Brown v. Morgan et al

Filing 10

SECOND ORDER TO SHOW CAUSE by Magistrate Judge Karen L Strombom. The Court DECLINES to serve the 8 amended complaint. However, the Court again grants plaintiff permission to submit a second amended complaint to attempt to cure the above-mentioned deficiencies by April 28, 2017. (Attachments: # 1 Second Amended Complaint form, # 2 Second Amended Defendant Service form) **19 PAGES, PRINT ALL** (Gregory Brown, Prisoner ID: 281829) (GMR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 GREGORY TYREE BROWN, 9 No. C16-5975 RBL-KLS Plaintiff, 10 11 v. SECOND ORDER TO SHOW CAUSE RICHARD MORGAN, et al., 12 Defendants. 13 On December 13, 2016, the Court declined to serve pro se plaintiff Gregory Tyree 14 15 Brown’s civil rights complaint (Dkt. 4) because of several noted deficiencies. Dkt. 5. However, 16 the Court granted plaintiff leave to file an amended complaint, and an extension of time within 17 which to do so, to cure the deficiencies or to show cause why his complaint should not be 18 dismissed. Dkt. 7. Plaintiff’s 84 page amended complaint, naming 58 defendants and 19 20 “John/Jane Does I through CI”, was filed on February 13, 2017. The amended complaint is also deficient and many of the claims asserted appear to be untimely. Plaintiff will be afforded one 21 22 23 24 25 26 last opportunity to cure the deficiencies noted herein. He may file a second amended complaint by April 28, 2017. DISCUSSION The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). SECOND ORDER TO SHOW CAUSE - 1 1 The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails 2 to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant 3 who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). The fact that a prisoner pays 4 the filing fee is no barrier to a court, when dismissing the case as frivolous, directing that the 5 dismissal count as a strike under 28 U.S.C. § 1915(g). Belanus v. Clark, 796 F.3d 1021, 1028 6 7 8 9 (9th Cir. 2015). In his original complaint, plaintiff named 18 defendants but included no factual allegations against any of them. His complaint contained only vague and conclusory allegations 10 that all of the defendants conspired to institute policies of harassment and retaliation in 11 the handling of inmate funds and legal supplies, disciplinary sanctions and proceedings, legal 12 mail, grievances, and limiting access to photocopying and the law library. Dkt. 4. The Court 13 advised plaintiff that, if he intended to pursue this lawsuit, he must allege facts showing who 14 15 violated his rights, when they violated his rights, and how this violation caused him harm. Dkt. 16 5. He was also advised that Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires a 17 complaint to include a short and plain statement of the claim showing that the pleader is entitled 18 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 19 20 which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). In addition, to avoid dismissal for failure to state a claim, plaintiff must 21 22 23 include more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. A claim upon which the court 24 can grant relief has facial plausibility; in other words, a claim has “facial plausibility when the 25 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 26 defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. SECOND ORDER TO SHOW CAUSE - 2 Plaintiff’s amended complaint is not a plain and short statement of his claims. Instead it 1 2 is 85 pages long and names 58 defendants in addition to “John/Jane Does I thru CI.” Dkt. 8. 3 Generally summarized, plaintiff appears to assert claims relating to, inter alia: (1) improper 4 handling of grievances; (2) lack of due process for infractions and/or disciplinary hearings; (3) 5 conspiracy; (4) retaliation; (5) mishandling of legal mail; (6) violation of religious freedoms; and 6 7 (7) interference with access to courts. In many instances, plaintiff’s allegations are confusing and he fails to allege facts from 8 9 which it may be inferred that any of the named defendants violated his constitutional rights. 