Vasquez v. Miller-Stout et al

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION 1915(g)Plaintiff Warned Re 28:USC 1915(g) for 11 Report and Recommendations - The court certifies any appeal of this dismissal would not be taken in good faith. Signed by Judge Lonny R. Suko. (SMP, Case Administrator)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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JUAN GOMEZ VASQUEZ,
Plaintiff,

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vs.
MAGGIE MILLER-STOUT,
HEWSON, RICHARSON, FOX,
HUGHES, ROLLINS, GREEN, and
STOCKWELL

NO. CV-13-114-JTR
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING ACTION
1915(g)

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Defendants.
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BEFORE THE COURT is Plaintiff’s undated First Amended Complaint, ECF No.
12, which the Court liberally construes as his Objections to the Report and
Recommendation to Dismiss Complaint filed on August 26, 2013, ECF No. 11. Plaintiff,
a prisoner currently housed at the Olympic Corrections Center in Forks, Washington,
had not previously amended his complaint as directed in the Order filed June 21, 2013,
ECF No. 9. He offers no explanation for this omission.
The Court has liberally reviewed Plaintiff’s submission in the light most favorable

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to Plaintiff and finds that it fails to cure the deficiencies of the prior complaint, or to

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present any reasonable objections to the Report and Recommendation to Dismiss.

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Plaintiff asserts that on an unspecified date, Defendant Richarson conducted a minor

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infraction hearing, where he allegedly informed Plaintiff that he would not “get off on a

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‘fucking technicality’ and that if (I) Plaintiff shit in his fucking pond (I) Plaintiff

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ORDER ADOPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION -- 1

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wouldn’t have nothing coming.” Although highly unprofessional and offensive, the

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alleged statements by Defendant Richarson, including a declaration that Plaintiff was “on

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[his] shit list,” are insufficient to state a plausible claim entitling Plaintiff to relief in this

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Court.

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Plaintiff states he was placed in administrative segregation the following day,

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pending an investigation for allegedly making threats to staff. Plaintiff asserts that the

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“documents making allegations against Plaintiff” did not provide adequate evidence of

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threats. He avers Defendants Fox and Stockwell directed him to write a kite to

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Defendant Rollins who was allegedly in charge of the investigation, as they claimed they

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had no information. Plaintiff contends he wrote to Defendant Maggie Miller-Stout, who

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allegedly failed to investigate the allegations. Plaintiff claims Defendant Green was

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aware of Defendant Richarson’s alleged misconduct, but refused to take action. Plaintiff

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claims he was transferred to another institution and was seriously assaulted by another

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inmate.

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An inmate has no constitutionally guaranteed protection from being wrongly
accused of conduct; rather, he has a constitutional right not to be deprived of a protected
liberty interest without due process. See Freeman v. Rideout, 808 F.2d 949, 951 (2d
Cir.1986), cert. denied, 485 U.S. 982 (1988). Any due process claim regarding
Plaintiff's placement in Administrative Segregation and the alleged failure to provide
him with "evidence" to justify his placement, however, must fail. An inmate has "no
liberty interest in freedom from state action taken within the sentence imposed," Sandin
v. Conner, 515 U.S. 472, 480 (1995) (quotation omitted), and the Ninth Circuit
explicitly has found that administrative segregation falls within the terms of confinement
ordinarily contemplated by a sentence. Toussaint v. McCarthy, 801 F.2d 1080, 1091-92

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(9th Cir. 1986).
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Again, the existence of an administrative remedy process does not create any
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ORDER ADOPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION -- 2

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substantive rights and mere dissatisfaction with the remedy process or its results cannot,

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without more, support a claim for relief for violation of a constitutional right, Ramirez v.

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Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). The failure of prison officials to respond to or process a particular grievance does

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not violate the Constitution. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); see

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also Baltoski v. Pretorius, 291 F.Supp.2d 807, 811 (N.D.Ind.2003) ("[t]he right to

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petition the government for redress of grievances, however, does not guarantee a

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favorable response, or indeed any response, from state officials"). Plaintiff's allegations

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are insufficient to state a claim against Defendants Miller-Stout, Hewson, Fox, Hughes,

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Rollins, Green or Stockwell for any alleged failure to investigate his claims.
Plaintiff indicates he was transferred to another institution and assaulted by

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another inmate. He presents no facts showing the transfer on an unspecified date was

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anything other than an administrative decision. See McKune v. Lile, 536 U.S. 24, 39

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(2002)("It is well settled that the decision where to house inmates is at the core of prison

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administrators' expertise."). To the extent Plaintiff may be attempting to assert he was

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afforded insufficient protection resulting in harm inflicted by another inmate, White v.

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Roper, 901 F.2d 1501, 1503-04 (9th Cir. 1990), he would need to present that claim in
the district in which it arose.
For the reasons set forth above, in the Report and Recommendation, and also in
the Order to Amend or Voluntarily Dismiss, ECF No. 9, IT IS ORDERED the Report
and Recommendation, ECF No. 11, is ADOPTED in its entirety, and this action is
DISMISSED with prejudice for failure to state a claim upon which relief may be
granted under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2).
Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who brings

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three or more civil actions or appeals which are dismissed as frivolous or for failure to
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state a claim will be precluded from bringing any other civil action or appeal in forma
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ORDER ADOPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION -- 3

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pauperis “unless the prisoner is under imminent danger of serious physical injury.” 28

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U.S.C. § 1915(g). Plaintiff is advised to read the new statutory provisions under 28

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U.S.C. § 1915. This dismissal of Plaintiff's complaint may count as one of the three

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dismissals allowed by 28 U.S.C. § 1915(g) and may adversely affect his ability to file

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future claims.

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IT IS SO ORDERED. The District Court Executive is directed to enter this

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Order, enter judgment, forward copies to Plaintiff at his last known address, and close

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the file. The District Court Executive is further directed to forward a copy of this Order

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to the Office of the Attorney General of Washington, Criminal Justice Division. The

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Court certifies any appeal of this dismissal would not be taken in good faith.
DATED this

17th

day of September, 2013.

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s/Lonny R. Suko
LONNY R. SUKO
UNITED STATES DISTRICT JUDGE

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ORDER ADOPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION -- 4