Patton v. Thomas et al

Filing 76

OPINION AND ORDER: I GRANT defendants motion to dismiss 62 because plaintiffs Fourth Amended Complaint fails under Fed. R. Civ. P. 12(b)(6) and dismiss this case with prejudice. I therefore DENY as moot plaintiffs motion for discovery 60 , plaintiffs motion for summary judgment 72 , and defendants motion for a stay 75 . Signed on 5/17/12 by Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ANDREW PATTON,
Plaintiff,

No. 3:10-cv-01333-MO

v.

OPINION AND ORDER

J.E. THOMAS, et al.,
Defendants.

MOSMAN, J.,
Andrew Patton, an inmate at FCI-Sheridan, brings this civil rights action pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). All named defendants
moved to dismiss [62], arguing plaintiff’s Fourth Amended Complaint [59] fails under Fed. R.
Civ. P. 12(b)(6). Plaintiff filed a motion for discovery [60] and a motion for summary judgment
[72]. Defendants moved to stay briefing on plaintiff’s motion for summary judgment [75]. I
now grant defendants’ motion to dismiss [62] and deny the other motions as moot.
STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” To survive a Rule 12(b)(6)
motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
1 – OPINION AND ORDER

(quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard “asks
for more than a sheer possibility that a defendant has acted unlawfully.” Id. The court construes
pro se pleadings “liberally,” affording plaintiffs the “benefit of any doubt.” Hebbe v. Plier, 627
F.3d 338, 342 (9th Cir. 2010).
DISCUSSION
I.

Eighth Amendment Claim

Mr. Patton alleges that one named defendant, Officer Hiebenthal, called him derogatory
names—including a “snitch”—on October 13, 2009, and September 7, 2010, and that other
defendant officers took insufficient action in response. (Fourth Am. Compl. [59] 4–5). In my
Opinion and Order of September 29, 2011, I addressed the prior version of plaintiff’s complaint
and explained that, in order to state an Eighth Amendment claim for this alleged misconduct
under Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989), Mr. Patton must allege that
the name calling occurred in front of other inmates, Officer Hiebenthal intended to cause
retaliation by other inmates, and plaintiff actually received threats of injury as a result. (Opinion
& Order [54] 2–3). In response, Mr. Patton added the allegation that he was “harassed” by
inmates and “[t]here were plenty of threats by inmates.” (Fourth Am. Compl. [59] 5).1 That
conclusory allegation does not suffice. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”). While
Mr. Patton also added declarations from other inmates, they only bolster his allegation that
verbal abuse occurred. They do not state Mr. Patton was ever threatened or injured by other
inmates. Thus, while Mr. Patton alleged offensive and unprofessional conduct by Officer
Hiebenthal, he has not stated an Eighth Amendment claim.
1

He also alleges that a doctor at FCI-Sheridan can verify his claims, but does not explain why a doctor—but not Mr.
Patton himself—might be able to identify threats Mr. Patton received.

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II. First Amendment Retaliation Claim
Mr. Patton’s Fourth Amended Complaint alleges defendants unlawfully retaliated against
him for filing grievances and for seeking legal advice regarding those grievances.
Within the prison context, a viable claim of First Amendment retaliation entails
five basic elements: (1) An assertion that a state actor took some adverse action
against an inmate (2) because of (3) that prisoner’s protected conduct, and that
such action (4) chilled the inmate’s exercise of his First Amendment rights, and
(5) the action did not reasonably advance a legitimate correctional goal.
Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). I will address in turn the different
types of retaliatory conduct Mr. Patton alleges.2
1. Initial Opening and Reading of Eight Letters
Mr. Patton alleges he attempted to send eight letters to attorneys for assistance on
September 23, 2010. (Fourth Am. Compl. [59] 6–7). He alleges, without further detail, that they
were “clearly marked as legal mail” and addressed to attorneys. (Id. at 5). However, Mr. Patton
acknowledged that a ninth letter delivered the same day was addressed to a public defender, and
that letter was mailed. (Id. at Ex. C-3); see Swartz v. KPMG, LLP, 476 F.3d 756, 763 (9th Cir.
2007) (explaining that a district court ruling on a motion to dismiss may consider “exhibits
attached to the complaint”). And he acknowledged that he used automatically generated labels
for the eight letters, which failed to identify the recipients as “Attorneys at Law,” as required by
the prison mail policy. (Fourth Am. Compl. [59] Ex. C-3) (Mr. Patton acknowledging that he
failed “to write on the lable [sic] ‘Atty at Law’”); (Id. at Ex. C–4) (response to Mr. Patton’s
grievances explaining undisputed prison policy that special handling rules apply only to outgoing
mail that is marked as legal mail and includes a proper and adequately identified correspondent).

