Sanborn v. Roland

Filing 8

ORDER adopting Findings and Recommendations re 6 in that Sanborn's claims arsing under the First, Fourth, and Eight Amendments regarding the incidents on December 12, 2017, as set forth in the Complaint (Doc. 2) are DISMISSED WITH PREJUDI CE. FURTHER ORDERED: Sanborn is given leave to file an amended complaint on the form to be provided by the Clerk of Court's Office. Amended complaint is to be filed by 1/29/2019 or this matter will be dismissed. Sanborn MUST IMMEDIATELY ADVISE the Court of any change of address and its effective date. (see order for complete details). Amended complaint and order mailed to Sanborn. Signed by Judge Dana L. Christensen on 1/3/2019. (HEG)

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

KYLE SANBORN,
CV 18-37-H-DLC-JTJ
Plaintiff,
ORDER

vs.
RABANNE ROLAND,
Defendant.

On October 29, 2018, United States Magistrate Judge John T. Johnston
entered his Findings and Recommendations (Doc. 6) recommending that this
matter be dismissed for failure to state a federal claim. Plaintiff Kyle Sanborn
("Sanborn") filed an objection on November 16, 2018. (Doc. 7.) Consequently,
Sanborn is entitled to de novo review of those findings and recommendations to
which he has specifically objected. 28 U.S.C. § 636(b)(1 )(C). Absent objection,
this Court reviews findings and recommendations for clear error. United States v.

Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane); 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). "A party makes a proper
objection by identifying the parts of the magistrate's disposition that the party finds

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objectionable and presenting legal argument and supporting authority, such that the
district court is able to identify the issues and the reasons supporting a contrary
result." Montana Shooting Sports Ass 'n v. Holder, 2010 WL 4102940, at *2 (D.
Mont. Oct. 18, 2010) (citation omitted).
Sanborn is a prisoner and raises claims under the First, Fourth, and Eighth
Amendments. Sanborn's claims arise out of an incident during which he refused to
comply with Defendant's direct order that Sanborn remove his jacket to be
searched. Sanborn claims that he refused Defendant's order because it was below
freezing and there was a high wind. Sanborn stated as much to Defendant who
repeated her order again. When Sanborn continued to refuse and began to walk
away from Defendant, she had him handcuffed and taken to punitive segregation,
where he remained for ten days for refusing to obey a direct order. (Doc. 6 at 1-3.)
Sanborn claims that Defendant retaliated against him for exercising his First
Amendment right to freedom of speech. Sanborn claims that Defendant violated
his Fourth Amendment right to be free from unreasonable searches and seizures
and that her order that he remove his jacket in freezing temperatures violated his
Eighth Amendment right to be free from cruel and unusual punishment. (Id. at 612.)

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Screening Sanborn's claims pursuant to 28 U.S.C. § 1915 and§ 1915A,
Judge Johnston concluded, and this Court agrees, that Sanborn has failed to state
federal claims and his case should be dismissed. Judge Johnston appropriately
found that Sanborn had failed to raise a First Amendment retaliation claim because
he failed to allege requisite conduct that "'would chill or silence a person of
ordinary firmness from future First Amendment activities."' (Doc. 6 at 8 (quoting

Mendocino Envt'l Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999)).)
Sanborn does not address Judge Johnston's reasoning or conclusions on this point
and, consequently, this Court reviews for clear error. Finding none, this Court
agrees that Sanborn has failed to state a claim under the First Amendment.
Turning to Sanborn's Fourth Amendment claim, Judge Johnston correctly
balanced "'the need for a particular search against the invasion of personal rights
that search entails."' (/d. at 9 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).)
Judge Johnston considered "'the scope of the particular intrusion, the manner in
which it [was] conducted, the justification for initiating it, and the place in which it
[was] conducted."' (Id. (quoting Bell, 441 U.S. at 559).) Because Sanborn was
"merely asked to remove his coat" and there was ultimately "no actual search,"
Judge Johnston found that Sanborn had failed to state a Fourth Amendment
violation. (/d. at 9-10.) Sanborn's objection fails to take issue with any part of

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Judge Johnston's analysis or conclusions on this point and, again, this Court will
review for clear error. The Court again finds none.
Lastly, noting that Sanborn never actually removed his coat, Judge Johnston
found that his "Complaint is devoid of sufficient facts that rise to the level of an
Eighth Amendment constitutional violation." (Id. at 12.) Sanborn objects by
claiming that had he removed his coat, the temperature and wind made it "cold
enough to cause frost bite [sic] and possibly lose a finger or cause more than just
minor pain." (Doc. 7 at 1-2.) A prisoner claiming an Eighth Amendment
violation must show (1) that the deprivation he suffered was "objectively,
sufficiently serious;" and (2) that prison officials were deliberately indifferent to
his safety in allowing the deprivation to take place." Morgan v. Morgensen, 465
F.3d 1041, 1045 (9th Cir. 2006). The Court finds that Sanborn's fixation on the
possibility that he would get frostbite from exposure and possibly "lose a finger" is
highly improbable and, therefore, objectively lacking in seriousness. Moreover,
Sanborn was never actually subjected to any of the perceived potential harms he
complains of so he cannot be said to have sustained an injury. Sanborn's objection
on this issue is overruled.
Notwithstanding the above, the Court notes that Sanborn's objection raises
new facts concerning the conditions of the punitive segregation unit that Sanborn

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was confined in for ten days. (Doc. 7 at 2-3.) The Court finds that these facts may
support a colorable cause of action in a properly pied complaint.
Specifically, Sanborn claims that during his ten days of punitive segregation
he was "subjected to raw sewage," or that his cell was "filled with raw sewage,"
and that "the showers and cells also had bodily fluids that were all over the place."

