Bjork v. Slaughter et al

Filing 40

ORDERED: Judge Johnston's Findings and Recommendation (Doc. 32) is ADOPTED in full. Counts V-VII, X, XI, and XIII-XXI of Bjork's Amended Complaint (Doc. 22) are DISMISSED WITHOUT PREJUDICE. Transmitted electronically to prison for delivery to Plaintiff. Signed by Judge Dana L. Christensen on 10/9/2019. (HEG)

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

OCT 09 2019
Clerk, U.S Courts
District Of Montana
Missoula Division

CV 18-107-H-DLC-JTJ

CHAD ERIC BJORK,
Plaintiff,

ORDER

vs.
CHRISTINE SLAUGHTER
(CHO/DHI), TOM BOLTON (MSP
TRAINING), SAM JOVANOVICH (A
UNIT MANAGER), and RANDALL
JONES (SERGEANT),
Defendants.

On August 26, 2019 United States Magistrate Judge John T. Johnston
entered his Order and Findings and Recommendations recommending that certain
claims of inmate Chad Eric Bjork's Amended Complaint be dismissed under
Federal Rule of Civil Procedure 20(a)(2). (Doc. 32.) Bjork timely objects and so
is entitled to de novo review of those findings to which he specifically objects. 28
U.S.C. § 636(b)(l)(C). This Court reviews for clear error those findings to which
no party objects. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003); 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).

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BACKGROUND

On December 13, 2018 Bjork filed his original Complaint (Doc. 2) and
shortly thereafter filed a preliminary injunction and temporary restraining order
(Doc. 4). On April 8, 2019 Judge Johnston screened Bjork's Complaint,
determined it was nonfrivolous, and ordered Christine Slaughter, Tom Bolton, Sam
Jovanovich, and Randall Jones to respond to Bjork's allegations. (Doc. 10.)
Generally, the Complaint alleged that: (1) Jones used excessive force and retaliated
against Bjork; Bolton conducted an unreasonable strip search; (3) Jovanovich
acquiesced in both of these incidents and further retaliated against Bjork; and (4)
that Slaughter retaliated against Bjork for requesting accommodation under the
Americans with Disabilities Act in a disciplinary hearing. (Doc. 2.) On June 6,
2019, Defendants answered the Complaint. (Doc. 14.) Then, on July 22, 2019
Bjork filed an Amended Complaint seeking to add 16 additional defendants and 17
additional claims. (Doc. 22.) Judge Johnston determined that the lion's share of
these claims were factually unrelated and asserted against new defendants, and
therefore inappropriately joined in this lawsuit. (Doc. 32 at 1.) However, the
Magistrate Judge recommended that the claims against Defendants Rees, Stray and
Cobban proceed and ordered those defendants to respond to the Amended
Complaint. (Id.)

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DISCUSSION

Permissive j oinder of parties is governed by Federal Rule of Civil Procedure
20. The rule provides that defendants may be joined in one action if: "(1) a right to
relief [is] asserted by, or against, each plaintiff or defendant relating to or arising
out of the same transaction or occurrence; and (2) some question of law or fact
common to all the parties will arise in the action." League to Save Lake Tahoe v.

Tahoe Reg'l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977). Even when the
requirements for permissive joinder are met, a court may exercise discretion to
deny joinder to avoid prejudice, delay, ensure judicial economy, and safeguard
principles of fairness. Seely v. Baca, No. 315CV00 118MMDVPC, 2016 WL
829915, at *1 (D. Nev. Mar. 1, 2016); Coleman v. Quaker Oats Co., 232 F.3d
1271, 1296 (9th Cir. 2000).
When it comes to claims brought under the Prison Litigation Reform Act
("PLRA"), joinder is scrutinized more carefully in order not to frustrate the filing
fee requirements. See Seely, 2016 WL 829915, at *2; Hubbardv. Haley, 262 F.3d
1194, 1197-98 (11th Cir. 2001).
Judge Johnston determined that most ofBjork's new claims raised in the
Amended Complaint ought to be dismissed as failing to meet Rule 20's
requirements. The Magistrate Judge determined that many of the newly added
claims involved separate factual scenarios, different legal theories, occurred at
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separate times, and/or were asserted against different defendants. (See Doc. 32 at
4-6.) Bjork now attempts to overcome this challenge, by alleging that all claims
are related because they are all part of an institutional "campaign of harassment."
(Doc. 35 at 1.) This is not the sort of specific objection that is entitled to de novo
review. The Court will review for clear error.
Even though claims asserted by pro se litigants are entitled to greater
leniency, Erickson v. Pardus, 551 U.S. 89, 94 (2007), Bjork fails to allege facts
sufficient to support this theory. For example, he does not allege that any of the
defendants were motivated or inspired to cause him harm because they saw one
another doing so. He does not allege any conspiracy or shared purpose that caused
each participant to act towards a broader objective to harm him. In short, the
Amended Complaint does nothing more than cite a series of individual instances
accompanied by the conclusion that these defendants "acted in concert" towards a
"campaign of harassment." (Doc. 35 at 3.) Joining each of these defendants
together in a single action is improper under Rule 20 and would circumvent the
requirements of the PLRA.
Next, Bjork specifically objects to the dismissal of the claims against Karen
Peterson, Den Lemon, Mike Fletcher, Michele (Shelly) Steyh, and Sergeant
Machler. The Court will review these claims de novo.

