Hollinquest v. Nichols et al

Filing 5

ORDER TO DISMISS: IT IS ORDERED that Plaintiffs Complaint is DISMISSED. Plaintiff may file an Amended Complaint, curing the deficiencies noted above, within 30 days of the date of this order. Plaintiff is advised that failure to file an Amended Complaint shall result in the dismissal of this proceeding, with prejudice. Signed on 6/19/2017 by Judge Michael W. Mosman. (copy mailed to plaintiff) (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DASA Y HOLLINQUEST,
Case No. 2: 17-cv-00797-AC
Plaintiff,
ORDER TO DISMISS
v.
RUSS NICHOLS, Physical Plant
Manager; PAUL HOEYE, Asst. Sup.;
JOHN MYRICK; Superintendent;
MARK NOOTH, Eastside Administrator;
C. DIETER, Registered Nurse;
S. WHITBREAD, Nurse Manager;
S. DEACON, Grievance Coordinator
Asst.; ARNELL EYNON, Grievance
Coordinator; LT. C. IRVING;
LT. BOWDAN; MS. L. SCHUTT,
Executive Asst; DAVID PEDRO,
Operation Captain; T. RIDLEY,
Asst Superintendent; ROBERT WHITE,
Nurse Manager; A. HUGHES, Medical
Service Manager; STEVE SHELTON,
Medical Director; MICHAEL GOWER,
Asst Director Operations Division;
BOYLE, R.N.; Y. INGALLS, M.E.D. OMHP;
T. BUSTERT, LPC; JANA RUSSEL, BHS
Administrator; DR. GULICK; J. TAYLOR,
Grievance Coordinator; LT. J. KILE;
CAPTAIN R. GILBERTSON; LT. EASTWOOD;
J. MILLER, Asst Supt; FRANK R.
SERRANO, Hearing Officer; LT. D.
SHEPP ARD; A. BROADUS, Intense
Management Unit Administrator;
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CAPTAIN JOST; M. GALEMORE, Correctional
Counselor; C. MOONEY, Correctional
Counselor; S. GRAVES, Correctional
Counselor; C. WAGGONER, BHS; JAMIE
E. BREMAN, Office of Population
Administrator; JUDY GILMORE, Asst Sup
Correctional Rehabilitation Services;
CORRECTIONAL OFFICER PAYNE; I. SILVA,
Correctional Officer; LT. CLEAVER; and
JASON BELL, Asst Sup. of Security,
Defendants.
MOSMAN, Chief Judge.
Plaintiff, an inmate at the Two Rivers Correctional Institution ("TRCI"), brings this civil
rights action pursuant to 42 U.S.C. § 1983. Pursuant to an order entered by the Court this date,
Plaintiff was granted leave to proceed informa pauperis. However, for the reasons set forth below,
Plaintiff's complaint is dismissed.

BACKGROUND
Plaintiff's Complaint is a 100-page narrative statement of events commencing with the
alleged discovery on November 13, 2014, of black mold in Plaintiff's cell at TRCI. Shortly after
this, in December 2014, Plaintiff was transferred to the Snake River Correctional Institution
("SRCI"). Plaintiff names some 41 Defendants employed in various capacities at TRCI and SRCI,
and while he ostensibly alleges five separate claims for relief, the gravamen of all five is the same:
the lack of proper clean up of the mold, Plaintiff's attempts to obtain administrative remedies forthe
mold, Plaintiff's alleged health consequences from exposure to the mold, and Defendants alleged
efforts to block Plaintiff's grievances pertaining to the mold. Plaintiff sets forth in detail his attempts
to obtain administrative action, including verbatim recitation of the numerous grievances filed and

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the multitude of grievance responses and administrative appeals therefrom. Virtually all of the
actions complained of in the Complaint occurred more than two years prior to the filing of the
Complaint.

STANDARDS
Where a prisoner proceeding in forma pauperis files an action seeking redress from a
governmental entity or officer or employee of a governmental entity, the court shall dismiss the case
at any time if the court determines that:
(B)

the action ...
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such
relief.

28 U.S.C. §§ 1915(e)(2) and 1915A(b).
In order to state a claim, a plaintiffs complaint must contain sufficient factual allegations
which, when accepted as true, give rise to a plausible inference that the defendants violated the
plaintiffs constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.

Twombly, 550 U.S. 554, 556-57 (2007). "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Iqbal, 556 U.S. at 678; Moss v. US Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009).
As the Ninth Circuit has instructed however, courts must "continue to construe prose filings
liberally." Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). A "complaint [filed by a prose

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prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers."' Id.
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
Before dismissing a pro se civil rights complaint for failure to state a claim, this Court
supplies the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi v. Los Angeles
Police Dept., 839 F.2d 621, 623-24 (9th Cir. 1988); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir.
1987). A pro se litigant will be given leave to amend his or her complaint unless it is absolutely
clear that the deficiencies of the complaint cannot be cured by amendment. Karim-Panahi, 83 9 F .2d
at 623; Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).
DISCUSSION

I.

Procedural Deficiencies
A.

