Hall v. Myotte et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 9 in full. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 10/26/2017. Mailed to Hall (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUDDY MYOTTE, et al.,
United States Magistrate Judge John T. Johnston entered findings and
recommendations in this case on June 1, 2017, recommending that Plaintiff Stacy
Hall's ("Hall") complaint be dismissed for failing to state a claim upon which
relief may be granted. Hall timely filed an objection to the findings and
recommendations, and so is entitled to a de novo review of those findings and
recommendations to which he specifically objects. 1 28 U.S.C. § 636(b)(1 )(C).
This Court reviews for clear error those findings and recommendations to which
no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985).
Hall also filed a request to file an over length brief in support of his objections. (Doc.
13-1.) The Court grants Hall's motion to file an over length brief.
Clear error exists if the Court is left with a "definite and firm conviction that a
mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
2000) (citations omitted).
Hall was an inmate at the Montana State Prison at all times pertinent to his
claims. 2 He filed a civil rights petition against the following Defendants: Buddy
Myotte, Alvin Fode, Trisdan Kohut, PA Fisk, Mark Henderson, Jane McMahon,
Pamela Ward Monaco, Leslie Thornton, Rosanna Hengst, Dan Curran, Gutherie
Lewis, Lance Griffin, Samantha Peterson, Hiedi Abbott, Cyndy Hiner, Cathy
Redfern, Michael Zuber, Myron Beeson, Tom Wood, Leroy Kirkegard, Jane
Lamoure, Mike Batista, E. Shane Spears, Jonathan Pine, Stephen Powell, and
various unknown Does. Hall alleges multiple claims relating to Defendants'
alleged violation of his state and federal rights with regard to a slip and fall
accident and improper medical treatment. (See Doc. 10 at 139-153.)
Because the parties are familiar with the facts of this case they will only be
included here as necessary to explain the Court's order.
Hall makes nine specific objections to Judge Johnston's findings. They will
be addressed separately below.
Hall is currently incarcerated in South Dakota.
Hall contends that Judge Johnston's summary of the facts of this case
inaccurately recited Hall's Amended Complaint. The Court disagrees and finds
that Judge Johnston thoroughly summarized the facts. Nonetheless, this Court has
read the entirety of the 163-page Amended Complaint and will consider all of
the factual allegations made by Hall.
Slip and Fall
In regards to the slip and fall claim, Hall objects to the findings because he
"believes the facts as presented in his complaint state a valid claim for which he
may be entitled to some relief." (Doc. 13 at 12.) Hall argues that the safety
hazards in his working conditions at MSP were plainly obvious, that he informed
the guards they were unsafe, and that the staff ignored his complaints, all of which
support an Eighth Amendment claim.
Under Farmer v. Brennan, the United States Supreme Court found that an
Eighth Amendment violation under prison conditions occurs when: (1) the
deprivation alleged must be "objectively, sufficiently serious," and (2) the "prison
official's act or omission must result in the denial of 'the minimal civilized
measure of life's necessities."' 511 U.S. 825, 834 (1994). "To violate the Cruel
and Unusual Punishments Clause, a prison official must have a 'sufficiently
culpable state of mind." Id. This is one of"deliberate indifference" to one's
health or safety, or acting recklessly. Id. at 834-835. "[A]cting or failing to act
with deliberate indifference to a substantial risk of serious harm to a prisoner is the
equivalent of recklessly disregarding that risk." Id. at 835.
Hall clarifies his four Eighth Amendment claims in his objection: ( 1) that
he was compelled to perform his work duties or face disciplinary action; (2) that
he was refused proper equipment with which to reach high places after
complaining of the risks to safety; (3) that he was forced to perform hazardous
clean-up duties that brought him into direct contact with human fecal matter
without training, certification, or the proper protective gear, and (4) that he was
refused proper protective gear of any kind when ordered to clean human fecal
matter from three cells covered in feces. (Doc. 13 at 11.) Taking his allegations
as true, his first argument fails because the deprivation alleged is not objectively,
sufficiently serious. As in any type of work situation, it is normal to be subject to
recourse if you fail to perform your work duties. Further, Hall fails to allege
a sufficiently serious threat.