(Id. at 2-3.) Additionally, Sanborn states that he had "no protective gear to clean
his cell." (Id. at 2.) If properly pied, these facts could support a claim under the
Eighth Amendment. "The Eighth Amendment does not tolerate prison officials'
deliberate indifference, in the absence of exigent circumstances, to substantial
deprivations of adequate shelter, food, drinking water, and sanitation." Johnson v.

Lewis, 217 F.3d 726, 735 (9th Cir. 2000). "[S]ubjection of a prisoner to lack of
sanitation that is severe or prolonged can constitute an infliction of pain within the
meaning of the Eighth Amendment." Anderson v. Cnty. ofKern, 45 F.3d 1310,
1315 (9th Cir. 1995). Indeed, "a prison official may be held liable under the
Eighth Amendment for denying humane conditions of confinement ... if he knows
that inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825,
847 (1994).

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Because Sanborn is proceeding pro se and has raised facts which might
support a claim, the Court is required to allow him to amend his pleading before
dismissing this action. Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987)
("[P]ro se litigant bringing a civil rights suit must have an opportunity to amend
the complaint to overcome deficiencies unless it is clear that they cannot be
overcome by amendment."). Thus, the Court will allow Sanborn to file an
amended pleading for review under 28 U.S.C. § 1915 and§ 1915A.
Any amended complaint must be retyped or rewritten in its entirety on the
court-approved form and may not incorporate any part of the original complaint by
reference. Once Sanborn files an amended complaint, it replaces the original
complaint, and the original complaint no longer serves a function in the case.

Ferdikv. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). If Sanborn fails to use the
court-approved form, the Court may strike the amended complaint and dismiss this
action. Sanborn may not change the nature of this suit by adding new, unrelated
claims in his amended complaint. George v. Smith, 507 F.3d 605,607 (7th Cir.
2007) (no "buckshot" complaints).
Any amended complaint must consist of short, plain statement telling the
Court: (1) the rights Sanborn believes were violated; (2) the name of the
defendant(s) who violated the rights; (3) exactly what each defendant did or failed

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to do; (4) how the action or inaction of that defendant is connected to the violation
of his rights; (5) when the alleged actions took place; and (6) what injury Sanborn
suffered because of that defendant's conduct. Rizzo v. Goode, 423 U.S. 362, 37172, 377 (1976). Sanborn must repeat this process for each prospective defendant.
He must provide specific factual allegations for each element of each of his claims
and must state with specificity to which defendants each claim applies. If Sanborn
fails to affirmatively link the conduct of a defendant with an injury suffered, the
allegation against that defendant will be dismissed for failure to state a claim.
If Sanborn's amended complaint fails to state a claim upon which relief may

be granted, the dismissal could count as a "strike" under the "3-strikes" provision
of28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a
civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 if
the prisoner has:
[O]n 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
§ 1915(g).
The Court further cautions Sanborn that the Court will not entertain a
rehashed pleading of the First, Fourth, and Eighth Amendment claims that have

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already been determined to be fatally deficient. If Sanborn fails to timely comply
with every provision of this Order, this case may be dismissed. Ferdik, 963 F.2d at
1260-61 (court may dismiss an action for failure to comply with any order of the
court). Accordingly,
IT IS ORDERED that Judge Johnston's Findings and Recommendations
(Doc. 6) are ADOPTED in that Sanborn's claims arising under the First, Fourth,
and Eighth Amendments regarding the incidents on December 12, 201 7, as set
forth in the Complaint (Doc. 2) are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Sanborn is given leave to file an amended
complaint on the form to be provided by the Clerk of Court's Office and in
accordance with the above Order. If no amended complaint is filed on or before
January 29, 2019, this matter will be dismissed. Should Sanborn file an amended
complaint, this matter shall be referred back to Judge Johnston.
IT IS FURTHER ORDERED that the Clerk of Court shall provide Sanborn
with a form for filing an amended complaint.
IT IS FURTHER ORDERED that at all times during the pendency of this
action, Sanborn MUST IMMEDIATELY ADVISE the Court of any change of
address and its effective date. Failure to file a notice of change of address may

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result in the dismissal of the action for failure to prosecute pursuant to Federal
Rule of Civil Procedure 41 (b).
DATED this

3~ day of January, 2019.

Dana L. Christensen, Chief Judge
United States District Court

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