Federal Rule of Civil Procedure 8(a)

Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must contain "a short and plain
statement of the claim showing that the pleader is entitled to relief[.]" "Rule 8(a)'s simplified
pleading standard applies to all civil actions, with limited exceptions," none of which applies to §
1983 civil rights actions. Swierkiewicz v. Sorema NA., 534 U.S. 506, 512 (2002). The short and
plain statement "must simply give the defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests." Id.
Certainly, a violation of Rule 8 occurs when a pleading says too little. See, e.g., Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The Rule is also violated, however, when a pleading says too
much. See Cafasso, US. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011)
("we have never held - and we know of no authority supporting the proposition - that a pleading may
be of unlimited length and opacity); see also McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.
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1996) (affirming a dismissal under Rule 8, and recognizing that "[p ]rolix, confusing complaints such
as the ones plaintiffs filed in this case impose unfair burdens on litigants and judges).
Plaintiffs Complaint does not satisfy Rule S's "short and plain statement" standard. The
Complaint is replete with unnecessarily detailed factual descriptions of Plaintiffs experiences with
the prison grievance process, and the facts supporting Plaintiffs "claims" are scattered throughout
the 100-page narrative.

B.

Federal Rules of Civil Procedure 18(a) and (20)(a)(2)

Rule 18(a) allows a party asserting a claim for relief to join, either as independent or as
alternate claims, as many claims as the party has against the opposing party. However, a plaintiff
may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a),
20(a)(2). A plaintiff may bring a claim against multiple defendants so long as (1) the claim(s) arise
out of the same transaction or occurrence, or series of transactions and occurrences, and (2) there are
common questions oflaw or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351
(9th Cir. 1997).
Claims based on events that occurred at separate penal facilities are generally not related and
may not be brought in a single action. Bealer v. Kern Valley State Prison, Case No. 1: 16-cv-00367DAD-SKO (PC), 2017 WL 1272368, at *2 (E.D. Cal. Jan. 27, 2017). As noted, Plaintiff alleges
claims against employees of both TRCI and SRCI. The claims Plaintiff alleges against the SRCI
employee Defendants are, at best, only tangentially related to those alleged against the TRCI
employee Defendants. Accordingly, to the extent the claims fail to satisfy the requirements of Fed.
R. Civ. P. 18 and 20, they are subject to dismissal.

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II.

Substantive Deficiencies
As noted, the genesis of Plaintiff's Complaint is an event involving black mold in Plaintiff's

TRCI cell in November 2014. Plaintiff alleges claims related to his exposure to the mold, his alleged
medical symptoms and lack of treatment therefor, and the alleged retaliation against Plaintiff for
complaining about the mold.
Section 1983 contains no specific statute of limitations. As such, federal courts apply the
forum state's statute oflimitations for personal injury actions. Maldonado v. Harris, 370 F.3d 945,
954-55 (9th Cir. 2004). In Oregon, the applicable statute oflimitations for a 42 U.S.C. § 1983 action
is two years from the date thatthe cause of action accrues. Sain v. City ofBend, 309 F.3d 1134, 1139
(9th Cir. 2002); see also Or. Rev. Stat. § 12.110. The accrual date for a§ 1983 cause of action "is
a question of federal law that is not resolved by reference to state law." Wallace v. Kato, 549 U.S.
384, 388 (2007) (emphasis in original). "Under federal law, a claim accrues when the plaintiff
knows or has reason to know of the injury which is the basis of the cause of the action." Lukavsky
v. City and County ofSan Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (quotations and citation
omitted).
Plaintiff acknowledges that the majority of facts alleged in his Complaint detail events which
occurred outside the two-year limitation period. In an apparent attempt to avoid the statute of
limitations bar, however, Plaintiff alleges his claims are "continuing" in nature. The continuing
violation doctrine is an equitable doctrine designed "to prevent a defendant from using its earlier
illegal conduct to avoid liability for later illegal conduct of the same sort." 0 'Loghlin v. County of
Orange, 229 F.3d 871, 875 (9th Cir. 2000). To establish a continuing violation, a plaintiff must
show "a series ofrelated acts against a single individual ... that ... 'are related closely eriough to
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constitute a continuing violation."' Green v. Los Angeles County Superintendent ofSchools, 883
F.2d 14 72, 1480-81 (9th Cir. 1989) (quotations and citations omitted). The mere continuing impact
from a past violation is not actionable under the continuing violation doctrine. Knox v. Davis, 260
F.3d 1009, 1013 (9th Cir. 2001). The doctrine does not apply when a plaintiffs claims are based
on discrete acts. McCollum v. California Dep 't of Corrections, 647 F.3d 870, 877 (9th Cir. 2011).
Plaintiffs Complaint alleges separate claims: exposure to toxic mold, denial of medical care,
and retaliation for filing grievances. With respect to the exposure to mold, Plaintiff does not allege
any exposure after the initial occurrence in November 2014. Accordingly, any claim related to the
initial exposure is time-barred. Moreover, each instance of alleged retaliation for filing grievances
is a distinct act; the fact that the grievances related to the exposure or to individual denials of medical
care does not bring the claims within the continuing violation doctrine. Accordingly, Plaintiffs
claims based on facts that occurred outside the two-year limitation period are subject to dismissal.

CONCLUSION
Based on the foregoing, IT IS ORDERED that Plaintiffs Complaint is DISMISSED.
Plaintiff may file an Amended Complaint, curing the deficiencies noted above, within 30 days of the
date of this order. Plaintiff is advised that failure to file an Amended Complaint shall result in the
dismissal of this proceeding, with prejudice.
IT IS SO ORDERED.
DATED this

11._ day of June, 2016.

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