Second, the fact that the prison official told Hall to use the equipment in the
cell to stand on does not pose an objectively, sufficiently serious harm. Judge
Johnston found and this Court agrees that standing on a prison bed, desk, or toilet
did not pose an objective risk and Hall did not complain that to do so would be
unsafe. Hall's only request was for a step ladder, which the officers appropriately
considered to be a security risk and communicated to Hall. (Doc. 10 at 13.)
Moreover, there is no allegation that any prison official asked him to stand on the
cell furniture with a culpable state of mind.
Finally, Hall's two allegations that the prison officials deliberately
disregarded the safety risks of cleaning up human fecal matter without proper
training and equipment also fail as a matter of law. Hall claims that MSP usually
used the Low Side Haz-Mat work crew to clean contaminated cells, and that the
crew had specific training, solvents, and protective gear. Although the Haz-Mat
crew initially cleaned the cells, Hall and prisoner Klatt were asked to finish
cleaning the cells. (Doc. 10 at 14-15.) Hall explains that he and Klatt inspected
the cells and determined the necessary cleaning supplies and "protective Haz-Mat
gear" to finish the job. (Doc. 10 at 16.) However, Defendant Myotte stated "that
the gear was not necessary since they would get a change of clothing and a shower
after the work was completed." Id. Hall then requested "face mask shields located
in the unit's supply closet to protect their eyes from contaminated water splashes"
but that "Defendant Myotte denied the request stating that the shields were for
officer use only." (Doc. IO at 17.)
Hall has failed to allege any damages related to his health after cleaning the
cells. Because Hall fails to allege that he suffered physical injury as a result of the
conduct challenged in this action, he is precluded from pursuing a damages claim
premised on mental or emotional injury. See 42 U.S.C. § 1997e(e) ("No Federal
civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury or the commission of a sexual act").
However, "[t]o the extent that [plaintiff] has actionable claims for compensatory,
nominal or punitive damages-premised on violations of his [constitutional]
rights, and not on any alleged mental or emotional injuries ... the claims are not
barred by§ 1997e(e)." Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002).
Construing Hall's Complaint liberally, in relation to his Eighth Amendment claims
related to cleaning the human feces without proper safety equipment, Hall has
failed to allege any injury whatsoever as a result of the conduct. All of Hall's
damages arise from the shoulder injury he received after falling off of the desk.
Thus, to the extent Hall may have a claim, he can only recover nominal damages
for an Eighth Amendment violation.
Regardless, Hall's claims are without merit. Even though Hall was denied
protective equipment, he was only exposed to the fecal matter for a short period of
time and, again, Defendant Myotte instructed Hall that instead of the equipment he
would receive a shower and new clothing following completion of the work.
Because the exposure was minimal and Hall was offered a shower, the officers
were not deliberately indifferent to Hall's health. See, e.g., Hutto v. Finney, 437
U.S. 678, 686-687 (1978) ("A filthy, overcrowded cell and a diet of 'grue[l]'
might be tolerable for a few days and intolerably cruel for weeks or months.");
Smith v. Copeland, 87 F.3d 265, 269 (8th Cir.1996) (finding that a four-day
exposure to raw sewage from overflowing toilet in cell not cognizable because it
was a "de minimis imposition and thus [did] not implicate constitutional
concerns"); Anderson v. County ofKern, 45 F.3d 1310, 1314 (9th Cir.1995)
(determining that there was a cognizable Eighth Amendment violation where
serious health hazards lasted nine months, including inoperable toilets, insect
infestations in stagnant pools of water and a lack of cold water when temperatures
were above 100 degrees). Consequently, Hall's claims do not rise to a cognizable
Eighth Amendment claim. The Court affirms Judge Johnston's finding on these
claims, and they are dismissed.
Denial of Medical Care
Judge Johnston also found that all of Hall's claims relating to the denial of
his medical care do not present sufficient factual allegations to plausibly suggest
that any named defendant was deliberately indifferent to his medical health needs.