10 Instead, he lumps together all “defendants” and claims they have violated his rights. The Court 11 cannot reasonably discharge its screening responsibility under § 1915A until plaintiff complies 12 with the pleading requirements set forth in Rule 8. In this regard, plaintiff should list his factual 13 allegations according to the claims that he is asserting rather than lumping all of his factual 14 15 16 17 18 19 20 allegations together in simple chronological order regardless of their relation to a particular claim. Plaintiff is advised that in order to state a claim under 42 U.S.C. § 1983, a complaint must establish “the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 does not provide a cause of 21 22 23 action for violations of state law. See Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001). Thus, plaintiff must clarify whether he has any basis for pursuing a claim under § 1983. In the second 24 amended complaint, plaintiff must write out short, plain statements telling the Court: (1) the 25 constitutional right plaintiff believes was violated; (2) the name of the person who violated the 26 right; (3) exactly what that person did or failed to do; (4) how the action or inaction of that SECOND ORDER TO SHOW CAUSE - 3 1 person is connected to the violation of plaintiff’s constitutional rights; and (5) what specific 2 injury plaintiff suffered because of that person’s conduct. See Rizzo v. Goode, 423 U.S. 362, 3 371–72 (1976). 4 If the person named as a defendant was a supervisory official, plaintiff must either state 5 that the defendant personally participated in the constitutional deprivation (and tell the Court the 6 7 five things listed above), or plaintiff must state, if he can do so in good faith, that the defendant 8 was aware of the similar widespread abuses, but with deliberate indifference to plaintiff’s 9 constitutional rights, failed to take action to prevent further harm to plaintiff and also state facts 10 to support this claim. See Monell v. New York City Department of Social Services, 436 U.S. 658, 11 691 (1978). 12 Plaintiff must repeat this process for each person he names as a defendant, including any 13 “John Doe” and “Jane Doe” defendants. If plaintiff fails to affirmatively link the conduct of 14 15 each named defendant with the specific injury suffered by plaintiff, the claim against that 16 defendant will be dismissed for failure to state a claim. Conclusory allegations that a defendant 17 or a group of defendants have violated a constitutional right are not acceptable and will be 18 dismissed. 19 20 The amended complaint should be no longer than 20 pages. Plaintiff should state all of his allegations relating to each claim under separate headings and within those headings should 21 22 23 24 describe exactly what happened, who was involved, and how their involvement caused him harm. If he fails to do so, the Court will recommend dismissal of his complaint. In the following paragraphs, some of the legal standards that may apply to plaintiff’s 25 numerous claims are set forth. Plaintiff should carefully review the standards and amend only 26 those claims that he believes, in good faith, are cognizable. SECOND ORDER TO SHOW CAUSE - 4 1 2 3 4 A. Statute of Limitations At the outset, the Court notes that many of plaintiff’s claims appear to be untimely and barred by the statute of limitations. For example, in paragraph 54, plaintiff refers to over a “thousand” grievances, many of which occurred prior to November 21, 2013, which would not 5 be considered timely filed. In paragraphs 101 through 127, plaintiff complains of conduct at the 6 7 Washington State Penitentiary that occurred between the years 1983 and 1985. In paragraphs 8 128 through 161, plaintiff complains of conduct that occurred between the years 1992 and 1998 9 at the Clallam Bay Corrections Center. In paragraphs 162 through 170, plaintiff complains that 10 between the years 1986 and 2000, “prison and DOC officials have abused his property 11 repeatedly and continuously that the total number of constitutional violations are too numerous 12 to litigate.” In paragraphs 171 through 187, plaintiff complains of conduct that occurred between 13 the years 2000 and 2011 at the Washington State Reformatory. In paragraphs 188 through 196, 14 15 plaintiff complains of conduct that occurred between the years 2002 and 2011 at the Washington 16 State Penitentiary. In paragraphs 197 through 199, plaintiff complains of conduct that occurred 17 on June 10, 2012 at the Airway Heights Corrections Center. 18 19 20 The Civil Rights Act, 42 U.S.C. § 1983, contains no statute of limitations. As such, the statute of limitations from the state cause of action most like a civil rights act is used. In Washington, a plaintiff has three years to file an action. Rose v. Rinaldi, 654 F.2d 546 (9th 21 22 23 Cir.1981); RCW 4.16.080(2). Federal law determines when a civil rights claim accrues. Tworivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999). A claim accrues when the plaintiff 24 knows or has reason to know of the injury which is the basis of the action. Kimes v. Stone, 84 25 F.3d 1121, 1128 (9th Cir.1996); see also Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.2001), 26 quoting Tworivers, 174 F.3d at 992. The proper focus is upon the time of the discriminatory SECOND ORDER TO SHOW CAUSE - 5 1 acts, not upon the time at which the consequences of the acts became most painful. Abramson v. 2 Univ. of Hawaii, 594 F.2d 202, 209 (9th Cir.1979). 