Womack v. Adams et al

Filing 31

ORDER ADOPTING 29 REPORT AND RECOMMENDATION AND DISMISSING-IN-PART FIRST AMENDED COMPLAINT. Amended Complaint Deadline set for 2/29/2016. Signed by Judge Salvador Mendoza, Jr. (PL, Case Administrator) **6 PAGES, PRINT ALL** (William Womack, Prisoner ID: 354117)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Feb 25, 2016
SEAN F. MCAVOY, CLERK

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON

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WILLIAM WOMACK,
NO: 4:15-cv-05095-SMJ

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Plaintiff,

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v.
CUS LANDAM. ADAMS, RICHARD
ZARAGUZA and JOHN or JANE
DOE

ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING-IN-PART FIRST
AMENDED COMPLAINT

Defendants.

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Before the Court is a Report and Recommendation to Dismiss the First
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Amended Complaint in part, ECF No. 29, and Plaintiff’s Objections to it, ECF No.
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30.
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On January 28, 2016, Magistrate Judge Mary K. Dimke had recommended
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the termination of Stephen Fleenor, Liza Rohrer, Steven Sinclair and the Washington
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State Department of Corrections as Defendants to this action as they were not named
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in the First Amended Complaint. In addition, Magistrate Judge Dimke advised
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Plaintiff of the deficiencies of his First Amended Complaint and granted him leave
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING FIRST AMENDED COMPLAINT IN PART -- 1

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to amend within thirty (30) days, to present a short and plain statement of certain

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claims, specifically a failure to protect claim against Defendant CUS Landam Adams

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(claim 1), and a First Amendment claim regarding a used book mail policy (claim

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5).

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Magistrate Judge Dimke found that Plaintiff’s allegations were insufficient to

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state claims upon which relief may be granted against the following Defendants:

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Deputy Director Scott Frakes (claim 1 - classification claim); C/O J. Strange, CUS

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Adams, CS Sundberg and Chris Bowman (false infraction/administrative

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segregation - claims 1 and 2); Counselor Buttice, C/O Dunleavy, CPM Ron Knight,

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and Farron (claim 3 - access to courts); T. Munns, A.S.C. Brent Caulk, Kevin

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Bovenkamp and B. Braid (claim 4 - Eighth Amendment/medical treatment/

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grievances); Associate Superintendent Carla Schettler and Roy Gonzalez (claim 5 -

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grievance responses to used books mail policy); Sgt Lesser, CUS R. Shumate and

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Superintendent Donald Holbrook (claim 6 - grievance responses to search); Vicari

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(claim 6 - initial allegedly retaliatory cell search on approximately February 14,

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2015); Sgt. Lesser (claim 6 - signatory to allegedly false infraction) and Lee Young

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(claim 6 - grievance response); B. Caulk, Shari Hall, and Allan Soper (claim 7 -

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policy regarding access to electronic devices claim and grievance responses); Shari

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Hall, Donald Holbrook, Roy Gonzalez and Robert Herzog (claim 8 - grievance

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responses); Chris Bowman, Lee Young, Daniel Lewis and Robert Herzog (claim 9 ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING FIRST AMENDED COMPLAINT IN PART -- 2

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PLRA initial partial filing fee/grievance responses/access to court). Furthermore,

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the Court found that Plaintiff’s conspiracy claim was too vague and conclusory to

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state a viable claim for relief and that his claims of negligence were not actionable

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under 42 U.S.C. §1983.

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In addition, Magistrate Judge Dimke found that Plaintiff had failed to exhaust

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his challenge to the Visual Body Cavity Search policy and its allegedly retaliatory

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application by Defendant Vicari on approximately May 20, 2015 (claim 6), prior to

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the submission of his First Amended Complaint. See Cano v. Taylor, 739 F.3d 1214,

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1220-21 (9th Cir. 2014) (a claim may be exhausted prior to filing suit or during suit,

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so long as exhaustion was completed before the first time the prisoner sought to

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include the claim in the suit). Also, the Court found that the addition of Plaintiff’s

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claims regarding limitations on items mailed to him, specifically, “musical curio

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instruments and art curios supplies,” would violate Fed. R. Civ. P. 18(a) as they were

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brought against newly added Defendants and were unrelated to any claims raised in

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the initial complaint. Plaintiff was advised that, although he would not be permitted

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to pursue these claims in the present action, he was free to file a separate action or

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separate actions.