(Doc. 9 at 16-17.) When prison staff discovered that Hall had fallen off the desk
in the cell he received adequate medical treatment. He was immediately
transferred to the infirmary, following which he was then transferred to the Deer
Lodge Community Medical Center ("DLCMC"). He was seen and evaluated by
Pintler Surgical Specialists and Premier Physical Therapy of Deer Lodge. He was
also evaluated many times by Dr. Kohut at MSP. (Doc. 9 at 18-30.) Dr. Pine at
DLCMC concluded that surgery was not necessary. (Doc. 9 at 27.) Thus, Judge
Johnson determined that Hall failed to show that any of the staff members
purposefully fail to respond to his medical needs. See Jett v. Penner, 439 F.3d
1091, 1096 (9th Cir. 2006).
Hall contends that Judge Johnston mischaracterized his medical care claims
as being a mere disagreement between him and the doctors. (Doc. 13 a 12.) Hall
believes his Complaint "screams of the allegation that the defendants individually
and collectively acted in conscious disregard for Hall's serious medical
condition." (Doc. 13 at 16.) He also reiterates the same claims made before Judge
Johnston that the prison staff: ( 1) failed to immediately transport Hall to an
adequately staffed medical facility; (2) failed to provide proper pain medication,
interfered with treatment once prescribed; (3) failed to inquire further and treat
Hall's severe pain, interfered with the administration of Hall's pain medication;
(4) refused to order an immediate CAT scan of his shoulder; ( 5) failed to follow
the order of Dr. Pine regarding the immobilization of Hall's arm; (6) failed to
provide proper physical therapy; (7) denied him gym time and exercise equipment
for physical therapy; (8) and failed to conduct proper examinations of Hall's
shoulder. (Doc. 13 at 16-35.)
Upon review of the record, the Court finds no error with Judge Johnston's
finding that no prison staff member was deliberately indifferent to Hall's medical
care. He received medical care immediately upon injuring himself in the cell, and
was seen by multiple doctors and specialists. Although there may have been
minor delays in treatment due to procedures at MSP, Hall has failed to allege that
any staff member purposefully refused to respond to his medical needs and did so
with a culpable state of mind. 3 Colwell v. Bannister, 763 F.3d 1060, 1066 (9th
Hall also moves the Court to take judicial notice of the holding in Gill v. Mooney, 824
F.2d 192, 195-196 (2d Cir. 1987) when evaluating Hall's objection regarding Defendants denial
of gym time and exercise equipment for physical therapy. (Doc. 14.) In Gill, the Second Circuit
found that "[p]rison officials are more than merely negligent if they deliberately defy the express
instructions of a prisoner's doctors." Id. at 196. The Court takes judicial notice of this rule of
law. However, Hall has failed to plead sufficient facts to show that any named Defendant
deliberately defied a doctor's orders. While Hall claims that specialist Dr. Spears requested that
he get access to the gym facilities at the prison, Dr. Kohut reviewed Dr. Spears' opinion and
determined that such access presented a security issue and that Hall had been provided adequate
education on how to perform self-exercises in his cell. (Doc. 10 at 89-90.) To the extent that the
prison medical staff disagreed with the outside physical therapist, that is merely a difference of
opinion, and does not constitute a deliberate indifference to Hall's medical needs.
Cir. 2014) ("A prison official is deliberately indifferent under the subjective
element of the test only ifthe official 'knows of and disregards an excessive risk
to inmate health and safety.'"). To the contrary, Hall pleads many facts which
indicate that MSP staff did not ignore Hall's medical needs associated with his
serious shoulder injury and ensured he was seen by specialists and physical
therapists to address his reports of pain. Thus, Judge Johnston's findings
regarding Hall's claims for denial of medical care are affirmed.
Hall also claims that Dr. Kohut delayed medical treatment in retaliation for
the grievances filed by Hall. Judge Johnston recommended dismissal of this count
because there was no delay in providing medical treatment and that "Hall admits
to filing a multitude of grievances and yet he was still provided a vast amount of
medical care for his shoulder injury." (Doc. 9 at 18.)