3 4 Plaintiff filed this action on November 21, 2016. Therefore, claims which accrued before November 21, 2013 are time-barred. It is clear from the face of plaintiff’s amended complaint 5 that he knew or had reason to know of the alleged injuries which form the basis of the claims 6 7 identified in the preceding paragraph well before November 21, 2013, when the statute of 8 limitations for pursuing any Section 1983 action as to these claims expired. Plaintiff must show 9 cause why these claims should not be dismissed. 10 11 12 B. Due Process – Disciplinary Process In Section B of his amended complaint, plaintiff complains generally, in a very broad and conclusory fashion, that DOC’s disciplinary process is abusive and unfair. Dkt. 8, pp. 14-16. He 13 states that he has been “found guilty of more than one hundred of these abusive infractions.” 14 15 Dkt. 8, p. 15. However, plaintiff fails to provide any factual allegations relating to these 16 infractions and fails to allege any facts from which it may be inferred that any of the named 17 defendants violated his constitutional rights. To proceed on this claim, plaintiff must allege who 18 was involved, what they did, and how this conduct violated his constitutional rights. 19 20 Under the Fourteenth Amendment's Due Process Clause, a prisoner is entitled to certain due process protections when he is charged with a disciplinary violation. Wolff v. McDonnell, 21 22 23 418 U.S. 539, 564–71 (1974) (including written notice, at least 24 hour notice; written statement of evidence and reasons for disciplinary hearing; right to call witnesses and present documentary 24 evidence). However, the procedural protections afforded by the Due Process Clause adhere only 25 when the disciplinary action implicates a protected liberty interest in some “unexpected manner” 26 SECOND ORDER TO SHOW CAUSE - 6 1 or imposes an “atypical and significant hardship on the inmate in relation to the ordinary 2 incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995). 3 4 If plaintiff intends to pursue any claims relating to his disciplinary hearings, he should include all of his factual allegations with regard to the denial of due process as to any infraction 5 or hearing against specifically named defendants in one section of his amended complaint. In 6 7 addition, plaintiff’s due process claims are also subject to the three year statute of limitations 8 described above. Therefore, claims which accrued before November 21, 2013 are time-barred. 9 C. 10 11 12 Conspiracy A civil conspiracy is a combination of two or more persons who, by some concerted action, intend to accomplish some unlawful objective for the purpose of harming another which results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir.1999). To prove 13 a civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose 14 15 or common design and understanding, or a meeting of the minds in an unlawful agreement. To 16 be liable, each participant in the conspiracy need not know the exact details of the plan, but each 17 participant must at least share the common objective of the conspiracy. Id. A defendant's 18 knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and 19 20 from evidence of the defendant's actions. Id. at 856–57. Conclusory allegations of conspiracy are not enough to support a § 1983 conspiracy claim. Burns v. County of King, 883 F.2d 819, 21 22 23 821 (9th Cir.1989) (per curiam). Moreover, “[c]onspiracy is not itself a constitutional tort under § 1983,” and it “does not 24 enlarge the nature of the claims asserted by the plaintiff, as there must always be an underlying 25 constitutional violation.” Lacey v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012) (en banc); 26 Cassettari v. Nev. Cnty., 824 F.2d 735, 739 (9th Cir.1987) (“The insufficiency of these SECOND ORDER TO SHOW CAUSE - 7 1 allegations to support a section 1983 violation precludes a conspiracy claim predicated upon the 2 same allegations.”). 3 4 If plaintiff intends to pursue this claim he should include all of his factual allegations of the conspiracy against specifically named defendants in one section of his amended complaint 5 and he must identify the constitutional violation he attributes to the alleged conspiracy. 6 7 8 9 D. Retaliation “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 10 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 11 exercise of his First Amendment rights, and (5) the action did not reasonably advance a 12 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.2005) 13 (footnote omitted). 