Bolar v. Herzog et al

Filing 32

ORDER DISMISSING SECOND AMENDED COMPLAINT - Plaintiff Warned Re 28:USC 1915(g). Signed by Judge Stanley A Bastian. (LR, Case Administrator) **8 PAGES, PRINT ALL** (Matthew Bolar, Prisoner ID: 903205)

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

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Jan 09, 2018

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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MATTHEW FRANZINO BOLAR,

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Plaintiff,

NO: 4:16-cv-05129-SAB

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ORDER DISMISSING SECOND
AMENDED COMPLAINT

v.

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DAN PACHOLKE, ROBERT
HERZOG, ROY GONZALEZ,
DONALD HOLBROOK, SHERI
HALL, SERGEANT WALKER, J.
ROBERTS, and DOUGLAS CARR,

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28 U.S.C. § 1915(g)

Defendants.

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BEFORE THE COURT are Plaintiff’s Second Amended Complaint received

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on November 21, 2017, ECF No. 29, and a duplicate Second Amended Complaint,

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save for an additional declaration of service page, received on November 27, 2017,

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ECF No. 30. Plaintiff also submitted an affidavit prepared by his mother. ECF No.

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31. Liberally construing these documents in the light most favorable to Plaintiff,

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the Court finds that Plaintiff has failed to amend his complaint to state a claim

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upon which relief may be granted.

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//
ORDER DISMISSING SECOND AMENDED COMPLAINT -- 1

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Plaintiff asserts that he has owned a keyboard with a protective hard case

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since 2007, while in the custody of the Washington Department of Corrections

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(“DOC”). ECF No. 29 at 5. He indicates that he has twice, successfully litigated in

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state courts to retain his keyboard and hard case. Id. at 5-6, 7-8. He states that

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Defendant Douglas Carr, an Assistant Attorney General, represented the DOC

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and/or DOC facilities in both cases and allegedly made verbal assurances to

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Plaintiff in 2010 that he would intervene if Plaintiff had any further problems with

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his keyboard and hard case being taken away. Id. at 6, 8.

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Plaintiff states that he was transferred to the Washington State Penitentiary

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(“WSP”) in 2015. He indicates there was some confusion regarding the shipment

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of his keyboard and hard case and that he received a ninety day property

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disposition notice in October 2015, to send out, donate, or have his keyboard and

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hard case destroyed. ECF No. 29 at 8-9. Plaintiff indicates he was notified in

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November 2015 that his keyboard and hard case “could not be located” and /or had

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been “misplaced.” Id. at 9. Plaintiff made accusations that property room staff

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were attempting to steal his property. Id. at 10. Plaintiff asserts that on November

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12, 2015, he was notified that his keyboard was being sent to him, but without the

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hard case. Id. at 11.

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Plaintiff complains that when he requested the hard case to protect his

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keyboard from damage, Defendant Walker refused, stating that “policy” did not

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allow hard cases in the WSP. Plaintiff complains that “all WSP offenders have

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daily access to instrument hard cases in virtually every WSP Unit Music Room, the

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WSP visiting Room, and all the WSP Chapels.” ECF No. 29 at 11. Plaintiff does

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not allege that inmates are allowed to retain their personal hard cases at WSP.

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Plaintiff contends that Defendant Walker, through email correspondence,

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refused the offer of a Curio Officer to store Plaintiff’s hard case in the unit,

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Plaintiff’s suggestion that the hard case be stored in the main property room, and
ORDER DISMISSING SECOND AMENDED COMPLAINT -- 2

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Plaintiff’s request that he be allowed to exchange the hard case for a soft case with

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the approved vendor, so that he might not lose all the money he spent on the hard

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case. ECF No. 29 at 11-12. Plaintiff complains that Defendant Walker failed to

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notify Plaintiff “how to appeal, tort, and/or grieve his decision(s) in anyway.” Id. at

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12. This does not state a constitutional violation.

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Plaintiff complains that in November 2015, he learned that he had “allowed

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Defendant Walker to string Plaintiff along.” ECF No. 29 at 12. Plaintiff claims

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property room staff had led him to believe that he would be allowed to receive his

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keyboard and hard case when his “music permit” was issued. Id. at 12-13.

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Consequently, Plaintiff claims he missed a deadline to appeal the disposition of his

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property. ECF No. 29 at 12. Plaintiff does not allege that he attempted to appeal or

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that any appeal was actually dismissed as untimely.

