Rose v. Swanson et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 31 in full. Defendant's Motion to Dismiss 28 is GRANTED. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Defendant's Motion to Dismiss 28 is GRANTED. Signed by Judge Donald W. Molloy on 10/17/2011. Mailed to Rose. (TAG, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF MONTANA
HELENA DIVISION
ROBERT ROSE,
Plaintiff,
vs.
ROSS SWANSON, et aI.,
Defendants.
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Cause No. CV 10-48-H-DWM-RKS
ORDER
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Before this Court are the Findings and Recommendations ofUnited States
Magistrate Judge Keith Strong (dkt # 31) recommending that Defendants' Motion
to Dismiss (dkt # 28) this action be granted. Plaintiff Robert Rose timely objected
(dkt # 32) and is thus entitled to de novo review of the specified findings or
recommendations to which he objects. 28 U.S.C. § 636(b)(1).
For the reasons stated below, this Court agrees with Judge Strong's
reasoning and adopts his findings and recommendations in fulL
I.
It seems helpful to recount the procedural history of this case. The
underlying complaint was originally one allegation among several lodged by Mr.
Rose in a Complaint filed January 7, 2010 (Civil Action No. 10-CV-00002-H
DWM-RKS, dkt # 2). In response to an Order finding in part that Mr. Rose's
claims violated the rules ofjoinder, Mr. Rose filed the underlying Complaint as a
separate action on October 22, 2010. (Dkt # 2.)
The Complaint alleges that Defendants-officials at the prison in which Mr.
Rose is incarcerated-retaliated against Mr. Rose for filing grievances
complaining that the inmates' phone system was arbitrarily shut off at various
times. In retaliation, Mr. Rose states, the prison required the entire inmate phone
system to be shut off at 9:00 p.m. every night, an hour earlier than the previous
policy required. Defendants filed Answers on December 31,2010 and March 7,
201L
On April 1, 2011, Mr. Rose filed a "Notice to the Court Re: Destruction of
Documents and Property Restriction" (dkt # 18). He alleged that prison officials
confiscated some of his legal documents from this case and other pending cases
because the quantity he had retained exceeded prison policy limits. He was
ordered not to exceed the maximum allowable property limits or he would face
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disciplinary action and further confiscation. Mr. Rose concluded that this
rendered him unable, though not unwilling, to proceed in this case.
July 5, 2011, Judge Strong issued a Show Cause Order (dkt # 23), ordering
the parties to show cause why the matter should not be dismissed pursuant to Rule
41 (a)(2) or Rule 41(b). Judge Strong noted that the claim had been pending for
almost a year and half. Importantly, he found Mr. Rose's claim that the prison
property policy prevented him from litigating the case unconvincing. Mr. Rose
had not explained what documents had been destroyed or taken or how this would
inhibit his prosecution of the case.
Ten days later, Defendants filed a motion for summary judgment (dkt # 24),
which Mr. Rose did not respond to and in fact mailed back to the Defendants. On
July 29, 2011, Defendants filed the Motion to Dismiss that is at issue here.
Mr. Rose responded to the Court's Order to Show Cause (dkt # 30) on
August 5, 2011, but he did not respond to the Motion for Summary Judgment or
Motion to Dismiss. Mr. Rose stated that he had returned all ofthe documents
from opposing counsel and the court and that he did not review the show cause
order himself, apparently because he did not accept it. However he objected to
Judge Strong's suggestion that Mr. Rose wanted this case dismissed. He again
claimed that the documents that had been confiscated were necessary for this
litigation. He claimed the prison confiscated "diaries and logs that identified
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times, dates, and places plaintiff needed to impeach department witnesses."
Again, however, Mr. Rose failed to explain his inability to prosecute this case with
any level of specificity that would permit the court to evaluate his general
allegations.
Judge Strong entered Findings and Recommendations granting the
Defendants' Motion to Dismiss (dkt # 31). He found Mr. Rose's argument that he
is unable to participate in the litigation of this case because of the prison property
policy "pretextual and uncompelling." Her further found that Mr. Rose's refusal
to litigate the matter impedes expeditious resolution, impairs Defendants' "ability
to proceed to trial or threaten[s] to interfere with the rightful decision of the case,"
Malone v. United States Postal Service, 833 F.2d 128, 131 (9th Cir. 1987), and
interferes with the Court's need to manage its docket. See Pagtaluman v. Galaza,
291 F.3d 639,642 (9th Cir. 2002)(citations omitted). He also found other
alternatives were not appropriate. Finally, he found that though public policy
favors the disposition of cases on their merits, id., the other factors supporting
dismissal here outweigh this factor.
