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

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Jan 12, 2018
SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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JESS RICHARD SMITH,

No. 4:17-CV-5060-SMJ

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Plaintiff,
ORDER DISMISSING
COMPLAINT

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v.
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KEITH GOODENOUGH, SCOTT
BUTTICE and S. SUNDBERG,
Defendants.

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By Order filed July 25, 2017, Plaintiff’s complaint was screened pursuant to

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28 U.S.C. § 1915A(a), ECF No. 15. The Court determined Plaintiff’s claim that

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Defendant Goodenough issued a retaliatory infraction would be sufficient to require

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a response, but that Plaintiff’s associational right claim and his due process claim

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regarding the loss of privileges and a custody demotion were insufficient to state a

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constitutional violation. The Court granted Plaintiff the opportunity to amend his

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complaint or to voluntarily dismiss within sixty (60) days.

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Plaintiff, a prisoner at the Washington State Penitentiary, is proceeding pro

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se and in forma pauperis; Defendants have not been served. Plaintiff did not comply

ORDER DISMISSING COMPLAINT -- 1

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with the instruction to amend. Rather, Plaintiff filed an interlocutory appeal which

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was dismissed for lack of jurisdiction on August 17, 2017, ECF No. 24.

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Thereafter, Plaintiff sought relief from the Order to Amend or Voluntarily

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Dismiss by means of a motion under Fed. R. Civ. P. 60. ECF No. 25. That motion

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was denied on November 21, 2017, and Plaintiff was given additional time to amend

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or voluntarily dismiss. ECF No. 33. He did not do so and has filed nothing further

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in this action.

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In his complaint, Plaintiff stated that he was infracted on March 17, 2017, for

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allegedly harassing another inmate. Although Plaintiff was found “not guilty” of

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the infraction ten days later, Defendants Buttice and Sundberg did not restore

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Plaintiff’s television privileges or his custody level due to a “bad behavior report.”

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ECF No. 1-1 at 18. Plaintiff presented no facts from which the Court could infer

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the actions of Defendants Buttice and Sundberg were retaliatory. Without more, the

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mere failure to immediately restore privileges is not a Fourteenth Amendment

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violation under Sandin v. Conner, 515 U.S. 472 (1995).

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Although granted the opportunity to do so, Plaintiff did not amend his

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complaint to state a claim upon which relief may be granted against Defendants

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Buttice and Sundberg. Therefore, Plaintiff’s claims against Defendants Buttice and

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Sundberg will be dismissed pursuant to 28 U.S.C. § 1915A(b)(1).

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ORDER DISMISSING COMPLAINT -- 2

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The Court has weighed the factors required to be considered prior to

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dismissal, Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting five factors

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listed in Henderson v. Duncan, 779 F.2d 142, 1423 (9th Cir. 1986)), and finds that

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Plaintiff’s allegations against Defendant Goodenough should be dismissed under

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Fed. R. Civ. P. 41(b), for failure to comply with an Order of the Court.

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Accordingly, IT IS ORDERED:

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1. The complaint, ECF No. 14, is DISMISSED in part with prejudice for failure

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to state a claim upon which relief may be granted against Defendants Buttice

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and Sundberg under 28 U.S.C. § 1915A(b)(1).

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2. The complaint is DISMISSED in part without prejudice pursuant to Fed. R.
Civ. P. 41(b).

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3. Based on this Court’s understanding of Washington v. Los Angeles Cty.

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Sheriff's Dep't, 833 F.3d 1048 (9th Cir. 2016), this dismissal will NOT count

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as a “strike” pursuant to 28 U.S.C. § 1915(g).

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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 a copy to Plaintiff and close the file. The Court certifies

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

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DATED this 12th day of January 2018.
__________________________
SALVADOR MENDOZA, JR.
United States District Judge

ORDER DISMISSING COMPLAINT -- 3