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Plaintiff contends that Officers informed him in late November 2015 that his

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“only” remedy was to file tort claim, which he did. ECF No. 29 at 13. Plaintiff

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complains that on December 28, 2015, Defendant J. Roberts informed Plaintiff in a

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letter that there was no basis to grant his tort claim, and Plaintiff would be given

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until January 7, 2016 to choose the disposition of his property. Id. at 14-15.

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Plaintiff complains this letter was not mailed until January 14, 2016, a week after

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the deadline he had been given to voluntarily dispose of his hard case. Id. at 15.

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Plaintiff does not state the ultimate disposition of his hard case.

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Plaintiff speculates that between approximately September 29 and

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November 17, 2015, Defendant Sgt. Walker was informed of Plaintiff’s past

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successful litigation in retaining his instrument and hard case. ECF No. 29 at 13.

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Plaintiff seems to infer that the continued confiscation of his hard case was an act

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of retaliation by Defendant Sgt. Walker.

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He contends that between approximately November 17, 2015 and January
31, 2016, his mother contacted Defendant Carr, asking him to intervene. Id. at 14.
ORDER DISMISSING SECOND AMENDED COMPLAINT -- 3

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Plaintiff sates he was instructed to write to Defendant Carr, which he did. Id. He

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complains that he received no response. Id. He contends this breached an “oral

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and/or partial written past agreement” that Plaintiff would “be able to retain his

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keyboard and hard case at ‘any’ and/or ‘all’ WDOC institutions.” Id. Plaintiff

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makes no assertion that he sought to enforce a settlement agreement in his

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Thurston County action.

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Plaintiff speculates that Defendants Roberts, Walker, Carr, and Holbrook

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communicated between December 9, 2015, and January 15, 2016, regarding the

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disposition of Plaintiff’s hard case. ECF No. 29 at 15. He states that after

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receiving Defendant Robert’s letter regarding his tort claim, he went to the law

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library to conduct research. Id. He complains the Washington Practice, law books

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Plaintiff had relied upon to conduct previous litigation in state court, were not

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available. Id.

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Plaintiff asserts that he notified Defendant Hall in writing on or about

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February 9, 2016, of the failure to provide volumes of the Washington Practice

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Law Treatise Series. ECF No. 29 at 15-16. Plaintiff contends this interfered with

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his ability to litigate, in a non-frivolous manner, a conditions-of-confinement claim

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(i.e., tort, breach of contract, unlawful conversion and/or negligent conditions of

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confinement claims regarding the loss of his hard case). Id. at 16-17. Plaintiff

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asserts he presented his arguments to Defendant Holbrook as well. Id. He was told

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that no changes could be made at the local level. Id. at 18.

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Plaintiff states that in May 2016, he complained to Defendants Herzog and

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Gonzalez about the deficiencies in the law library precipitated by the LEXIS

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NEXIS contract. ECF No. 29 at 18. Plaintiff contends the Washington Criminal

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Practice in Courts of Limited Jurisdiction provided by LEXIS NEXIS is neither

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comparable, nor an adequate substitute for Washington Practice, volumes 2-4B, 9-

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10A, 14-15, 15A, and 16-16A.
ORDER DISMISSING SECOND AMENDED COMPLAINT -- 4

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Plaintiff indicates that in June 2016, Defendants Herzog and Gonzalez

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acknowledged Plaintiff’s concerns and advised him that they were “working to

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obtain the appropriate Washington Practice Series for ‘all’ WDPC law libraries.”

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Id. at 18. Apparently, this had not been accomplished to Plaintiff’s satisfaction

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when he submitted his initial complaint on October 3, 2016. ECF No. 1. He states

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that at the time he filed his Second Amended Complaint in November 2017, he did

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not have access to any of the volumes of the Washington Practice Treatise Series.

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ECF No. 29 at 18-19.

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Prisoners have a First Amendment right of meaningful access to the courts,

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which requires state prisons “to give prisoners a reasonably adequate opportunity

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to present claimed violations of fundamental constitutional rights to the courts.”

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Bounds v. Smith, 430 U.S. 817, 825 (1977). It does not require the provision of a

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particular series of law books. An inmate cannot make out a claim “simply by

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establishing that his prison’s law library or legal assistance program is sub-par in

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some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 350-51 (1996).

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Once again, Plaintiff has not stated the violation of a fundamental

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constitutional right. Rather, he asserts interference with his ability to file state court

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actions involving tort, breach of contract, unlawful conversion and/or negligent

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conditions-of-confinement claims regarding the loss of his hard case. ECF No. 29

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at 16-17. None of these are fundamental constitutional rights.

