Bearchild v. Cobban et al

Filing 20

ORDER ADOPTING IN PART 9 FINDINGS AND RECOMMENDATIONS. Bearchild's retaliation claim, to the extent it alleges denial of meals and disciplinary threats as retaliation for utilizing the prison grievance process, shall proceed. All other all egations regarding the verbal harassment, access to the courts, and delay of legal mail, as described in his Complaint 2 , are DISMISSED. Defendant Shashlinge is DISMISSED from this action. Signed by Judge Dana L. Christensen on 1/26/2015. Mailed to Bearchild. (TAG, )

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

JAN 262015
Cle'!'. y.S. District Court
Dlstnct Of Montana
Missoula

CV 14-12-H-DLC-JTJ

DEWAYNE BEARCHILD,
Plaintiff,

ORDER
vs.
KRISTY COBBAN, SGT. PASHA,
SAM JOVANOVICH, TOM BLAZ,
DAN JOHNSON and C/O
SHASHLINGE,
Defendants.
United States Magistrate Judge Keith Strong l entered his order, findings,
and recommendations in this case on November 19,2014, recommending that
several of Plaintiff Bearchild's claims against Defendants, Montana State Prison
officials, be dismissed for failing to state a claim upon which relief may be
granted. Judge Strong also ordered that Bearchild's amended complaint be filed
and that his claims of excessive use of force and retaliation for reporting the
incident be served upon the applicable Defendants. Bearchild timely objected to
the findings and recommendations on these issues, and so is entitled to de novo

1. This case was reassigned to United States Magistrate Judge John T. Johnston on January 6,
2015. (Doc. 13.)
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review of the record. 28 U.S.C. § 636(b)(1). The portions of the findings and
recommendation not specifically objected to will be reviewed for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313

(9th Cir. 1981). "Where a [party's] objections constitute perfunctory responses
argued in an attempt to engage the district court in a rehashing of the same
arguments set forth in the original [pleading], the applicable portions of the
findings and recommendations will be reviewed for clear error." Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21,2014) (citations omitted). The

Court adopts Judge Strong's findings and recommendations in part.
Judge Strong found that Bearchild failed to state a claim as to his
allegations regarding: (1) the failure of prison officials to intervene in the assault
at the heart of this action, (2) verbal harassment by prison officials, (3) the denial
of two meals, (4) the prison grievance process and access to the courts, and (5)
delay of his legal mail. As to the first allegation, Judge Strong found that
Bearchild failed to plead that Defendants Johnson and Shashlinge had the
opportunity to intervene in the alleged assault by Defendant Pasha, and so failed to
state a claim. As to the second allegation, Judge Strong found the fact that
Defendants Johnson and Shashlinge may have laughed in response to Defendant
Pasha's conduct does not in itself rise to the level of a constitutional violation.
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Likewise with the alleged denial of two meals in Bearchild's third allegation
Judge Strong found that such action on the part of prison officials simply is not
enough to support a claim of adverse action against a prisoner. As to the fourth
allegation, Judge Strong found that Bearchild neither is constitutionally entitled to
a particular grievance process, nor sufficiently pled that the lack of such process
constituted an injurious denial of access to the courts. Finally, Judge Strong found
that Bearchild's fifth allegation - that Defendants have somehow interfered with
his mailings to the courts - is simply too vague and conclusory to survive
dismissal.
Bearchild focuses on his retaliation and mail interference claims in his
objections. He indicates that "his issue pertaining to the grievance process in his
complaint pertains to punishment for his use of the grievance system at Montana
State Prison." (Doc. 11 at 2-3.) Bearchild claims that Defendants Blaz, Cobban,
and Jovanovich wrongfully threatened and/or carried out retaliatory actions
against him, in the form of denial of meals and disciplinary write-ups, for filing a
grievance which violated Defendants' so-called "disrespect regulations."
Bearchild filed several affidavits wherein fellow inmates attest to witnessing these
actions or overhearing these threats. (See Doc. 11-1.)
"Within the prison context, a viable claim of First Amendment retaliation
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entails five basic elements: (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, 567-568 (9th Cir. 2004). Actions or threats
related to confinement, transfer, loss of privileges, or shaming before other prison
inmates generally meet this test. Id. at 568.
Bearchild's objections and accompanying affidavits, taken as true, contour a
retaliation claim relative to his use ofthe grievance process at Montana State
Prison. Bearchild asserts that Defendants denied him meals and threatened him
because he utilized the prison grievance system, that those actions affected his
filing of grievances, and, reading his objections and the affidavits liberally, that
the actions were punitive in nature and not related to any reasonable penological
purpose. Judge Strong made his recommendation that the claim be dismissed
without the benefit of the information contained in the objections and affidavits,
and so the recommendation must be rejected. The Court finds that Bearchild's
grievance process-based retaliation claim should proceed against Defendants.
As to his mail interference claim, Bearchild contends in his objections, as do
the affiants attesting on his behalf, that prison officials delayed his receipt of
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certain pieces of his legal mail. (Doc. 11 at 8; Doc. 11-1 at 4-5). Bearchild
submitted an exhibit depicting the envelopes, from this Court, that prison officials
allegedly withheld. (Doc. 11-2.).
"[A] temporary delay in the delivery of [an inmate's mail], resulting from
[a] prison official's security inspection, does not violate ... First Amendment
rights ... [and] is reasonably related to the prison's interest in inspecting mail for
contraband." Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (citations
omitted). Furthermore, "[m]ail from the courts, as contrasted to mail from a
prisoner's lawyer, is not legal mail," and therefore is not protected from screening
by prison officials. Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996).
Bearchild's allegations do not rise to the level of a First Amendment
violation, given that he alleges only a delay in receipt of mail that is not protected
as legal mail in the first instance. The Court thus adopts Judge Strong's
recommendation that Bearchild' s mail interference claim be dismissed.
There being no clear error in Judge Strong's remaining findings and
recommendations,
IT IS ORDERED that Judge Strong's findings and recommendations
(Doc. 9) are ADOPTED IN PART. Bearchild's retaliation claim, to the extent it
alleges denial of meals and disciplinary threats as retaliation for utilizing the
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prison grievance process, shall proceed. Should Defendants find it necessary to
amend their pleading in light of this claim, Defendants are granted fourteen (14)
days from the date of this order to do so.
IT IS FURTHER ORDERED that all other allegations regarding the verbal
harassment, access to the courts, and delay of legal mail, as described in his
Complaint (Doc. 2), are DISMISSED.
IT IS FURTHER ORDERED that Defendant Shashlinge is DISMISSED
from this action.
DATED this

2"

~

day of January, 2

Dana L. Christensen, Chief Judge
United States District Court

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