Stacy v. Williams et al

Filing 19

ORDER - Plaintiff's second amended complaint (#18) is DISMISSED inpart as follows: (1) in its entirety as to defendants Justus,Maine, Wilson, O'Malley, and John Doe; (2) claims one and two shallproceed as retaliation claims against defendants Clark, Lilienthaland Hascall; and (3) claim three shall proceed as a retaliationclaim against Hascall and Clark, and a failure to protect claimagainst Clark, Lilienthal, Hascall and Powell. IT IS FURTHERORDERED that plaintiff's motion s for preliminary injunction (#17)and to appoint a special master (#16) are DENIED.The Clerk of the Court is DIRECTED to send a copy of thisorder, and a waiver of service packet to Chief Trial Counsel LorenCollins. If the remaining defendants refuse to waive service,plaintiff shall be notified and provided the necessary forms forservice by the U.S. Marshal's Service. Signed on 3/31/2010 by Judge Garr M. King. (mja)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON T. ANDREW STACY, Plaintiff, v. DEBRA HASCALL, et al., Defendants. KING, Judge Plaintiff, an inmate at Two Rivers Correctional Institution, brings this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the court is plaintiff's second amended complaint (#18), motion for preliminary injunction (#17), and motion to appoint special master (#16). For the reasons set forth below, CV. 09-1070-KI ORDER

plaintiff's amended complaint is dismissed in part, and plaintiff's motions for preliminary injunction and to appoint a special master are denied. ORDER TO DISMISS IN PART I. STANDARDS. This court must dismiss an action initiated by a prisoner seeking redress from a governmental entity or officer or employee,

1 -- ORDER

if the court determines that 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)(B) and 1915A(b);

Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000). II. DISCUSSION. A. In Claim One. his first claim for relief, plaintiff alleges that

defendant Hascall, the Law Librarian Coordinator at the Eastern Oregon Correctional Institution (EOCI), read materials related to this case submitted to her by plaintiff for photocopying. conferring Manager with Captain Hascall Lilienthal allegedly and Transitional that After

Services

Clark,

requested

Correctional

Officer Kautz seize the materials, but Kautz refused. Plaintiff further alleges that defendants Hascall, Clark, Lilienthal and Surber1 confiscated "books and evidentiary material for the

purpose[] of gaining an advantage in a Federal Suit in which they were named defendants" and in order to chill plaintiff's desire to interact with the court. Plaintiff concludes that the foregoing

conduct violated (1) his First and Fourteenth Amendment rights; Correctional Officer Surber is not listed as a defendant in either the caption or the listing of parties at page 3 of the amended complaint. Accordingly, the claim shall not proceed as to him. See Fed. R. Civ. P. 10(a).
1

2 -- ORDER

(2) 42 U.S.C. §§ 1983, 1985 and 1988; and (3) 18 U.S.C. §§ 241, 245 and 1512. As noted by the court in its previous order, plaintiff fails to state a claim for the denial of access to the courts because he fails to allege the he suffered actual prejudice as a result of defendants' conduct. Lewis v. Casey, 518 U.S. 343, 349-55 (1996);

Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended on denial of reh'g., 135 F.3d 1318 (9th Cir. 1998). In this regard,

the court notes that plaintiff's access claim is premised upon defendants' alleged interference in the preparation and copying of plaintiff's amended complaint in the instant proceeding. Because

plaintiff timely filed his amended complaint, he has failed to allege an actual injury to his right of access to the courts. To the extent that plaintiff's claim is premised upon

defendants' purported violation of 18 U.S.C. §§ 241, 245 and 1512, plaintiff fails to state a claim because those criminal statutes do not create a private right of action. Allen v. Gold Country

Casino, 464 F.3d 1044, 1048 (9th Cir. 2006), cert. denied, 549 U.S. 1231; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Reilly v. Concentrex, Inc., 1999 WL 1285883, *1 (D.Or. Dec. 23, 1999). Additionally, plaintiff has failed to allege facts to support a violation of 42 U.S.C. § 1985. See Portman v. County of Santa