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To the extent Plaintiff is now arguing the deprivation of his property was

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authorized (i.e., done pursuant to policy), rather than an unauthorized theft or a

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confiscation done in the absence of a policy, he has not shown a violation of due

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process. See Turner v. Safley, 482 U.S. 78, 89 (1987) (authorized deprivation of

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property pursuant to prison regulations is valid if it is reasonably related to

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legitimate penological interests); Hudson v. Palmer, 468 U.S. 517, 533 (1984)

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ORDER DISMISSING SECOND AMENDED COMPLAINT -- 5

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(unauthorized negligent or intentional deprivation of property does not violate due

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process if meaningful post-deprivation remedy is available).

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Prison officials clearly have a substantial interest in limiting and monitoring

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the amount and type of personal property that an inmate may possess, especially in

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a high security facility. Due process is flexible, calling for the procedural

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protections each situation demands. Mathews v. Eldridge, 424 U.S. 319, 334

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(1976). Here, Plaintiff admits he received notice of the property deprivation in

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October 2015, and he had the right to appeal. Assertions that he was “strung along”

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and did not exercise his right to appeal, does not alter the fact that notice was

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provided.

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Plaintiff indicates he was “heard” in that he pursued a tort claim and made

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personal requests to the Superintendent. The fact his tort claim was unsuccessful

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(i.e., he was again advised that policy prevented his possession of a hard case) and

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he was directed to dispose of the property, even if the response was received after

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the date on which he was to elect the disposition of his property, does not alter the

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fact that he had received notice and an opportunity to be heard. Although Plaintiff

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was to have directed the disposition of his property in January 2016, it appears the

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property was still available for disposition when he spoke with the Superintendent

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in April 2016. ECF No. 29 at 19.

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To the extent Plaintiff is asserting the confiscation of his hard case was

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done in retaliation for his constitutionally protected rights, this would constitute an

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unauthorized deprivation. Under Washington law, prisoners may avail themselves

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of the DOC grievance process and/or file tort claims against the state for the

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unlawful loss or destruction of their personal property. See WASH. REV. CODE

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§ 72.02.045 (state and/or state officials may be liable for the negligent or

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intentional loss of inmate property) and WASH. REV. CODE § 4.92.090 (state liable

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for the tortuous conduct of state officials). Plaintiff need not be satisfied with the
ORDER DISMISSING SECOND AMENDED COMPLAINT -- 6

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remedy for it to be adequate. Plaintiff could seek redress in Washington state

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courts for his claim of lost property. Therefore, he has failed to state a claim upon

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which relief may be granted under 42 U.S.C. § 1983. Hudson, 468 U.S. at 534.

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Contrary to Plaintiff’s assertions, the Court cannot infer from the facts

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presented that Plaintiff was denied access to the courts causing actual injury to a

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non-frivolous constitutional claim. Lewis, 518 U.S. at 353-55. The United States

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Constitution does not extend to state property claims.

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Plaintiff has alleged in prior pleadings that he is in possession the documents
he previously filed in state courts which he can use as a template for another state

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court proceeding. He does not alleged that the time limit for bringing a claim in

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state court has expired.

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For the reasons set forth above and in the Order to Amend or Voluntarily

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Dismiss, ECF No. 18, IT IS ORDERED the Second Amended Complaint, both

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ECF No. 29 and 30, is DISMISSED for failure to state a claim upon which this

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Court can grant relief. 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1). In the absence of

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a federal constitutional claim, the Court declines Plaintiff’s invitation to exercise

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supplemental jurisdiction over any state law claims.

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This dismissal is without prejudice to Plaintiff pursuing a claim in state

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court, but may constitute a “strike” under 28 U.S.C. § 1915(g). Pursuant to 28

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U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who brings three or more civil

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actions or appeals which are dismissed as frivolous or for failure to state a claim

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will be precluded from bringing any other civil action or appeal in forma pauperis

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“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 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

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file future claims.
ORDER DISMISSING SECOND AMENDED COMPLAINT -- 7

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IT IS SO ORDERED. The Clerk of Court is directed to enter this Order,

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enter judgment, provide copies to Plaintiff at his last known address, and close the

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

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Office of the Attorney General of Washington, Corrections Division. The Court

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

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DATED this 9th day of December 2017.

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Stanley A. Bastian

United States District Judge

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ORDER DISMISSING SECOND AMENDED COMPLAINT -- 8