14 15 The prisoner must show that the type of activity in which he was engaged was 16 constitutionally protected, that the protected conduct was a substantial or motivating factor for 17 the alleged retaliatory action, and that the retaliatory action advanced no legitimate penological 18 interest. Hines v. Gomez, 108 F.3d 265, 267–68 (9th Cir.1997) (inferring retaliatory motive from 19 20 circumstantial evidence). Retaliatory motive may be shown by the timing of the allegedlyretaliatory act and other circumstantial evidence, as well as direct evidence. Bruce v. Ylst, 351 21 22 23 F.3d 1283, 1288–89 (9th Cir.2003). However, mere speculation that defendants acted out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir.2014) (citing cases) 24 (affirming grant of summary judgment where there was no evidence that defendants knew about 25 plaintiff's prior lawsuit, or that defendants' disparaging remarks were made in reference to prior 26 lawsuit). SECOND ORDER TO SHOW CAUSE - 8 1 2 3 4 To properly state a claim of retaliation, plaintiff must name the individuals involved in the retaliation and identify the constitutional activity in which he was engaged, he must also describe what retaliatory action each individual took, explain why the action did not advance 5 legitimate penological goals, and describe how his First Amendment rights were actually chilled 6 7 by the retaliatory action. If plaintiff intends to pursue any retaliation claim, he should include all of his factual 8 9 allegations against specifically named defendants relating to his claim or claims of retaliation in 10 one section of his amended complaint. 11 E. 12 Handling of Grievances Prisoners have no due process right to the handling of grievances in any particular 13 manner. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Plaintiff refers to various 14 15 grievances throughout his amended complaint. However, it is unclear what claim he is 16 attempting to assert with regard to these grievances. Certainly, prisoners cannot be retaliated 17 against for filing grievances or pursuing civil litigation. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th 18 Cir. 2003). If plaintiff intends to pursue a claim of retaliation, he should refer to the previous 19 20 section. F. Legal Mail 21 22 23 Specific restrictions on prisoner legal mail have been approved by the Supreme Court and Ninth Circuit. For example, prison officials may not review outgoing legal mail for legal 24 sufficiency before sending the mail to the court. See Ex Parte Hull, 312 U.S. 546, 549 (1941). 25 Prison officials may, however, require mail from attorneys be identified as such and open such 26 mail in the presence of the prisoner for visual inspection. See Wolff v. McDonnell, 418 U.S. 539, SECOND ORDER TO SHOW CAUSE - 9 1 576-77 (1974); Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981). Incoming mail from 2 from the prisoner's attorney is not considered “legal mail”, but incoming mail from the courts is 3 “legal mail”. See Keenan, 83 F.3d at 1094. 4 Whether legal mail may be opened outside the inmate's presence, however, is an open 5 question in the Ninth Circuit. In Sherman, the Ninth Circuit found “[t]he law in at least three 6 7 circuits is that mail from attorneys may not be opened out of the presence of the addressee.” 656 8 F.2d at 528. The Ninth Circuit stated it has “not yet decided the issue.” Id. However, the Ninth 9 Circuit has held an isolated instance or occasional opening of legal mail outside an inmate's 10 presence does not rise to the level of a constitutional violation. See Stevenson v. Koskey, 877 11 F.2d 1435, 1441 (9th Cir. 1989). 12 If plaintiff intends to pursue this claim he should include all of his factual allegations 13 against specifically named defendants relating to his legal mail claim in one section of his 14 15 16 17 18 19 20 amended complaint. G. Violation of Freedom of Religion In order to implicate the Free Exercise Clause, the inmate’s belief must be religious in nature and sincerely held. See Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (internal quotations and citation omitted); Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (adopting the “sincerity test” set forth in Malik, supra). A free exercise violation occurs when an 21 22 23 inmate’s religious practice is burdened by preventing the inmate from engaging in sincere religious conduct. See Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997), overruled in part 24 by Shakur, 514 F.3d at 885. A mere inconvenience does not give rise to a violation; the burden 25 imposed must be substantial. Freeman, 125 F.3d at 737. Additionally, a prison official’s 26 negligent or accidental interference with an inmate’s ability to exercise his religious beliefs does SECOND ORDER TO SHOW CAUSE - 10 1 not state any claim actionable under § 1983. Lovelace v. Lee, 472 F.3d 174, 194 (4th Cir. 2006). 