2

I address the different types of alleged misconduct separately because different officers were allegedly involved in
different conduct and because there are different, though overlapping, problems with Mr. Patton’s allegations about
different conduct. However, I note that, for reasons discussed below, all misconduct Mr. Patton alleges with
sufficient particularity fails to satisfy the fourth Rhodes element.

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Nevertheless, he says the letters were opened because he filed grievances, presumably
referring to his grievances arising out of the earlier incident with Officer Hiebenthal. (Id. at 6).
Specifically, he alleges he gave the letters to Officer Burkholz and four days later saw Officer
Blunk with them, who told him the letters were opened and read by himself and Officers
Robinson, Kallunki, and Burkholz. Officers Robinson and Blunk then told Mr. Patton that the
labeling had been improper.
Mr. Patton has not stated a claim based on this alleged conduct because he has not
plausibly alleged the second and third elements identified above. He has not alleged that
Officers Blunk, Robinson, or Burkholz knew of the incident with Officer Hiebenthal and does
not explain how, before opening the letters, they could have known the letters concerned
grievances arising out of that incident. And he does not dispute that the mail was improperly
labeled or that these three defendants therefore had a non-retaliatory reason to open the letters.
Nor has Mr. Patton adequately alleged that the officers’ conduct “chilled the inmate’s exercise of
his First Amendment rights.” Rhodes, 408 F.3d at 567. He nowhere alleges that his own
willingness or ability to exercise First Amendment rights was hindered or diminished. He seems
to argue that this element is satisfied because the officers’ conduct would have chilled an
ordinary inmate. (See Pl.’s Br. in Support of Mtn. for Summ. Judg. [73] 3). Plaintiff is correct
that he may satisfy the fourth Rhodes element by alleging conduct that “would chill or silence a
person of ordinary firmness from future First Amendment activities.” Id. at 568.3 However, the
opening and reading of one batch of mislabeled mail is not conduct that would chill or silence a
person of ordinary firmness, especially since plaintiff acknowledges that one properly labeled
letter was indeed mailed without any such intrusion.
3

Additionally, allegations that the prisoner suffered harm as a result of the adverse state action can satisfy the fourth
element “since harm that is more than minimal will almost always have a chilling effect.” Rhodes, 408 F.3d at 567
n.11. However, Mr. Patton alleges no harm.

4 – OPINION AND ORDER

2. Refusal to Send Letters and Possible Destruction of Letters
Mr. Patton next alleges Officer Robinson told him that Officer Kallunki refused to mail
the eight letters because they involved grievances against Officer Hiebenthal and because Mr.
Patton filed grievances against Officer Kallunki for opening and reading mail. (Fourth Am.
Compl. [59] 6–7). He alleges that, several days later, Officer Burkholz said Officer Kallunki had
refused to send the letters. (Id. at 7). He then alleges, without further detail, that Officers
Kallunki, Robinson, Blunk, and Burkholz “confiscated and/or destroyed” the letters. (Id.).
While this alleged misconduct is alarming if true, it too fails to satisfy the fourth Rhodes element.
An allegation that a prison official refused to send letters seeking legal advice concerning
grievances, and then destroyed them, might generally satisfy the fourth Rhodes element for Rule
12(b)(6) purposes. It is true that such conduct involves none of the more typical allegations of
“chilling” behavior, such as explicit threats or physical harm to the inmate or the inmate’s
property, and does not impact the conditions or duration of confinement. See Rhodes, 408 F.3d
at 568 (retaliation claim stated based on alleged retaliatory confiscation and destruction of
property, initiation of a prison transfer, and assault in retaliation for filing grievances); Austin v.
Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (retaliation claim stated based on retaliatory
placement in administrative segregation for filing grievances); Rizzo v. Dawson, 778 F.2d 527,
530–32 (9th Cir. 1985) (retaliation claim stated based on retaliatory reassignment out of
vocational class and transfer to a different prison). It also leaves the possibility of future
grievances and requests for legal advice open. Nevertheless, an ordinary inmate could believe
that future attempts at obtaining assistance would not see the light of day, and might therefore
hesitate to make those requests or file grievances in the first place.

