Smith v. Goodenough et al

Filing 34

ORDER DISMISSING COMPLAINT - The court certifies any appeal of this dismissal would not be taken in good faith. Case is CLOSED. Signed by Judge Salvador Mendoza, Jr. (LR, Case Administrator) **3 PAGES, PRINT ALL** (Jess Smith, Prisoner ID: 739951)

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1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Jan 12, 2018 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 JESS RICHARD SMITH, No. 4:17-CV-5060-SMJ 7 Plaintiff, ORDER DISMISSING COMPLAINT 8 v. 9 10 11 KEITH GOODENOUGH, SCOTT BUTTICE and S. SUNDBERG, Defendants. 12 By Order filed July 25, 2017, Plaintiff’s complaint was screened pursuant to 13 28 U.S.C. § 1915A(a), ECF No. 15. The Court determined Plaintiff’s claim that 14 Defendant Goodenough issued a retaliatory infraction would be sufficient to require 15 a response, but that Plaintiff’s associational right claim and his due process claim 16 regarding the loss of privileges and a custody demotion were insufficient to state a 17 constitutional violation. The Court granted Plaintiff the opportunity to amend his 18 complaint or to voluntarily dismiss within sixty (60) days. 19 Plaintiff, a prisoner at the Washington State Penitentiary, is proceeding pro 20 se and in forma pauperis; Defendants have not been served. Plaintiff did not comply ORDER DISMISSING COMPLAINT -- 1 1 with the instruction to amend. Rather, Plaintiff filed an interlocutory appeal which 2 was dismissed for lack of jurisdiction on August 17, 2017, ECF No. 24. 3 Thereafter, Plaintiff sought relief from the Order to Amend or Voluntarily 4 Dismiss by means of a motion under Fed. R. Civ. P. 60. ECF No. 25. That motion 5 was denied on November 21, 2017, and Plaintiff was given additional time to amend 6 or voluntarily dismiss. ECF No. 33. He did not do so and has filed nothing further 7 in this action. 8 In his complaint, Plaintiff stated that he was infracted on March 17, 2017, for 9 allegedly harassing another inmate. Although Plaintiff was found “not guilty” of 10 the infraction ten days later, Defendants Buttice and Sundberg did not restore 11 Plaintiff’s television privileges or his custody level due to a “bad behavior report.” 12 ECF No. 1-1 at 18. Plaintiff presented no facts from which the Court could infer 13 the actions of Defendants Buttice and Sundberg were retaliatory. Without more, the 14 mere failure to immediately restore privileges is not a Fourteenth Amendment 15 violation under Sandin v. Conner, 515 U.S. 472 (1995). 16 Although granted the opportunity to do so, Plaintiff did not amend his 17 complaint to state a claim upon which relief may be granted against Defendants 18 Buttice and Sundberg. Therefore, Plaintiff’s claims against Defendants Buttice and 19 Sundberg will be dismissed pursuant to 28 U.S.C. § 1915A(b)(1). 20 ORDER DISMISSING COMPLAINT -- 2 1 The Court has weighed the factors required to be considered prior to 2 dismissal, Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting five factors 3 listed in Henderson v. Duncan, 779 F.2d 142, 1423 (9th Cir. 1986)), and finds that 4 Plaintiff’s allegations against Defendant Goodenough should be dismissed under 5 Fed. R. Civ. P. 41(b), for failure to comply with an Order of the Court. 6 Accordingly, IT IS ORDERED: 7 1. The complaint, ECF No. 14, is DISMISSED in part with prejudice for failure 8 to state a claim upon which relief may be granted against Defendants Buttice 9 and Sundberg under 28 U.S.C. § 1915A(b)(1). 10 11 2. The complaint is DISMISSED in part without prejudice pursuant to Fed. R. Civ. P. 41(b). 12 3. Based on this Court’s understanding of Washington v. Los Angeles Cty. 13 Sheriff's Dep't, 833 F.3d 1048 (9th Cir. 2016), this dismissal will NOT count 14 as a “strike” pursuant to 28 U.S.C. § 1915(g). 15 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, 16 enter judgment, provide a copy to Plaintiff and close the file. The Court certifies 17 any appeal of this dismissal would not be taken in good faith. 18 19 20 DATED this 12th day of January 2018. __________________________ SALVADOR MENDOZA, JR. United States District Judge ORDER DISMISSING COMPLAINT -- 3

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