Ellison v. Kirkegard et al

Filing 53

ORDER ADOPTING 10 , 40 FINDINGS AND RECOMMENDATIONS in full; denying Motion for injunctive relief contained in 2 Complaint; denying 8 , 35 Motions for TRO. Due process claim DISMISSED. Defendants Kirkegard, Fletcher, Salmonsen, Wilson, Wood, Beeson, Reich, Struzel, Wendy Zuber, Captain Zuber, and John Does are DISMISSED. Signed by Judge Dana L. Christensen on 1/31/2018. Mailed to Ellison. (TAG)

FILED
JAN 3 1 2018
IN THE UNITED STATES DISTRICT COURTc1erk, u.s DistrictCourt
FOR THE DISTRICT OF MONTANA
Distri~ 1~~ntana
HELENA DIVISION

LIONEL SCOTT ELLISON,
CV 17-45-H-DLC-JTJ
Plaintiff,
ORDER

vs.
STATE OF MONTANA WARDENS,
et al.,
Defendants.

Before the Court are United States Magistrate Judge John T. Johnston's
Findings and Recommendations ("F&R") entered on June 21, 2017 (Doc. 10), and
December 15, 2017 (Doc. 40).

Judge Johnston recommends that Ellison's First

and Sixth Amendment claims regarding his legal mail go forward, as well as
Ellison's First Amendment retaliation claim.

Judge Johnston recommends

dismissing Ellison's due process and access to the courts claims, dismissing certain
Defendants, and dismissing Ellison's motions for injunctive relief.

Ellison timely

objected and is accordingly entitled to de novo review of those findings to which
he specifically objects.

28 U.S.C. § 636(b )(1 )(C).

This Court reviews for clear

error those findings and recommendations to which no party objects.

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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).

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).
Notwithstanding the above, "[w]here a petitioner'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 habeas petition, the
applicable portions of the findings and recommendations will be reviewed for clear
error."

Rosling v. Kirkegard, 2014 WL 693315, at *3 (D. Mont. Feb. 21, 2014)

(citations omitted).
DISCUSSION

Because the parties are familiar with the factual and procedural background
detailed in Judge Johnston's F&Rs and the numerous filings before the Court, it
will not be restated here.
Ellison's objections fall into three categories: (1) objections that rehash
similar arguments that Ellison has made throughout this litigation; (2) objections
specifically directed towards Judge Johnston's F&Rs, and (3) objections that allege

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new facts related to claims and Defendants not contained in the initial Complaint.

1

Consequently, the Court will address Ellison's objections regarding Judge
Johnston's legal analysis by de novo review, and will address all other objections
for clear error.
LEGAL STANDARD

Under 28 U.S.C. § 1915, a court should dismiss a complaint filed in forma
pauperis by a prisoner against a governmental defendant before it is served if it is
frivolous or malicious, fails to state a claim upon which relief may be granted, or
seeks monetary relief from a defendant who is immune from such relief.

A

complaint is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A complaint fails to state a claim

upon which relief may be granted when it fails to allege the "grounds" entitling the
plaintiff to relief.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Rule 8(a)(2) requires a complaint to "contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face."
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

Ashcroft v.

"A document

filed pro se is to be liberally construed, and a pro se complaint, however inartfully
1

To the extent that Ellison's objections allege new facts unrelated to the claims reviewed in Judge Johnston's F&Rs,
these facts are not properly before the Court at this time. As discussed in Judge Johnston's second F&R (Doc. 40),
pursuant to Rule 15 of the Federal Rules of Civil Procedure, Ellison may amend his Complaint to include a complete
account of all facts that he believes warrant the Court's redress. The Court has already permitted the parties to amend
their pleadings in the Court's Scheduling Order. (Doc. 41.) Specifically, Ellison has until March 16, 2018 to amend
his Complaint. Pursuant to this Court's local rules, Ellison's motion must include a proposed pleading attached as an
exhibit. Local R. 15.1.

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pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers."

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks

omitted); see also Fed. R. Civ. P. 8(e) ("Pleadings must be construed as to do
justice.").

I.

Legal Mail

Judge Johnston recommended that Ellison had set forth sufficient facts to
state both First and Sixth Amendment claims against Defendant Daniels for
opening and removing vital documentation from his legal mail.
11.)