2 Instead, a plaintiff must demonstrate the prison officials knowingly placed a substantial burden 3 on his ability to practice his religious beliefs. See Lyng v. Northwest Indian Cemetery Protective 4 Ass’n, 485 U.S. 439, 450 (1988) (emphasis added). 5 Additionally, a restriction on an inmate’s free exercise rights is valid if it is reasonably 6 7 related to legitimate penological interests. See O’Lone, 482 U.S. at 349 (quoting Turner v. 8 Safley, 482 U.S. 78, 89 (1987)). Prison officials must show the restriction of the prisoner’s 9 exercise of religion was reasonably related to a legitimate penological objective. See Ashelman 10 v. Wawrzaszek, 111 F.3d 674, 677–78 (9th Cir. 1997); Allen v. Toombs, 827 F.2d 563, 567 (9th 11 Cir.1987) (citing Turner, 482 U.S. at 89–91). 12 If plaintiff intends to pursue a violation of his religious freedom with regard to being 13 allowed to burn his hair, he should include all of his factual allegations against specifically 14 15 16 17 18 19 20 named defendants relating to this claim in one section of his amended complaint. H. Access to Courts Plaintiff alleges in various parts of his complaint that defendants are limiting his access to the law library, legal computers, and materials necessary to complete legal work. In Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), the United States Supreme Court held that inmates possess a fundamental constitutional right of access to 21 22 23 courts in order to contest the fact, duration and conditions of their confinement. Id. at 822-23. In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court explained that the “Constitution does 24 not require that prisoners be able to conduct generalized research,” but rather, “[t]he tools it 25 requires to be provided are those that the inmates need in order to attack their sentences, directly 26 or collaterally, and in order to challenge the conditions or their confinement.” Id. at 355, 360. SECOND ORDER TO SHOW CAUSE - 11 1 The Ninth Circuit has held that this right does not extend beyond the initial pleading phase. 2 Cornett v. Donovan, 51 F.3d 894 (9th Cir. 1995). Further, this right does not require that prison 3 officials provide affirmative assistance, but rather forbids states from “erecting barriers that 4 impede the right of access of incarcerated persons.” Silva v. Di Vittorio, 658 F.3d 1090, 1102 5 (9th Cir. 2011) (citing John L. v. Adams, 969 F.2d 228 [6th Cir. 1992]). 6 7 In order to establish a violation of the right of access to courts, an inmate must show 8 actual injury. Actual injury results from “some specific instances in which an inmate was 9 actually denied access to the courts.” Sands v. Lewis, 886 F.2d 1166, 1170-71 (9th Cir. 1989). 10 Moreover, a prison regulation impinging on inmates’ constitutional rights, even a right of access 11 to the courts, is valid if it is reasonably related to legitimate penological interests. See Lewis, 518 12 U.S. at 353 (citing to Turner v. Safley, 482 U.S. 78, (1987). 13 If plaintiff intends to pursue this claim, he should include all of his factual allegations 14 15 16 17 18 19 20 against specifically named defendants relating to his access to courts claim in one section of his amended complaint and he must include facts describing actual injury. CONCLUSION The Court DECLINES to serve the complaint which as discussed above is deficient. However, the Court again grants plaintiff permission to submit a second amended complaint to attempt to cure the above-mentioned deficiencies by April 28, 2017. The second amended 21 22 23 24 complaint must carry the same case number as this one. It should be limited to 20 pages. Plaintiff should list his claims in separately numbered paragraphs containing all relevant factual allegations relating to each separately numbered claim. 25 The Court will screen the amended complaint to determine whether it contains factual 26 allegations linking each defendant to the alleged violations of plaintiff’s rights. If the second SECOND ORDER TO SHOW CAUSE - 12 1 amended complaint is not timely filed or fails to adequately address the issues raised 2 herein, the Court will recommend dismissal of this action as frivolous pursuant to 28 3 U.S.C. § 1915 and the dismissal will count as a “strike” under 28 U.S.C. § 1915(g). 4 DATED this 28th day of March, 2017. 5 A 6 Karen L. Strombom United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SECOND ORDER TO SHOW CAUSE - 13

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