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I.

Karen Peterson

Bjork asserts that Peterson and Slaughter acted in concert to deny Plaintiff
his due process rights at a disciplinary hearing. (Doc. 35 at 1.) The Complaint
alleges that Slaughter retaliated against Bjork for requesting disability
accommodation by finding him guilty of disciplinary violations on this basis.
(Doc. 2 at 13.) The Complaint does not go into much detail on how or when this
occurred. The Amended Complaint alleges that Peterson searched Bjork's legal
filings and took portions of his legal mail and then wrote him up for a disciplinary
infraction. (Doc. 22 at 22.) Bjork seems to allege that the disciplinary infraction
was a result of Bjork exercising his constitutional right to access the courts. Even
if the Court assumes that that the disciplinary violation filed by Peterson was the
same violation that Slaughter determined Bjork was guilty of, there is not a
sufficient factual nexus to properly join Peterson in this matter. Bjork has not
alleged anything to show that the women were "in concert" with one another, for
example, that Slaughter asked Peterson to file a grievance against Bjork in order to
punish him or that Peterson was a part of that adjudication process. Peterson will
not be joined.
II.

Den Lemon

The Amended Complaint alleges that Den Lemon caused damage to Bjork's
inner ear when he intentionally blasted a crackling and popping noise over the
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intercom in Bjork's unit for sadistic and malicious pleasure. (Doc. 19 at 44.)
Bjork subsequently filed a grievance against Lemon and was then subjected to
verbal harassment from Lemon for doing so. (Jd.) In his objections, Bjork argues
that this act was taken as part of the "campaign of harassment" involving Slaughter
and Rees. (Doc. 35 at 2.) There is no indication from the Amended Complaint
that this incident with Bjork's ear resulted in any disciplinary action taken against
him. Thus, there are no facts or legal theories that involve Slaughter.
Furthermore, the Amended Complaint does not allege a retaliation claim against
Rees. Bjork accuses Rees of denial of medical care for failing to treat many of his
ailments, including his ear. Bjork's claim against Rees arises under the Eighth and
Fourteenth Amendments and contains no allegations that Rees offered subpar
medical services because Bjork filed grievances against anyone at the prison. This
claim is unrelated, and j oinder of Lemon is therefore improper.

III.

Mike Fletcher

The Amended Complaint alleges a First Amendment claim for denial of
access to courts against Warden Fletcher. (Doc. 22 at 15.) The Amended
Complaint alleges that on August 30th, at lunchtime, Warden Fletcher was issued a
summons related to litigation from Bjork and a few other inmates. The warden
became agitated and referred to all of the inmates involved as "bitches." (Jd.) In
his objections, Bjork contends that this claim is emblematic of the "custom" of
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retaliation and harassment that confronts inmates who access the courts. (Doc. 35
at 2.)
"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 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. See Lewis, 518
U.S. at 349-52. 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.
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The claim against Fletcher is not actionable. Name calling Bjork, while
inappropriate, does not rise to the level of the "actual injury" required for a First
Amendment claim because it does not allege that Bjork suffered any impediment
to the pursuit of his claims. Fletcher will not be joined.
IV.

Michele (Shelly) Steyh

The Amended Complaint alleges that Steyh was a unit manager in charge of
Bjork's transfer from Yellowstone County Jail and that she failed to make
arrangements to transfer Bjork's CPAP machine despite knowing that it was
critical to his health. (Doc. 22 at 14.) Bjork contends that this action "set the bar"
for the custom of retaliation against him, however, Bjork fails to allege that the
other named Defendants were aware of this event or somehow inspired to treat
Bjork poorly because of it. Rather, this claim seeks to bring a new defendant into
an existing lawsuit based on an entirely separate incident. Joinder is not
appropriate.
V.

Sergeant Machler

In his final objection, Bjork alleges that Sergeant Machler confronted Bjork
for having filed many grievances and complained that it had drawn the attention of
other prisoners. (Doc. 35 at 3.) These allegations are not contained in the
Amended Complaint. A claim raised for the first time in the objections is not

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properly before the court. See Fed. R. Civ. P. 3 ("A civil action is commenced by
filing a complaint with the court").
Having reviewed each of Bjork's objections, the Court adopts the findings
and recommendation in full.
IT IS ORDERED that Judge Johnston's Findings and Recommendation
(Doc. 32) is ADOPTED in full.
1. Counts V-VII, X, XI, and XIII-XXI ofBjork's Amended Complaint

(Doc. 22) are DISMISSED WITHOUT PREJUDICE.
DATED this

q"'1 day of October, 2019.

Dana L. Christensen, Chief Judge
United States District Court

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