Worden v. Mont. Bd. of Pardons & Parole, 962 P.2d 1157,
1165 (Mont. 1998). These claims are dismissed.
Bailey also advances an equal protection claim alleging unequal treatment of
sexual offenders at the prison, specifically that white inmates have been given
preferential treatment in their program placement and appearance before the parole
board. Because the preferential treatment as alleged in the claim is based upon a
suspect class, the Court requires an answer from the Defendants. See City of
Cleburn, Tex. v. Cleburn Living Ctr., 473 U.S. 432, 440 (1985).
D. Claim Four: Denial of Property
As Judge Johnston details, Bailey cannot move forward with his denial of
property claim because he entered into a settlement agreement and received
compensation for his lost property. (Doc. 24 at 20-22.) Because he had adequate
post-deprivation remedies available, due process is satisfied and Bailey has failed
to state a cognizable claim. This claim is dismissed.
E. Claim Five: Denial of Vegetarian Meals
Bailey has claimed that MSP violated his equal protection rights by not
providing him vegetarian meals. “To state a claim under 42 U.S.C. § 1983 for a
violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff
must show that the defendant acted with an intent or purpose to discriminate
against the plaintiff based upon membership in a protected class.” Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Judge Johnston determined that
Bailey had failed to establish that he is vegetarian and was thus treated the same
manner as any other inmate under MSP policy. (Doc. 24 at 23-24). This claim
Bailey also asserts that MSP has violated his First Amendment right to free
exercise of religion. “A prisoner's religious concern implicates the free exercise
clause if it is (1) ‘sincerely held’ and (2) ‘rooted in religious belief,’ rather than in
secular philosophical concerns.” Penwell v. Holtgeerts, 386 Fed.Appx. 665, 667
(9th Cir. 2010) quoting Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see also
Shakur v. Schiriro, 514 F.3d 878, 885 (9th Cir. 2008). Bailey does not identify his
religion, nor does he show a sincerely held religious belief that requires him to eat
only vegetarian meals. Bailey’s First Amendment claim fails. Bailey’s RLUIPA
claim also fails because he has not explained what his religion is and how the
application of the prison’s vegetarian policy substantially burdens his exercise. See
42 U.S.C. § 2000cc(a)(1).
F. Claim Six: Denial of Medical Care/Accommodations for Knee
Bailey asserts that MSP medical personnel are denying him care and
permitting unqualified nurses and nurse practitioners to make medical
determinations in contravention of other specialists’ recommendations, particularly
in relation to his knee problems and knee braces. The Court concurs with Judge
Johnston’s determination that while Bailey has established that a difference of
opinion exists between the medical staff at CCA and MSP, as addressed in Claim
Two, mere difference of opinion concerning the appropriate treatment cannot be
the basis of an Eighth Amendment violation. Jackson, 90 F.3d at 332 (9th Cir.
1996). (See Doc. 24 at 25-28.)
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 24) is ADOPTED IN FULL. Bailey’s claims 1, 2, 4,
5, and 6 are DISMISSED WITH PREJUDICE for failure to state a claim.
Defendants Mihelich, Redfern, Phipps, Pearson, Molnar, Moodry, Hunt, Danaher,
Fode, Riddle, Hiner, Rantz, Kohut, Doe Defendants/MSP Medical Review
Committee, and Decker are DISMISSED WITH PREJUDICE.
Claim 3 is DISMISSED WITH PREJUDICE, with the exception of the
portion of that claim advancing an equal protection violation. Defendants Batista,
Kirkegard, Beason, Hopkins, and Adden must file a response to Bailey’s remaining
portion of claim 3 alleging an equal protection violation, specifically that
defendants give preferential treatment to white inmates relative to their placement
in court ordered programs and appearance before the Board of Pardons and Parole.
DATED this 27th day of July, 2017.
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