(Doc. 10 at 9-

Although Ellison has alleged additional facts supporting his claim, the Court

does not construe these as an objection.

Therefore, reviewing for clear error, the

Court finds none and adopts the recommendation.

II.

Retaliation

Similarly, Judge Johnston recommended that Ellison's First Amendment
retaliation claim go forward, finding that the threats and subsequent disciplinary
consequences plausibly resulted from Ellison's exercise of his First Amendment
rights.

(Doc. 10 at 16.)

Ellison does not object.

Having reviewed for clear

error and finding none, the Court adopts this recommendation.

III.

Due Process and Injunctive Relief

Judge Johnston recommended dismissal of Ellison's due process claim and
his requests for injunctive relief.

(Doc. 10 at 15.)

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In a single argument, Ellison

objects to both recommendations and reasserts the allegations stated in his
Complaint.

(Doc. 12 at 6-7.)

He emphasizes that, contrary to the Judge's

determination, the conduct of MSP officials does meet the standard to survive
dismissal.
This objection fails to present any new basis in law or fact regarding the
merits of either recommendation.

Because Ellison has failed to specifically

object, and the Court finds no clear error, it adopts the recommendation to dismiss
the due process claim and the motions for injunctive relief (Docs. 2; 8).

IV.

Access to Courts

Judge Johnston recommended dismissal of Ellison's denial of access to the
courts claim, finding that Ellison had failed to demonstrate that a "nonfrivolous
legal attack on [his] sentence, or conditions of confinement had been frustrated or
impeded," and that he suffered an actual injury as a result.

Lewis v. Casey, 518 U.S. 343, 353-55 (1996).)

(Doc. 10 at 11 citing

In Ellison's objection, he asserts

three new and related incidents: (1) Mr. Tenenbaum, Ellison's appellate defender,
has discontinued Ellison's criminal appeal; (2) Ellison has been prejudiced by
having to replace the confiscated documents at his own expense; and (3) his library
privileges have been suspended, making him unable to conduct legal research.
(Doc. 12 at 5-7.)

The Court reviews these claims de novo.

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2

In regards to Ellison's first assertion, the Court takes judicial notice of the
fact that Ellison's attorney has not ceased his representation, and Ellison's criminal
appeal is being actively litigated, as demonstrated by the following:

( 1) On July

5, 2017, the Montana Supreme Court denied Ellison's prose motion for
substitution of counsel.

State v. Ellison, No. DA 16-0105 (Mont. July 5, 2017);

(2) On January 2, 2018, Mr. Tenenbaum filed Appellant's Opening Brief before
the Montana Supreme Court.

Br. of Appellant, Jan. 2, 2018, No. DA 16-0105.

Accordingly, the Court construes any allegation that Ellison's criminal appeal has
been hampered by the loss of representation as an unsupported and frivolous claim
and will consider only the remaining two allegations.
This aside, the Court is still unable to find an "actual injury."
518 U.S. at 350.

See Lewis,

"Prisoners have a constitutional right of access to the courts."

Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011) overruled on other
grounds by Richey v. Dahne, 87 F.3d 1202, 1209 n. 6 (9th Cir. 2015).

This right

includes "both a right to meaningful access to the courts and a broader right to
petition the government for a redress" of a prisoner's grievances.

Id. at 1102.

The Ninth Circuit differentiates between claims involving a prisoners' right to
2

In reviewing the sufficiency of a claim, a court may take judicial notice of facts outside of the pleadings. United
States v. Ritchie, 342 F.3d 903, 907--08 (9th Cir. 2003). Federal Rule of Evidence 201 provides that a court may take
judicial notice of "a fact that is not subject to reasonable dispute because it can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned." Public records and government documents obtained
through reliable means are proper subjects ofjudicial notice. See Gerritsen v. Warner Bros Entm 't Inc., 112 F. Supp.
3d 1011, 1033 (C.D. Cal. 2015); see also Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir.
2006) (taking judicial notice of court filings).

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affirmative assistance, which is limited to the tools necessary to attack a sentence
and "challenge the conditions of ... confinement," and claims regarding a
prisoners' right to litigate without active interference.

Id.

