Gosnell v. U.S. Marshals Dep.

Filing 39

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 19 in full. Signed by Judge Brian Morris on 6/21/2017. Mailed to Gosnell (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DOUGLAS JAMES GOSNELL,
Plaintiff,

CV-15-153-M-BMM

vs.
CHRIS STROMMEN, FOUR
UNKNOWN MISSOULA COUNTY
JAIL EMPLOYEES, MARSHALS
SERVICE, OFFICIAL CAPACITY,

ORDER

Defendants.
Plaintiff Douglas Gosnell (Gosnell) is a federal prisoner proceeding pro se.
Gosnell filed an Amended Complaint on May 2, 2016. The named defendants are:
the United States Marshals Service; Deputy United States Marshal Chris Strommen
(Deputy Strommen); and four unknown John Doe Missoula County jail employees.
(Doc. 18 at 1).
Gosnell alleges unlawful activities by the Defendants on three separate
occasions. Gosnell alleges that the John Doe defendants assaulted him at the

Missoula County Detention Facility (MCDF) on August 10, 2015, while he was
incarcerated there. (Doc. 18 at 5-6). Gosnell alleges that he suffered injuries and
broken eye glasses during the assault. Id. Second, Gosnell alleges that one of the
John Doe defendants punched him in the eye on December 5, 2015. (Doc. 18 at 6).
Third, Gosnell alleges that while being transported to MCDF “on or about 2016,”
the United States Marshals Service lost his wheelchair and the United States
Marshals Service and Deputy Strommen lost his legal papers. (Doc. 18 at 7).
Gosnell asserts a claim against the United States Marshals Service under the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80, based on the loss of
his wheelchair and legal papers. Gosnell asserts claims against the John Doe
defendants under 42 U.S.C. § 1983. Gosnell alleges the John Does defendants
violated his constitutional rights under the Fourteenth Amendment to the United
States Constitution by using excessive force against him on August 10, 2015, and
on December 5, 2015. Gosnell asserts claims against Deputy Strommen under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). Gosnell alleges that Deputy Strommen violated his rights under the
First, Fifth and Fourteenth Amendments to the United States Constitution by losing
his legal papers on or about 2016, and by failing to action to protect him from the
assaults by the John Doe defendants on August 10, 2015, and December 5, 2015.
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Judge Lynch conducted a preliminary screening of the Amended Complaint
to determine whether any portion of the Amended Complaint was frivolous or failed
to state a claim upon which relief may be granted. Judge Lynch entered Findings
and Recommendations in this matter on December 21, 2016. (Doc. 19).
Judge Lynch recommended that this Court dismiss all of the claims against
the United States Marshals Service because Gosnell had failed to exhaust his
administrative remedies as required under 28 U.S.C. § 2675(a). (Doc. 19 at 16).
Judge Lynch recommended that this Court dismiss all of the claims against the John
Doe defendants without prejudice, subject to the condition that Gosnell may re-file
the claims should he discover the identities of the John Doe defendants in the
future. Judge Lynch further recommended that this Court dismiss all of the claims
against Deputy Strommen for failure to state a claim, except for one of the Fifth
Amendment “failure to protect” claims. (Doc. 19 at 16).
Gosnell filed objections to Judge Lynch’s Findings and Recommendations on
January 3, 2017. (Doc. 20). The Court reviews de novo findings and
recommendations to which objections are made. 28 U.S.C. § 636(b)(1). The Court
has reviewed de novo Judge Lynch’s Findings and Recommendations. The Court
finds no error in Judge Lynch’s Findings and Recommendations, and adopts them
in full.

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A.