Clara, 995 F.2d 898, 909 (9th Cir. 1993) (claim under § 1985(3) and the second clause of § 1985(2) must be premised upon racial or 3 -- ORDER

class-based

animus

demonstrating

an

invidious

discriminatory

motivation; claim under first clause of § 1985(2) requires proof of injury). Plaintiff is advised that 42 U.S.C. § 1988 simply

provides for the recovery of reasonable attorney fees. Accordingly, plaintiff's first claim for relief shall proceed against defendants Clark, Lilienthal, and Hascall only as a First Amendment retaliation claim under 42 U.S.C. § 1983. See Brodheim

v. Cry, 584 F.3d 1262, 1269-71 (9th Cir. 2009) (setting forth elements of retaliation claim). B. In Claim Two. his second claim for relief, plaintiff alleges that

defendants Hascall, Lilienthal, and Clark refused to photocopy plaintiff's amended complaint and filed multiple false misconduct reports against plaintiff in retaliation for his filing this action. Plaintiff alleges that the foregoing conduct constitutes

retaliation, denial of due process, denial of access to the courts, and violated multiple state and federal statutes. Finally,

plaintiff alleges that he filed a prison grievance complaining of the foregoing conduct which, despite its merit, was denied by Grievance Coordinator P. Maine. Plaintiff has failed to allege any facts to support a due process claim. To the extent that plaintiff is claiming that he

was denied procedural due process during a prison disciplinary proceeding, plaintiff has failed to state a claim in the absence of 4 -- ORDER

an allegation that he was subjected to an atypical significant hardship in relation to the ordinary incidents of prison life as a result of the disciplinary proceedings. U.S. 472, 478-84 (1995). Further, O.R.S. 162.415 and O.R.S. 163.275 do not purport to create a private right of action, and plaintiff has failed to state a claim for the denial of access to the courts, or for the violation of 42 U.S.C. §§ 1985 or 1988 for the reasons stated above. Accordingly, this claim shall proceed as a First Amendment See Sandin v. Conner, 515

claim for retaliation only against defendants Hascall, Lilienthal and Clark. C. In Claim Three. his third claim for relief, plaintiff alleges that

defendants Hascall and Clark generated a false misconduct report which motivated plaintiff to return to the disciplinary segregation unit (DSU). Plaintiff alleges that upon his return to DSU,

Lieutenant Powell and Investigator Connor,2 acting with Captain Lilienthal, told members of a "brutal prison gang" that plaintiff provided correctional officials confidential information which resulted in the lockdown of all gang members. Plaintiff alleges

that Powell and Connor acted as part of a conspiracy with Clark, Connor is not listed as a defendant in either the caption or the listing of parties at page 3 of the amended complaint. Accordingly, the claim shall not proceed as to him. See Fed. R. Civ. P. 10(a). 5 -- ORDER
2

Lilienthal, and Hascall, to force plaintiff to request protective custody thereby limiting his ability to litigate in federal court. Plaintiff alleges that as a result of defendants' conduct, he missed a filing deadline and lost access to all of his electronic case files. Plaintiff concludes that defendants violated his right of access to the courts, due process, and inflicted cruel and unusual punishment. Additionally, plaintiff cites to 18 U.S.C.

§§ 241, 245 and 1512, and 42 U.S.C. §§ 1985 and 1988. Because plaintiff does not allege that he suffered any actual prejudice to his existing federal litigation (i.e., dismissal due to the failure to meet a filing deadline), plaintiff has failed to allege a denial of access claim. Lewis, 418 U.S. at 351. With

regard to the alleged loss of his electronic files, plaintiff is advised that the constitutional right of meaningful access to the courts does not encompass sophisticated legal capabilities. Id. at 354. Plaintiff fails to state a due process claim, a claim for the

