United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
CAROLYN S. OSTBY, Magistrate Judge.
Pending is Plaintiff Heather Wylie's Amended Complaint. ECF 11. In its prior Order, the Court found that Wylie's original Complaint violated Rule 8 of the Federal Rules of Civil Procedure. ECF 8. Wylie's allegations were vague and failed to state a claim upon which relief may be granted.
The vague 173-page Amended Complaint is not a significant improvement. Nonetheless, the Court will on this limited occasion disregard the Rule 8 violations and attempt to determine which claims are frivolous, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief as required by 28 U.S.C. §§ 1915, 1915A.
Wylie is advised, however, that in the future the Court will enforce the length restrictions in the Local Rules and will strike any of Wylie's filings that are of excessive length. For example, the Local Rules provide that briefs in support of a motion and response briefs are limited to 6500 words, which is approximately 20 to 25 pages, depending on the typeface or handwriting.
The Court has liberally construed the following possible claims: (a) denial of access to the court (Counts 1, 8, 9, 10, 11); (b) retaliation (Counts 1, 3, 5); (c) denial of due process in disciplinary proceedings (Counts 1, 3, 4, 5); (d) unauthorized communications with defense counsel (Count 4); (e) nepotism (Count 6); (f) inaccurate information in Department of Corrections reports (Count 7); (g) deprivation of property without due process of law (Counts 7, 12); (h) delayed or interfered with mail (Count 9); (I) medical/ADA claims (Count 13); and (j) denial of medical parole (Count 14).
A. Denial of Access to Courts (Counts 1, 8-11)
Prisons must provide "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Lewis v. Casey, 518 U.S. 343, 351 (1996) ( citing Bounds v. Smith, 430 U.S. 817, 825 (1977)). There is no "abstract, freestanding right to a law library or legal assistance." Lewis, 518 U.S. at 351. Instead, an inmate must "demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." Lewis, 518 U.S. at 351. Prisoners must allege facts sufficient to show: (1) a nonfrivolous legal attack on their conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2) they suffered an actual injury as a result. Lewis, 518 U.S. 343, 353-55.
Wylie complains she has been denied access to the courts because Defendants confiscated and then mailed discs that contained her criminal file (Count 1), interfered with her appearance in her divorce case (Count 8), interfered with and opened her legal mail (Count 9), denied her indigent status (Count 10), and made it difficult for her to obtain postage, copies, and typewriter ribbon (Count 11).
These allegations fail to state a claim because there is no allegation of what "nonfrivolous legal attack" Wylie may have been attempting to make in her post-conviction relief efforts or otherwise. Wylie failed to describe or explain what legal argument or arguable pro se claim she would have presented if her computer discs had not been confiscated, had she been given indigent status, or if she had provided the supplies she alleges she was denied. See Lewis, 518 U.S. at 351. "[L]ike any other element of an access claim[, ]... the predicate claim must be described well enough to apply the nonfrivolous' test and to show that the arguable' nature of the underlying claim is more than hope." Christopher v. Harbury, 536 U.S. 403, 416 (2002). While Wylie need not allege that she "would have been successful on the merits had [her] claim been considered, " Allen v. Sakai, 48 F.3d 1082, 1085 (9th Cir. 1994)), she must at least minimally describe the arguable basis of the pro se claim she intended to pursue further. "[T]he complaint should state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a), just as if it were being independently pursued." Christopher, 536 U.S. at 417 (footnote omitted). This is because a prisoner's right to access the courts does not include the right to present frivolous claims. See Lewis, 518 U.S. at 353 n.3.
Wylie also failed to sufficiently allege that she suffered an actual injury as a result of Defendants' actions. An "actual injury" is defined as "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Lewis, 518 U.S. at 348. Wylie provides no explanation of how the confiscation of her computer discs, interference with her mail, denial of indigent status, or denial of certain supplies interfered with the presentation of her legal claims. She was advised in the Court's prior Order ( ECF 8 ) that she needed to alleged an actual injury. She has not done so. Further leave to amend would be futile. Wylie's allegations of denial of access to the courts as set forth in Counts 1, 9, 10, and 11 fail to state a claim and will be recommended for dismissal.
Wylie also alleged that the prison interfered with her appearance at her divorce hearing and as a result she lost marital assets. Amd. Complaint-Count 8, ECF 11-1 at 48-59. Although Wylie may have suffered an actual injury by not appearing for her divorce action, the right of access to the courts "is not satisfied by just any type of frustrated legal claim." Lewis, 518 U.S. at 354. It only requires that prisoners have the capability of bringing challenges to sentences or conditions of confinement. Id. 354-55. As the divorce hearing was not a challenge to Wylie's conviction or her conditions of confinement, she has no constitutional right to access the courts in that proceeding. Count 8 also fails to state a claim as a matter of law and will be recommended for dismissal.