Claims Against United States Marshals Service

Gosnell asserts claims against the United States Marshals Service under the
FTCA. A claimant must exhaust his administrative remedies before filing a FTCA
claim against the United States. See Jerves v. United States, 966 F.2d 517, 518-19
(9th Cir. 1992). The claim must be presented to the appropriate federal agency, and
the claim must be denied by the agency. 28 U.S.C. § 2675(a). This administrative
exhaustion requirement is jurisdictional. Brady v. United States, 211 F.3d 499, 502
(9th Cir. 2000). The exhaustion requirement “must be strictly adhered to.” Id.
Judge Lynch informed Gosnell on April 6, 2016, that his original Complaint
was inadequate because he had failed to allege compliance with the FTCA’s
exhaustion requirement. (Doc. 17 at 3). Judge Lynch gave Gosnell an opportunity
to cure the deficiency in his Complaint by filing an Amended Complaint. (Doc. 17
at 9). Gosnell’s Amended Complaint did not cure the deficiency described by
Judge Lynch. The Amended Complaint provides no indication that Gosnell has
complied with the exhaustion requirements of the FTCA. This Court therefore
lacks jurisdiction over Gosnell’s claim against the United States Marshals Service.
Gosnell’s claims against the United States Marshals Service will be dismissed for
failure to exhaust administrative remedies under 28 U.S.C. § 2675(a).
B.

Claims Against the John Doe Defendants
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Gosnell’s Amended Complaint, construed liberally, asserts a Fourteenth
Amendment excessive use of force claim against the John Doe defendants based
upon the assaults that allegedly occurred on August 10, 2015, and on December 5,
2015, at MCDF. The use of John Doe defendants is generally not favored in federal
court. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). The claims
against the John Doe defendants will be dismissed without prejudice. Gosnell will
be afforded an opportunity, however, to identify the unknown defendants through
discovery. Id. Should Gosnell learn the identities of the John Doe defendants in the
future, he may file a Second Amended Complaint to add the identified persons as
defendants.
C.

Claims Against Deputy Strommen

Gosnell asserts the following claims against Deputy Strommen: 1) a First
Amendment denial of access to court claim; 2) a Fifth Amendment denial of
procedural due process claim; 3) a Fourteenth Amendment equal protection claim;
and 4) a Fifth Amendment failure to protect claim.
1.

First Amendment Denial of Access to Court Claim

Gosnell alleges that Deputy Strommen denied him access to court in
contravention of the First Amendment by losing his legal papers while he was being
transported to MCDF on or about 2016. Judge Lynch has recommended that the

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claim be dismissed because Gosnell has failed to allege an actual injury. (Doc. 19
at 8).
When a prisoner asserts a denial of access to court claim he must allege that
the defendant caused him “actual injury.” Lewis v. Casey, 518 U.S. 343, 348
(1996). An actual injury exists only if the defendant’s conduct has hindered the
prisoner’s ability to pursue his legal claims. Id. at 351.
Gosnell has not alleged, in his Amended Complaint, that he has suffered an
actual injury. Gosnell has not alleged that Deputy Strommen has hindered his
ability to purse his legal claims. Gosnell has filed successfully an original
Complaint and an Amended Complaint. Gosnell’s First Amendment claim will be
dismissed for failure to allege actual injury.
2.

Fifth Amendment Due Process Claim

Gosnell alleges that Deputy Strommen violated his right to procedural due
process in contravention of the Fifth Amendment by losing his legal papers on or
about 2016.
Prisoners have a protected interest in their personal property. Hansen v. May,
502 F.2d 728, 730 (9th Cir. 1974). The Due Process Clause of the Fifth
Amendment provides that no person shall be deprived of property without due
process of the law. U.S. Const. Amend 5. A claim for failing to provide procedural
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due process does not accrue until the government “fails to provide due process.”
Zinermon v. Burch, 494 U.S. 113, 126 (1990).
Here, Gosnell has an adequate post-deprivation remedy. Gosnell may file an
administrative claim with the Attorney General for the loss of his property. See 31
U.S.C. § 3724(a). The Attorney General may settle a property loss claim up to
$50,000, an amount more than adequate to compensate Gosnell for the loss he
alleges. Id. Given that Gosnell has an adequate post-deprivation remedy, his Fifth
Amendment procedural due process claims fails as a matter of law. Hudson v.
Palmer, 468 U.S. 517, 533 (1984).
3.