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However, the allegations here include several important qualifications. Mr. Patton has
not alleged, in the Ninth Circuit’s words, that this alleged retaliatory misconduct “chilled the
inmate’s exercise of his First Amendment rights.” Rhodes, 408 F.3d at 567 (emphasis added).
While the alleged impact on Mr. Patton is not the controlling issue—since I must focus on an
inmate of “ordinary firmness”—the lack of any such impact sheds some light on what an
ordinary inmate would experience. Nor has he alleged that any other letter or batch of letters
were ever mistreated or destroyed. Additionally, as discussed above, the eight letters were not
labeled properly and plaintiff takes no issue with the handling of the one properly labeled letter.
An inmate of “ordinary firmness” who learned that one group of mislabeled letters were
not mailed, and might have been destroyed, would not throw up his hands and conclude that, in
the future, properly labeled letters seeking legal advice would not be sent, especially if one
properly labeled piece of mail in the group was in fact mailed. The ordinary inmate would not,
therefore, be deterred from sending such letters or filing grievances. See Martin v. Loadholt, 10cv-00156-LJO-MJS, 2012 WL 525687, at *5 (E.D. Cal. Feb. 16, 2012) (allegation that officials
required plaintiff to pick up daily medication at pill window failed to satisfy fourth Rhodes
element); Rowe v. Castro, 07-cv-01150-GSA-PC, 2011 WL 2112466, at *7 (E.D. Cal. May 26,
2011) (allegation that officials improperly read and delayed delivery of confidential mail in
retaliation for prisoner’s prior grievances failed where it did not affect inmate’s ability or
willingness to pursue protected First Amendment activities). Accordingly, Mr. Patton has not
stated a plausible retaliation claim based on this alleged misconduct.
3. Other Alleged Misconduct
Mr. Patton also alleges Officers Robinson, Blunk, Burkholz, and Kallunki refused to
provide him with postage to mail unidentified grievance forms and legal mail in October of 2010

6 – OPINION AND ORDER

and refused to sign his in forma pauperis papers for this lawsuit. Lastly, he asserts that two
incident reports were written against him by unidentified individuals in July 2010, which resulted
in Mr. Patton being placed in solitary confinement. Despite my previous instruction that Mr.
Patton flesh out these bare allegations, he has not done so. As pled, they fail to meet any of the
Rhodes elements under the basic pleading standard. There are still no allegations that the
unidentified incident reports from unidentified officials had anything to do with grievances Mr.
Patton filed. And the other allegations treat all officers as one and do not identify when or how
any officer refused to provide Mr. Patton with postage or refused to sign his in forma pauperis
papers.
III. Leave to Amend
Leave to amend should be granted liberally. Eldridge v. Block, 832 F.2d 1132, 1135 (9th
Cir. 1987). However, a court “may deny leave to amend due to . . . ‘repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [and] futility of amendment.’” Leadsinger, Inc. v. BMG Music
Pub., 512 F.3d 522, 532 (9th Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); see
also Zucco Partners, LLC, v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (explaining
that where “the plaintiff has previously been granted leave to amend and has subsequently failed
to add the requisite particularity to its claims, the district court’s discretion to deny leave to
amend is particularly broad”) (quotation and alteration omitted).
Mr. Patton has now filed four versions of his complaint and had the benefit of my prior
opinion, which identified the elements he needed to allege and identified the same deficiencies
discussed above. Yet his most recent complaint is substantively the same as the prior one. I
conclude leave to amend would be futile and inappropriate under the circumstances. See

7 – OPINION AND ORDER

Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993) (dismissal with prejudice was proper “in
light of [plaintiff’s] repeated failure to cure the deficiencies in his pleadings”).
CONCLUSION
I GRANT defendants’ motion to dismiss [62] because plaintiff’s Fourth Amended
Complaint fails under Fed. R. Civ. P. 12(b)(6) and dismiss this case with prejudice. I therefore
DENY as moot plaintiff’s motion for discovery [60], plaintiff’s motion for summary judgment
[72], and defendants’ motion for a stay [75].
IT IS SO ORDERED.
DATED this

17th

day of May, 2012.

/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Court

8 – OPINION AND ORDER

.