Mr. Rose's Objections reiterate his contention that he is "compelled to not
prosecute" his claims due to retaliation by Defendants. He asserts that Judge
Strong must not have considered his Notice and response to the Show Cause
Order, both of which asserted that Prison officials had taken or destroyed his legal
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documents. In addition to legal documents, he now asserts prison officials took
"cloth[es], shoes, hobby, legal research documents, legal books, etc. etc."
However, he still declines to explain what legal documents were taken and how
this has hampered his ability to prosecute this matter. He argues that explaining
what documents were taken would put in him danger of further retaliation by
Defendants. Mr. Rose proposes that a less drastic alternative than dismissal would
be to put in place a protective order and permit him to file an Amended Complaint.
II.
"A request for a court order must be made by motion." Fed. R. Civ. P. 7. A
motion must "state with particularity the grounds for seeking the order" and "state
the relief sought." Fed. R. Civ. P. 7(b). Mr. Rose has not filed a motion.
Moreover, even ifhis filings are construed as a motion for a protective order, Mr.
Rose has failed to state grounds for an order with sufficient particularity to permit
the court to consider the request. He does not explain what documents relevant to
this case were confiscated, why he refuses to receive further documents related to
this case, nor why the Prison's property policy prevents him from litigating this
case. He gives the Court no indication of what type of protective order he seeks or
against whom he seeks the order, and he does not meet the standard for the
issuance of such an order.
To succeed on a claim for preliminary injunctive relief, a party must
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generally "demonstrate 'that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.'"
Stormans. Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)(quoting Winter v.
Nat. Resources Def. Council. Inc., 555 U.S. 7, 129 S.Ct. 365, 374 (9th Cir. 2009».
However, where a prisoner seeks injunctive relief on an access-to-the-courts claim
that is separate from any claims in his complaint, the Court need not consider the
merits of the underlying suit. Diamontiney v. Borg. 918 F.2d 793, 796 (9th Cir.
1990). In such cases, any preliminary injunction "must be narrowly drawn, extend
no further than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. §
3626(a)(2).
Prisoners have a constitutional right to "meaningful access" to the courts.
Lewis v. Casey, 518 U.S. 343, 349-350 (1996). State officials may not "actively
interfer[e]" with inmates' efforts to prepare or file legal documents concerning
nonfrivolous claims. Id. (citing e.g. Johnson v. Avery, 393 U.S. 483, 484,
489-490 (1969); Ex parte Hull, 312 U.S. 546 (1941». But the right of access to
the courts is only a right to bring petitions or complaints and not a right to
discover such claims or even to litigate them effectively once filed with a court.
See Lewis v. Casey, 518 U.S. 343, 354,116 S.Ct. 2174,135 L.Ed.2d 606 (1996);
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see also Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir.1995). Moreover, a prison
may impose "reasonable restrictions and restraints" even if they impair the right of
access. Johnson, 393 U.S. at 490 (a prison may limit the time location of
opportunities to give and seek assistance from other inmates on the preparation of
habeas corpus petitions).
To establish that his right of access to the courts has been violated, a
prisoner must also allege an "actual injury," id. (citing Lewis v. Casey, 518 U.S.
343,349 (1996), that is specific, Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir.
1996). With respect to an existing case, the actual injury must be "actual prejudice
... such as the inability to meet a filing deadline or to present a claim." Id. at
348-49. A claimant must do more than simply allege imminent harm; he must
demonstrate it. Caribbean Marine Servs. Co .. Inc. v. Baldrige, 844 F.2d 668, 674
(9th Cir.l988); Lewis, 518 U.S. at 350. For a preliminary injunction, the claimant
must demonstrate by specific facts that there is a credible threat of immediate and
irreparable harm. See Fed.R.Civ.P. 65(b).
Even if the Court were to construe his Notice, response to the Show Cause
Order, and Objections to the Findings and Recommendations as a motion for a
protective order, Mr. Rose has failed to demonstrate that he is entitled to a
protective order. He has also failed to show his right of access to the courts has
been infringed. Despite being given the opportunity to demonstrate his allegations
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through specific facts, he has been unwilling to provide the information required
for this Court to act.