Fourteenth Amendment Equal Protection Claim

Gosnell alleges that Deputy Strommen violated his right to equal protection
under the Fourteenth Amendment by failing to protect him from the alleged assaults
by employees at MCDF on August 10, 2015, and on December 5, 2015.
The Equal Protection Clause requires the government to treat all persons
similarly situated alike. City of Cleburne, TX v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985). To plead a cognizable equal protection claim, a plaintiff must show: 1)
that the government intentionally treated him differently than others similarly
situated; and 2) that the government has no rational basis for the difference in
treatment. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); North
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Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

Gosnell has

failed to plead a cognizable equal protection claim. Gosnell has failed to allege that
the government intentionally treated him differently than similarly situated persons.
Gosnell’s equal protection claim must be dismissed for failure to state a claim.
4.

Fifth Amendment Failure to Protect Claims

Gosnell alleges that Deputy Strommen violated the Fifth Amendment by
failing to protect him from assaults by employees at MCDF on August 10, 2015,
and on December 5, 2015.
To plead a cognizable Fifth Amendment failure-to-protect claim, a prisoner
must show:
1.

The defendant made an intentional decision with
respect to the conditions under which the plaintiff
was confined;

2.

Those conditions put the plaintiff at substantial
risk of suffering serious harm;

3.

The defendant did not take reasonable available
measures to abate that risk, even though a
reasonable officer in the circumstances would have
appreciated the high degree of risk involved —
making the consequences of the defendant’s
conduct obvious; and

4.

By not taking such measures, the defendant caused
the plaintiff’s injuries.

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Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). The third
element requires a showing that the defendant’s conduct was “objectively
unreasonable.” Id. The reasonableness of a defendant’s actions necessarily turn
“on the facts and circumstances of each particular case,” taking into account what
the defendant knew at the time. Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473
(2015).
a.

August 2015 Incarceration

Gosnell alleges that he was assaulted on August 10, 2015. Gosnell fails to
allege, however, that Deputy Strommen placed him at MCDF in August 2015
knowing that he faced a substantial risk of harm. Gosnell had not suffered harm at
MCDF before August 2015. Gosnell has failed to state a cognizable failure-toprotect claim based upon his incarceration at MCDF in August 2015.
b.

December 2015 Incarceration

Gosnell alleges a failure to protect claim against Deputy Strommen based on
his incarceration at MCDF in December 2015. Gosnell alleges that he told Deputy
Strommen in December 2015 that he would not be safe at MCDF because he had
been assaulted there in August 2015. Gosnell’s Amended Complaint, construed
liberally, alleges a cognizable Fifth Amendment failure-to-protect claim against
Deputy Strommen.
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Accordingly, IT IS ORDERED:
1.

Gosnell’s claims against the United States Marshal’s Service are

DISMISSED for failure to exhaust administrative remedies under 28 U.S.C.

§

2675(a).
2.

Gosnell’s Fourteenth Amendment excessive use of force claims

against the John Doe defendants are DISMISSED without prejudice. Gosnell may
amend his pleadings should he later discover the identities of the four John Doe
defendants.
3.

Gosnell’s First Amendment denial of access to court claim against

Defendant Strommen is DISMISSED.
4.

Gosnell’s Fifth Amendment due process claim against Defendant

Strommen is DISMISSED.
5.

Gosnell’s Fourteenth Amendment equal protection claim against

Defendant Strommen is DISMISSED.
6.

Gosnell’s Fifth Amendment failure to protect claim against Defendant

Strommen based upon his incarceration at MCDF in August 2015 is DISMISSED.
Gosnell’s Fifth Amendment failure to protect claim against Defendant
Strommen based upon his incarceration at MCDF in December 2015 is not
dismissed.

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DATED this 21st day of June, 2017.

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