Stacy v. Williams et al

Filing 7

ORDER to proceed in forma pauperis and to Dismiss. Signed on 10/14/09 by Judge Garr M. King. (pvh)

IN THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON THADDEUS ANDREW STACY, Plaintiff, CV. 0 9 - 1 0 7 0 - K I ORDER TO PROCEED I N FORMA PAUPERIS AND TO D I S M I S S

v.
MAX WILLIAMS, e t a l . , Defendants. KING, J u d g e

I N FORMA P A U P E R I S / F I L I N G FEE

Plaintiff,

an

inmate

at

the

Eastern

Oregon

Correctional

I n s t i t u t i o n , brings t h i s c i v i l r i g h t s action pursuant t o 42 U.S.C.
§

1983.

P l a i n t i f f moves to proceed i n forma pauperis (#1).

An

examination of the application reveals that plaintiff is unable to afford the fees of this action. Accordingly, I T I S ORDERED t h a t

the provisional in forma pauperis status given the p l a i n t i f f i s confirmed. However, the Clerk of the Court shall not issue process

until further order of the court. Pursuant t o 28 U.S.C.
§

1915(b) (1), a prisoner proceeding in

forma pauperis i s required "to pay the f u l l f i l i n g fee of $350.00

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when f u n d s

exist.

Plaintiff has authorized the agency having

custody of him to c o l l e c t the f i l i n g fee from his prison t r u s t account when funds e x i s t . Accordingly, an i n i t i a l partial filing

fee of $39.16 i s assessed by this order. Upon paYment of the i n i t i a l p a r t i a l f i l i n g fee, plaintiff

s h a l l be obligated t o make monthly paYments of 20 percent of the preceding monthrs income credited to p l a i n t i f f r s t r u s t account. These paYments s h a l l be collected and forwarded by the agency having custody of plaintiff to the Clerk of the Court each time the amount in plaintiff I s trust account exceeds $10.00, until the

filing fee is paid in full.
ORDER TO D I S M I S S
I.

STANDARDS.

Plaintiff brings this civil rights action against state prison officials, alleging three claims for relief. This court must

dismiss an action i n i t i a t e d by a prisoner seeking redress from a governmental entity or officer or employee, i f the court determines t h a t the a c t i o n f a i l s t o s t a t e a claim f o r which r e l i e f may be granted. 2 8 U . S . C . § § 1 9 1 5 ( e ) ( 2 ) (B) a n d 1 9 1 5 A ( b ) i L o p e z v . S m i t h ,
(9~

203 F.3d 1122, 1126

Cir. 2000).

Dismissal for failure to state a claim is proper i f i t appears beyond doubt that p l a i n t i f f can prove no set of facts in support of his claims that would e n t i t l e him to r e l i e f . C o u n t y , 88 F . 3 d 8 0 4 , 806 (9 th C i r . 1996)
i

Ortez v. Washington

Cervantes v. City of San

2 - - ORDER TO PROCEED I N FORMA PAUPERIS AND TO D I S M I S S

Diego,

5 F. 3d 1273,

1274

( 9 th C i r .

1993).

Because plaintiff is

proceeding pro se,

I construe the pleadings liberally and afford Erickson v. Pardus, 551 Plaintiff shall be

the plaintiff the benefit of any doubt. U. S . 89 , 94 ( 2 007); Ort e z ,

8 8 F. 3 d a t 8 06 .

given leave to amend his complaint unless i t i s absolutely clear that the deficiencies of the complaint cannot be cured by

amendment.

Lopez, 203 F.3d a t 1127-31.

II.

DISCUSSION.
A. Claim One.

In his first claim for relief, plaintiff alleges that; [D]efendants [have] withheld available law library fine, access to typewriters, access to legal mail logs (outgoing), denying ancillary services including copies of case law unless Petitioner can pay 10¢ a page." I construe this claim to be one for the denial of access to the courts. because The claim i s dismissed, for f a i l u r e to s t a t e a claim, does not allege that he suffered actual

plaintiff

prejudice, to contemplated or existing litigation, as a result of defendants alleged conduct. Lewis v. Casey, 518 U.S. 343, 349-55

(1996) i Keenan v. Hall, 83 F.3d 1083,1094 (9th Cir. 1996), amended

o n d e n i a l o f r e h 1 g . , 1 3 5 F . 3 d 1 3 1 8 (9 th C i r . 1 9 9 8 ) . P l a i n t i f f a l s o a l l e g e s t h a t h i s F i r s t Amendment r i g h t s have been c h i l l e d by " v e i l e d t h r e a t s " by defendants Clark and Emory t h a t s t a f f were l i k e l y to become more adversarial toward p l a i n t i f f and

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make

his

time more

difficult

if

petitioner continued to

file

grievances. I t i s well s e t t l e d that verbal threats or abuse do not r i s e to the level of a constitutional violation. Oltarzewski v. Ruggiero,

830 F.2d 136, 139 (9th Cir. 1987}i Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. claim.
B.

1987).