Hall argues that he has presented facts sufficient to state a claim for
retaliation as evidenced by the Defendants' failure to supply adequate medical
treatment which lead to additional injuries (ruptured tendon), unnecessary pain
and suffering, and a longer recovery period. (Doc. 13 at 38.) Specifically, Hall
contends that Dr. Kohut did not address his pain and suffering because he viewed
him as a nuisance, and that he agreed to provide better treatment if Hall would
cease filing grievances. Further, he alleges that PA Fisk warned him that if he did
not stop filing kites that his treatment would be reduced to a bare minimum.
To state a claim for retaliation, a plaintiff must establish that: (1) a prison
official took adverse action against the inmate; (2) the adverse action was taken
because the inmate engaged in protected conduct; (3) the adverse action chilled
the inmate's First Amendment rights; and (4) the adverse action did not serve a
legitimate penological purpose. See Rhodes v. Robinson, 408 F.3d 559, 568-569
(9th Cir. 2005). The Court agrees with Judge Johnston that Hall has failed to
allege the first element because instead of taking an "adverse action" against Hall
when he was filing grievances, the very opposite happened. MSP continually
offered Hall appointments with the infirmary and follow-up appointments with
specialists outside of the prison to treat his complaints of shoulder pain.
Consequently, this claim is without merit.
Next, Hall claims that his grievances were improperly denied by MSP. He
contends that "the claim [he] attempted to frame is one which connects
supervisory staff to the harm [he] suffered by showing their personal involvement
by failing to remedy the conditions he brought to their attention through the
grievance process. (Doc. 13 at 39.)
Judge Johnston found, and this Court agrees, that while Hall has a First
Amendment right to petition the government through the prison grievance system,
Hall does not have a due process right in the processing of the appeals. Ramirez v.
Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Hall's clarification of his claim still
does not overcome the fact that his due process rights were not violated. Thus,
Hall's grievance claim is dismissed.
Disclosure of Medical Information
Hall voluntarily dismisses his claim under paragraphs 539 to 540 on the
grounds that the statements made by Dr. Kohut are more properly viewed as
evidence of his personal conflicts and attitudes toward Hall. (Doc. 13 at 39.)
Therefore, this claim is dismissed.
VII. Failure to Screen
Hall also contends that Judge Johnston failed to screen his claim relating to
the Defendants failure to post advisory and precautionary notices with regard to
the application of restraints involving Hall's right arm. Hall claims in his
Amended Complaint that Defendants used excessive force and that he "suffered
unnecessary and wanton infliction of great pain of body and mind." (Doc. 10 at
Eighth Amendment excessive use of force claims contain both a subjective
and an objective component which require two inquiries: (1) whether the official
charged with inflicting force acted with a sufficiently culpable state-of-mind; and
(2) whether the force used was sufficiently serious to establish a constitutional
violation. Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156
(1992); Wilson v. Seiter, 501 U.S. 294, 298 (1991). Not "every malevolent touch
by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9.
But the malicious and sadistic use of force to cause harm always violates
contemporary standards of decency, regardless of whether or not significant injury
is evident. Id. at 9; see also Oliver, 289 F.3d at 628 (finding that Eighth
Amendment excessive force standard examines de minimis uses of force, not de
minimis injuries). Furthermore, "[prison] administrators ... should be accorded
wide-ranging deference in the adoption and execution of policies and practices
that in their judgment are needed to preserve internal order and discipline and to
maintain institutional security." Hudson, 503 U.S. at 6 (ellipses in original)
Here, Hall is not alleging an Eighth Amendment excessive use of force
claim. He asserts that Defendants were deliberately indifferent to a risk of
excessive force by failing to provide an advisory notice regarding his shoulder
mJury. However, Hall alleges that he was normally handcuffed in front with belly
chains but "relief sergeants ... do their own thing regardless of what staff regulars
say." (Doc. 10 at 118). Defendant Lucier apparently investigated Hall's request
and spoke with Mrs. Hiner, the Director of Nursing. They determined that handcuffing Hall behind his back would not cause any further injury to his shoulder.