violation of 42 U.S.C. §§ 1985(2) or 1988, or a claim for violation of 18 U.S.C. §§ 241, 245, or 1512 for the reasons stated above. Accordingly, this claim shall proceed as a First Amendment

retaliation claim against defendants Hascall and Clark, and an Eighth Amendment failure to protect claim against defendants Clark, Lilienthal, Hascall, and Powell. In sum, plaintiff's amended complaint is dismissed in part, as set forth above, and the following defendants are dismissed from 6 -- ORDER

this proceeding due to plaintiff's failure to state a claim as to them: S. Justus, Parklyn Maine, Vicki Wilson, O'Malley, and John Taylor v. List, 880 F.2d 1040, 1045 (9th

Doe, lead mailroom clerk.

Cir. 1989) (liability under § 1983 arises only upon a showing of personal participation by the defendant in the alleged

constitutional deprivation). MOTION FOR PRELIMINARY INJUNCTION Plaintiff preliminary moves for a temporary a broad restraining range of order or

injunction

granting

protections

including providing plaintiff a minimum of 20 hours in the law library; granting him access to a table and stool (rather than a dorm living environment); granting him access to an electric typewriter and supplies; prohibiting library staff from imposing procedural hurdles not required by the court; prohibiting library staff from ridiculing inmates for their legal activities;

prohibiting Oregon Department of Corrections (ODOC) staff from transferring inmates to disrupt their litigation, opening incoming mail from lawyers or the court, seizing legal materials from inmates; requiring ODOC staff "to maintain a minimum standard for legal library services" and to provide services equally to all prisoners. Plaintiff's motion for injunctive relief is denied on the basis that plaintiff has failed to demonstrate a likelihood of success on the merits, he seeks mandatory injunctive relief which 7 -- ORDER

extends beyond the scope of his allegations, and he offers no basis to support the issuance of injunctive relief without notice to the parties. See Fed. R. Civ. P. 65(b)(1) (setting forth requirements

for issuing TRO without notice); 18 U.S.C. § 3626(a)(2) (providing that preliminary injunctive relief in civil action with respect to prison conditions must be narrowly drawn); Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008) (plaintiff seeking preliminary injunction must demonstrate that he is likely to succeed on the merits); Marlyn Nutraceuticals, Inc. V. Mucas Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (mandatory injunction, which goes beyond maintaining the status quo, is particularly disfavored). MOTION TO APPOINT SPECIAL MASTER Plaintiff moves the court to appoint a special master pursuant to Fed. R. Civ. P. 53 to assist plaintiff in the course of this litigation and overcome obstacles caused by defendants and/or plaintiff's incarceration. Plaintiff's motion is denied due to

plaintiff's failure to set forth a proper basis under Fed. R. Civ. P. 53 for such an appointment. See Fed. R. Civ. P. 53(a)(1) court

may appoint master to perform duties consented to by the parties; holding trial proceedings and make or recommend findings of fact; or address pretrial and and posttrial by matters an that cannot judge be or

effectively

timely

addressed

available

magistrate judge). 8 -- ORDER

CONCLUSION Plaintiff's second amended complaint (#18) is DISMISSED in part as follows: (1) in its entirety as to defendants Justus, Maine, Wilson, O'Malley, and John Doe; (2) claims one and two shall proceed as retaliation claims against defendants Clark, Lilienthal and Hascall; and (3) claim three shall proceed as a retaliation

claim against Hascall and Clark, and a failure to protect claim against Clark, Lilienthal, Hascall and Powell. IT IS FURTHER

ORDERED that plaintiff's motions for preliminary injunction (#17) and to appoint a special master (#16) are DENIED. The Clerk of the Court is DIRECTED to send a copy of this order, and a waiver of service packet to Chief Trial Counsel Loren Collins. If the remaining defendants refuse to waive service,

plaintiff shall be notified and provided the necessary forms for service by the U.S. Marshal's Service. IT IS SO ORDERED. DATED this 31st day of March, 2010.

/s/ Garr M. King Garr M. King United States District Judge

9 -- ORDER