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In his Objections, Mr. Womack asserts that the “commonality” which ought

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to allow him to join additional Defendants to this action is that Defendants

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“conspired” to adhere to policies and/or customs which allegedly violated his Eighth
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING FIRST AMENDED COMPLAINT IN PART -- 3

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and Fourteenth Amendment rights. Having failed to present facts in his First

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Amended Complaint from which an Eighth or Fourteenth Amendment violation

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could be inferred, the Court finds that Plaintiff’s vague assertions of a conspiracy

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and the fact that the only link among Defendants is that “they all acted within the

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color of state law representing DOC and they all stood in a special relationship with

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Mr. Womach,” is insufficient to state a viable claim under 42 U.S.C. § 1983.

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In his Objections, Plaintiff also asserts a “Fourteenth Amendment due process

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right to be free from arbitrary and capricious governmental conduct.” As stated by

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Magistrate Judge Dimke, Plaintiff’s claims regarding his placement in

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administrative segregation failed to state a procedural due process claim under

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Sandin v. Conner, 515 U.S. 472, 480 (1995); Toussaint v. McCarthy, 801 F.2d 1080,

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1091-92 (9th Cir. 1986). He also failed to show an actual injury to his access to the

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courts. See Lewis v. Casey, 518 U.S. 343, 351 (1996); Christopher v. Harbury, 536

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U.S. 403, 415 (2002); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009).

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“Where a particular amendment ‘provides an explicit textual source of

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constitutional protection’ against a particular sort of government behavior, ‘that

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Amendment, not the more generalized notion of “substantive due process,” must be

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the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994)

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(Rehnquist, C.J., for plurality), quoting Graham v. Connor, 490 U.S. 386, 395

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(1989). In other words, “if a constitutional claim is covered by a specific
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING FIRST AMENDED COMPLAINT IN PART -- 4

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constitutional provision, such as the Fourth or Eighth Amendment, the claim must

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be analyzed under the standard appropriate to that specific provision, not under the

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rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n. 7,

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(1997). Therefore, Plaintiff’s request for permission to amend to allege substantive

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due process claims is DENIED.

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To the extent Plaintiff asks the Court to reconsider his motion for appointment

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of counsel, his request is DENIED for the reasons set forth by Magistrate Judge

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Dimke, ECF No. 28.

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Accordingly, IT IS HEREBY ORDERED:
1. The Report and Recommendation, ECF No. 29, is ADOPTED in its
entirety.

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2. The First Amended Complaint, ECF No. 22, is dismissed in part with

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prejudice and in part without prejudice to filing new and separate action(s).

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3. The following Defendants shall be TERMINATED from this action:

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Stephen Fleenor, Liza Rohrer, Steven Sinclair, Washington State

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Department of Corrections, Scott Frakes, C/O J. Strange, CS Sundberg,

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Chris Bowman, Counselor Buttice, C/O Dunleavy, CPM Ron Knight,

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Farron 7409, T. Munns, A.S.C. Brent Caulk, Kevin Bovenkamp, B. Braid,

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Associate Superintendent Carla Schettler, Roy Gonzalez, Sgt. Lesser, CUS

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ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING FIRST AMENDED COMPLAINT IN PART -- 5

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Rodney Shumate, Superintendent Donald Holbrook, Thomas Vicari, Lee

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Young, Shari Hall, Allan Soper, Robert Herzog and Daniel Lewis.

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4. Plaintiff shall file a Second Amended Complaint on or before

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February 29, 2016, or seek additional time by formal motion to do so.

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IT IS SO ORDRED. The Clerk of Court shall enter this Order, forward a

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copy to Plaintiff, and set a case management deadline appropriately.
DATED this 25th day of February 2016.

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SALVADOR MENDOZA, JR.
United States District Judge

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ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING FIRST AMENDED COMPLAINT IN PART -- 6