(Doc. 10 at 119.)
Hall alleges that is was inappropriate for Defendants to respond to his
grievances by describing them as a security issue. (Doc. 10 at 95, 116, ~~ 378,
443.) For the most part, he was cuffed in front-a determination made by security
staff. It was the rare occasion that he was cuffed from behind and when this
practice was investigated by Defendant Lucier, it was determined that this would
not cause further injury to his shoulder. (Doc. 10 at 119.) Hall's belief that he
needed to be cuffed in front is simply a difference of opinion with the Director of
Nursing who considered the issue and determined that it was unnecessary to issue
an order requiring that he be cuffed in front. The Ninth Circuit has made clear that
a difference of medical opinion is, as a matter of law, insufficient to establish
deliberate indifference. See Toguchi v. Chung, 391F.3d1051, 1058 (9th Cir.
Moreover, Hall fails to allege an actual excessive force claim because he
does not name any particular officer who allegedly handcuffed him from behind
causing him pain or further injury. Therefore, this claim is dismissed.
State Law Claims
Because the Court dismisses Hall's federal claims, the Court declines to
exercise jurisdiction over Hall's state law claims. 28 U.S.C. § 1367(c)(3); Acri v.
Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) ("The Supreme Court
has stated, and we have often repeated, that 'in the usual case in which all federal
law claims are eliminated before trial, the balance of factors ... will point towards
declining to exercise jurisdiction over the remaining state-law claims"' (citation
omitted)). This Court agrees with Judge Johnston that judicial economy is not
served by retaining jurisdiction over this case. Although Hall requests that the
Court accept supplemental jurisdiction, fairness and comity are best served by
declining jurisdiction. (Doc. 13 at 40.)
Inordinate Delay in § 1915A Screening
Finally, Hall argues that Judge Johnston was assigned to this case on July
13, 2017, but did not screen the Complaint until June 1, 2017, which was an
inordinate delay in reviewing his case under 28 U.S.C. § 1915A. Section 1915A
requires a district court to screen a complaint as soon as practicable after
docketing. However, even in unfortunate situations where a court does not enter
judgment in a timely manner, if a prisoner fails to state a claim upon which relief
may be granted, the timeliness issue is not prejudicial. Fields v. Rahimparast, 43
F. App'x 966, 969 (7th Cir. 2002) ("[W]hile unfortunate, the delay did not
prejudice Fields' case because he had fully recovered before he filed suit, and
ultimately the court properly determined that his complaint failed to state a
claim."); Teague v. Mayo, 553 F.3d 1068, 1072 (7th Cir. 2009) (finding that even
ifthere was a delay in processing prisoner's complaint, there was no effective
relief available to him after trial had occurred).
Here, the Court finds that while there was almost a year between the date
the Complaint was filed and the initial screening, Hall has not established any
prejudice as a result of the delay. Moreover, Hall's original 169-page Complaint
and 163-page Amended Complaint complicated and delayed the screening process
due to the large number of claims that were asserted in these pleadings.
Nonetheless, the Court concludes that because Hall fails to state a claim upon
which relief may be granted, the delay did not result in any prejudice.
Reviewing the remainder of Judge Johnston's findings for clear error, and
IT IS ORDERED that Judge Johnston's Findings and Recommendations
(Doc. 9) are ADOPTED IN FULL.
Hall's federal claims for relief are DISMISSED WITH PREJUDICE
for failure to state a claim.
The Court declines to exercise supplemental jurisdiction over
the remaining claims brought under state law and all state law claims should be
DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3).
The Clerk of Court is directed to close this matter and enter
judgment in favor of Defendants pursuant to Rule 58 of the Federal Rules of Civil
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 of this decision would not be taken in good faith. No
reasonable person could suppose an appeal would have merit. The record makes
plain the Amended Complaint lacks arguable substance in law or fact.
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) because Hall
failed to state a claim upon which relief may be granted.
DATED this 2.b+£,day of October, 2
Dana L. Christensen, Chief Judge
United States District Court
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