However, in Lewis, the Supreme Court explained that an "actual injury"
must arise before a prisoner has the standing to assert either right.
U.S. at 349-52.

See Lewis, 518

An "actual injury" occurs when there is a "specific instance" in

which a prisoner was denied access.

Id. at 349.

The injury requirement is "not

satisfied by just any type of frustrated legal claim."

Id. at 354-55.

It is only

satisfied when an inmate is denied access with regard to a direct appeal from his or
her conviction, a habeas petition, or a civil rights action.

Id.

"Impairment of

any other litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration."

Id. at 355.

In Silva, the Court found an "actual injury" where prison officials repeatedly
transferred an inmate between prison facilities and withheld his legal documents to
prevent him from litigating various pending lawsuits.
result, several of the inmate's suits were dismissed.

658 F .3d at 1104.

As a

Id.

As a threshold matter, the Court finds insufficient facts to conclude that the
mail room issues have caused Ellison any injury in his criminal appeal or civil
rights claim.

Unlike Silva, Ellison has not stated any facts indicating a permanent

loss or destruction of any of his documentation.

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Rather, Ellison himself

confirmed that the entire file containing the exculpatory evidence required for his
appeal has been filed with the Court (Doc. 12 at 5), a duplicate copy of his file is
also being held by his Chicago attorney (Doc. 21 at 1), and his attorney indicated
that he is willing to replace any of the lost documents (Doc. 12 at 5).

Nor has

Ellison alleged any missed filing deadlines that have frustrated or precluded his
claims as a result of his library privileges having been suspended.

Quite the

opposite; Ellison has had substantial access to this Court as evidenced by his 22
filings in this matter alone.

(See Docs. 4; 7; 8; 11; 18; 20; 21; 22; 28; 30; 31; 33;

34; 35; 37; 38; 39; 43; 46; 48; 49; 50.)

And while it is no doubt inconvenient to

incur the cost of replacing his lost documentation, this is not the kind of "actual
injury" required for standing.
law.

For this harm, Ellison's remedy lies in state tort

See, e.g., Mont. Code Ann.§ 29-9-101(1) (2017).
Because Ellison has not stated facts sufficient to find an "actual injury" to

support his right to access the courts claim, the Court adopts Judge Johnston's
recommendation to dismiss it.

V.

Dismissal of Defendants

Judge Johnston recommended dismissal of Defendants Salmonsen, Wilson,
Wood, Beeson, Reich, Strutzel, Wendy Zuber, Captain Zuber, John Does, and
Wardens Kirkegard and Fletcher.

(Doc. 10 at 19.) Ellison objected specifically

to the recommendation to dismiss Warden Fletcher.

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(Doc. 12 at 3.)

While

urging the Court to retain Warden Fletcher as a Defendant, he also acknowledges
that the majority of the alleged events took place prior to Warden Fletcher's
appointment.

(Id.)

The only implication of liability against Warden Fletcher is

Ellison's general allegation that at some point Warden Fletcher was shown a
grievance and failed to sign it.

(Id. at 4.)

Additionally, Ellison claims "Warden

Fletcher may just be a new[] Warden that has been caught up in ... [an]
unconstitutional tradition."

(Id. at 4.)

Supervising officers cannot be held liable under a theory of respondeat
superior.

Monell v. Department of Soc. Servs., 436 U.S. 658, 691 (1978). Section

1983 imposes individual liability upon state actors under a theory of supervisory
liability only when acts amount to a "deliberate indifference based upon the
supervisor's knowledge of and acquiescence in unconstitutional conduct by his or
her subordinates."

Star v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

This

requirement may be satisfied by showing the supervisor participated in or directed
the violations or "knew of the violations and failed to act to prevent them."
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

Ellison has not alleged any facts that would impose liability on Warden
Fletcher under supervisory liability.

The Court finds no violation in failing to

sign a kite or in his status or actions as the new Warden.

Nor has Ellison put forth

any facts to suggest that Warden Fletcher's conduct amounts to "deliberate
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indifference based upon [his] knowledge and acquiescence in unconstitutional
conduct by his subordinates."

Star, 652 F.3d at 1207.

Rather, Ellison concedes

that most of the conduct in his Complaint arose before Warden Fletcher was acting
in his capacity as Warden.
Consequently, the Court agrees with Judge Johnston that these allegations
are insufficient to state a claim against Warden Fletcher.