B. Retaliation (Counts 1, 3, 5)
To state a claim for First Amendment retaliation in the prison context, a plaintiff must allege five elements: (1) a state actor took an adverse action against the plaintiff, (2) because of, (3) the plaintiff's protected conduct, (4) which chilled the plaintiff's exercise of her First Amendment rights, and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Liberally construed, the Court has identified two potential claims of retaliation. Wylie alleges she had knowledge of fraudulent activity occurring within the Montana Correctional Enterprises ("MCE") program at the prison and "had done a production status' compilation" that included all of the questionable items being manufactured by MCE specifically for former Warden Acton and various other MWP staff members. Amd. Complaint-Count 1, ECF 11-1 at 2. Wylie alleges she received a call presumably pertaining to this alleged questionable activity in August 2011 and a few weeks later Kevin Mickeson fired her from her job MCE, her computer discs relating to her criminal case were confiscated, and she received a disciplinary report. Amd. Complaint-Count 1, ECF 11-1 at 2. She also alleges that Warden Acton personally recommended that Wylie be prohibited from being employed at the prison where she would have access to computers. Wylie alleges this recommendation was done in retaliation and as a way for Warden Acton to protect herself from "her own wrongdoings within MWP." Amd. Complaint-Count 5, ECF 11-1 at 39. While it is not clear that Wylie actually engaged in "protected conduct" regarding these allegations she has stated enough to require a response from Kevin Mickelson and Warden Acton.
Secondly, Wylie alleges that she filed a grievance regarding Lt. Moorman's conduct on March 23, 2012 and on April 19, 2012 she received a write-up from Lt. Moorman in retaliation for filing the grievance. Amd. Complaint-Count 3, ECF 11-1 at 19; Amd. Complaint-Count 5, ECF 11-1 at 36. This claim will also be served upon Lt. Moorman.
C. Denial of Due Process in Disciplinary Hearings (Counts 1, 3, 4, 5)
Counts 1, 3, 4, and 5 are construed as allegations of denial of due process rights as it relates to disciplinary hearings held at Montana Women's Prison. The Due Process Clause of the Fourteenth Amendment protects prisoners from being deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To state a claim for a due process violation, Wylie must allege (1) that she had a protected liberty interest and (2) was deprived of that interest without adequate due process. If there is no liberty interest at stake, the Constitution does not require any process, and the second element becomes irrelevant. Meachum v. Fano, 427 U.S. 215, 223-24 (1976); Board of Regents v. Roth, 408 U.S. 564, 569 (1972); Erickson v. United States, 67 F.3d 858, 861 (9th Cir. 1995).
In the prison setting, a liberty interest is recognized and protected only if state officials or employees take actions that either (1) affect the sentence imposed upon conviction in an unexpected manner, or (2) impose a hardship that is atypical and significant in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 483-84 (1995); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).
In Wylie's case, the threshold requirement for showing a liberty interest is not met. Wylie is serving a twenty-year sentence for theft. See Civil Case No. 11-CV-67-BU-SEH, ECF 5 at 2. "Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose." Meachum, 427 U.S. at 225. Consequently, placement in any part of a Montana prison would not affect Wylie's sentence in an unexpected manner. Wylie argues that the disciplinary hearing at issue could effect her standing before the District Court and the Board of Pardons and Parole. Amd. Complaint-Count 4, ECF 11-1 at 30 But, the effect of Wylie's discipline on her parole prospects is "too attenuated" to establish a liberty interest. Sandin, 515 U.S. at 487. The first prong of the Sandin test for a liberty interest is not met.
The second prong of the Sandin test also is not met. Whether a hardship is "atypical and significant" depends on three factors:
1) whether the challenged condition mirrored those conditions imposed upon inmates in administrative segregation and protective custody, ' and thus comported with the prison's discretionary authority; 2) the duration of the condition, and the degree of restraint imposed; and 3) whether the state's action will invariably affect the duration of the prisoner's sentence.
Ramirez, 334 F.3d at 861 (citing Sandin, 515 U.S. at 486-87). As a result of Wylie's disciplinary hearings, she lost her jobs, was placed in a different pod within the prison, was placed in pre-hearing confinement for 12 days, was required to participate in a "Level 4 therapeutic intervention, " and could not work with computers in the prison. Amd. Complaint-Counts 1, 3, ECF 11-1 at 9, 21. The loss of certain privileges such as employment and computer access and placement in pre-hearing confinement for 12 days is not atypical or significant in comparison to inmates in protective custody or inmates whose placement has not yet been determined. Sandin, 115 S.Ct. at 2301 (30 days disciplinary segregation not "atypical" where no evidence that difference from other kinds of segregation); c.f. Wilkinson v. Austin, 545 U.S. 209 (2005) (placement in a supermax prison where inmates were deprived of almost all human contact for an indefinite period of time and lost their parole eligibility gave rise to a liberty interest).
Wylie has not alleged sufficient facts to show she had a liberty interest in avoiding the discipline she received. It is therefore irrelevant whether she received adequate due process protections, because she was not constitutionally entitled to due process. Wylie's due process claims as alleged in Counts 1, 3, 4, and 5 will be recommended for dismissal.
D. Deprivation of Property without Due Process of Law
Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). An authorized, intentional deprivation of property (one carried out pursuant to established state procedures) is actionable under the Due Process Clause. Hudson v. Palmer, 468 U.S. 517, 532, n. 13 (1984) ( citing Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)); Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985). But negligent and/or unauthorized intentional deprivations of property by a state employee do not "constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available." Hudson, 468 U.S. at 533; Parratt v. Taylor, 451 U.S. 527, 535-44 (1981) (no due process violation where a state employee negligently lost prisoner's hobby kit), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Therefore, if a state employee loses or ...