Mr. Rose has merely alleged that some of his legal documents and personal
items were confiscated because the quantity exceeded the prison property policy.
He does not explain what legal documents were taken nor why he cannot
prosecute this case without them. He has not explained why he cannot respond to
a motion for summary judgment-which could only require an affidavit to create
an issue of genuine fact. He has not explained why he has mailed back documents
from the Defendants nor why he declined to personally review Judge Strong's
orders. He does not allege that the prison has forbidden him to receive or respond
to court mail, and he has not explained why the prison's property policy impedes
his ability to prosecute this case.
Mr. Rose has failed to demonstrate any actual harm or that he will suffer
irreparable harm in the absence of an injunction. His general assertion that he is
unable to prosecute this and other actions is too speculative to support an
injunction. See Caribbean Marine Servs. Co .. Inc. v. Baldrige, 844 F.2d 668, 674
(9th Cir.1988) (mere "[s]peculative injury does not constitute irreparable injury
sufficient to warrant granting a preliminary injunction"); see also Fed.RCiv.P.
65(b) (movant must demonstrate by specific facts that there is a credible threat of
immediate and irreparable harm).
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It is not even clear what type ofprotection Mr. Rose seeks. His bare
allegations do not show that his right of access to the courts has been impaired nor
that the prison policy is unreasonable or has been unreasonably applied. He does
not show that the balance of equities tips in his favor or that an injunction is in the
public interest. Mr. Rose has not met the standard for a protective order.
III.
The Court can draw no conclusion but that Mr. Rose is unwilling to
prosecute this case. Under Federal Rule of Civil Procedure 41 (b), a court may
dismiss a complaint for failure to prosecute or to comply with the Rules or a court
order. Mr. Rose has refused to litigate this case in any way. He refuses to provide
the specific information required to satisfy the standard for a.preliminary
injunction. While pro se filings are to be interpreted liberally, Haines v. Kerner,
92 S.Ct. 594 (1972), the Court may not supply essential elements that are not
pleaded, Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.1982). "Vague and
conclusory allegations of official participation in civil rights violations are not
sufficient to withstand a motion to dismiss." Id. Moreover, Mr. Rose has not only
failed to respond to Defendants' July 15,2011 Motion for Summary Judgment, he
also mailed it back. He similarly refused to respond to Defendants' July 28, 2011
Motion to Dismiss for Lack of Prosecution.
As discussed by Judge Strong, Mr. Rose's refusal to prosecute this matter
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contravenes the public's interest in expeditious resolution oflitigation and the
court's need to manage its document. Pagtalunan v. Galaza, 291 F.3d 639,642
(9th Cir. 2002). His recalcitrance prejudices the Defendants, impairing their
ability to defend themselves or pursue a rightful decision in this case. Malone v.
United States Postal Service, 833 F.2d 128,131 (9th Cir. 1987). Finally, Mr. Rose
has rejected multiple opportunities to provide the information necessary for the
Court to grant a protective order, which would certainly be a less drastic
alternative to dismissal.
Accordingly, this Court adopts Judge Strong's Findings and
Recommendations in this matter. This case is dismissed pursuant to Rule 41 (b) of
the Federal Rules of Civil Procedure, a strike is issued against Mr. Rose, and an
appeal of this issue would not be taken in good faith.
IT IS HEREBY ORDERED as follows:
I. Judge Strong's Findings and Recommendation (dkt # 31) are
ADOPTED.
2. Defendant's Motion to Dismiss (dkt # 28) is GRANTED. This matter is
dismissed with prejudice pursuant to Rule 41(b) of the Federal Rules ofCiviI
Procedure. The Clerk of Court is directed to terminate all pending motions, close
this matter, and enter judgment in favor ofDefendants pursuant to Rule 58 of the
Federal Rules of Civil Procedure.
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3. The Clerk of Court is directed to have the docket reflect that this
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g).
4. The Clerk of Court is directed to have the docket reflect that the Court
certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure
that any appeal ofthis decision would not be taken in good faith. Mr. Rose's
failure to prosecute is so clear no reasonable person could suppose an appeal
would have merit.
Dated this otaay of October, 2011.
United States Dis
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