Additionally, the Court

has found no clear error in Judge Johnston's recommendation to dismiss the other
Defendants, and thus adopts it.

VI.

Ellison's Second Motion For Emergency Injunctive Relief and a
Temporary Restraining Order

While Ellison's first Motion for Temporary Relief was pending, he filed a
second Motion requesting protection against "physical bodily harm" and
unconstitutional acts of the MSP officials.

(Doc. 35 at 1.)

Specifically, he

claims three instances of physical abuse, including: (1) that his left teste was
intentionally crushed by Dr. Kohut in retaliation for Ellison's filing grievances
(Docs. 35 at 1; 43 at 6); (2) that he was pushed down a flight of stairs by either
Sergeant Graham or another guard, resulting in the loss of a tooth (Docs. 35 at 1;
43 at 7); and (3) that Nurse Rosanna intentionally jabbed a needle into his ear
breaking his right eardrum (Doc. 43 at 8).
Judge Johnston recommended dismissing Ellison's request upon finding that
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Ellison requested relief against persons who are not a party to the suit, and thus the
Court lacks jurisdiction.
for an injunction.

He further found that Ellison did not meet the standard

Though Ellison did not object regarding jurisdiction, he

objected to the latter finding, citing American Trucking Assoc. v. City ofLos
Angeles, 559 F .3d 1046, 1058-59 (9th Cir. 2009), for the proposition that his
claims meet the standard for injunctive relief because it is "always in the best
interest [of the public] to obey constitutional law."

(Doc. 43 at 14.)

The Court

will review de novo.
The Court agrees that it lacks jurisdiction over Dr. Kohut, Sergeant Graham,
and Nurse Rosanna because none of these persons are parties to the suit.

See

Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1983)
(stating that "[a] federal court may issue an injunction if it has personal jurisdiction
over the parties and subject matter jurisdiction over the claim; it may not attempt to
determine the rights of persons not before the court.").
The Court is also unable to conclude that Ellison meets the requisite
standard for a preliminary injunction.

"A preliminary injunction is an

extraordinary remedy never awarded as of right."
Council, Inc., 555 U.S. 7, 24 (2008).

Winter v. Natural Res. Def

"A plaintiff seeking a preliminary

injunction must show 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
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equities tips in his favor, and that an injunction is in the public interest."
(citations omitted).

Id. at 20

However, a preliminary injunction "should not be granted

unless the movant, by a clear showing, carries the burden of persuasion."

Lopez

v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (citations omitted, emphasis in
original).
Ellison's assertion that the retaliation and mail room conduct satisfies one of
these four elements carries some persuasive weight.

It is true that "constitutional

violations cannot be adequately remedied through damages and therefore generally
constitute irreparable harm."

American Trucking Assoc., 559 F.3d at 1059.

However, the Court cannot award Ellison relief on this basis alone.

At this stage

in litigation, the Court is unprepared to conclude that Ellison is "likely to succeed
on the merits."

While many of Ellison's claims are proceeding, the standard

needed to survive the pleadings is substantially lower than the standard required
for a preliminary injunction.

Having conducted a de novo review and found no

"clear showing" of the need for a preliminary injunction, the Court adopts the
recommendation to dismiss all related motions.

(Docs. 2; 8; 35.)

Accordingly, IT IS ORDERED that Judge Johnston's Order and Findings
and Recommendations (Doc. 10) are ADOPTED in Full.
1. Ellison's Motion for injunctive relief as contained in his Complaint (Doc.
2) and his Motion for Temporary Restraining Order and Preliminary
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Injunction (Doc. 8) are DENIED.
2. Ellison's due process claim is DISMISSED.
3. Defendants Kirkegard, Fletcher, Salmonsen, Wilson, Wood, Beeson,
Reich, Struzel, Wendy Zuber, Captain Zuber, and John Does are
DISMISSED.
IT IS FURTHER ORDERED that Judge Johnston's Order and Findings and
Recommendations (Doc. 40) are ADOPTED in Full.
4. Ellison's Second Motion for a Temporary Restraining Order (Doc. 35) is
DENIED.

DATED this

3\ stday of January, 2018

Dana L. Christensen, Chief Judge
United States District Court

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