Accordingly,

plaintiff has failed to state a

Claim Two. his second claim for relief, plaintiff alleges that

In

correctional o f f i c i a l s seized four legal books from his c e l l and l a t e r returned the books damaged. taken to "retaliate exercise
II

P l a i n t i f f alleges the books were collectively Fourteenth to chill

against of

petitioner First

petitioner's Protections.

both

and

Amendment

"(A] v i a b l e claim of F i r s t Amendment r e t a l i a t i o n e n t a i l s f i v e basic elements: (I)
An a s s e r t i o n t h a t

a

s t a t e a c t o r took some

adverse a c t i o n against an inmate (2) because of (3) t h a t p r i s o n e r ' s protected conduct, and t h a t such a c t i o n (4) chilled the inmate's

exercise of h i s F i r s t Amendment r i g h t s , and (5) the a c t i o n did not reasonably advance a legitimate correctional goal.
II

Rhodes v.

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). element, the plaintiff need not allege a Id. at 568.

Under the fourth

"total chilling of his

F i r s t Amendment r i g h t s " .

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Here,

plaintiff

fails

to

allege

that

he

engaged

in

constitutionally protected activity that resulted in retaliatory conduct, or that defendants' alleged conduct chilled the exercise of h i s F i r s t Amendment r i g h t s . As a l l e g e d , p l a i n t i f f a s s e r t s only

t h a t d e f e n d a n t s a c t e d w i t h t h e m o t i v e t o c h i l l h i s F i r s t Amendment rights. Accordingly, plaintiff fails to state a claim.

C.
In

Claim Three.
his third claim for relief, plaintiff alleges that opened is

defendant O'Malley "and other unknown mailroom workers" plaintiff's incoming mail from this court, even

though i t

c l e a r l y m a r k e d " o f f i c i a l m a i l IT a n d i s o n l y s u b j e c t t o i n s p e c t i o n i n plaintiff's presence. P l a i n t i f f alleges t h a t t h i s conduct was done

in retaliation for plaintiff filing grievances and in order to chill plaintiff's access to the courts. To the e x t e n t p l a i n t i f f i s a l l e g i n g t h a t h i s F i r s t Amendment rights were violated by the opening of mail from this court,

outside of his presence, plaintiff fails to state a claim because mail to and from the court, as contrasted to mail from p l a i n t i f f ' s attorney, is not confidential legal mail. To the extent plaintiff is Keenan, 83 F.3d a t 1094. a First Amendment

alleging

retaliation claim, failure to allege rights.

p l a i n t i f f f a i l s to state a claim due to his that As the alleged conduct plaintiff chilled his asserts only First that

Amendment

alleged,

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defendants a c t e d w i t h t h e m o t i v e t o c h i l l h i s rights.
CONCLUSION

F i r s t Amendment

Based on the

foregoing, is

plaintiff's and

provisional

in

forma
is

pauperis

status

CONFIRMED,

plaintiff's

complaint

DISMISSED f o r f a i l u r e t o s t a t e a c l a i m . plaintiff I s

I T I S FURTHER ORDERED t h a t (#6) i s DENIED

motion for a preliminary injunction

because plaintiff has failed to demonstrate a likelihood of success on the merits. Plaintiff's GRANTED. motion to file an amended complaint (#4) is

P l a i n t i f f may f i l e

an amended complaint,

curing the

deficiencies noted above, within 30 days of the date of t h i s order. P l a i n t i f f i s advised t h a t failure to f i l e an amended complaint shall result in the dismissal of this proceeding, with prejudice. P l a i n t i f f s h a l l pay the $350.00 f i l i n g fee when funds e x i s t . I T I S ORDERED t h a t t h e O r e g o n D e p a r t m e n t o f C o r r e c t i o n s (ODOC)

shall collect from p l a i n t i f f ' s t r u s t account an i n i t i a l p a r t i a l f i l i n g fee in the amount of $39.16 and s h a l l forward the amount to the Clerk of the Court. Said payment shall be clearly identified

by the name and number assigned t o t h i s a c t i o n . T h e ODOC s h a l l c o l l e c t f r o m p l a i n t i f f ' s p r i s o n t r u s t a c c o u n t the balance of the filing fee and shall forward payments to the Clerk of the Court in accordance with the formula set forth above.

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The p a y m e n t s s h a l l b e c l e a r l y i d e n t i f i e d b y t h e n a m e a n d n u m b e r assigned to this action. The Clerk of the Court i s directed to send a copy of t h i s order to the Oregon Department of Corrections, Central Trust Unit, 2575 Center S t r e e t , Salem, Oregon 97310. I T I S SO ORDERED. DATED t h i s

~day of

October, 2009.

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