United States District Court, District of Montana, Helena Division
JAMES E. BALL, Plaintiff,
TERRI STEFALO, TOM WILSON, PAUL LUCIER, LYNN FOSTER KEN MARTHATHER, and SGT. GERNSTEIN, Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
KEITH STRONG KEITH STRONG UNITED STATES MAGISTRATE JUDGE
Mr. Ball alleges Defendants violated his constitutional rights when they retaliated against him for filing and settling a lawsuit against another prison guard, labeled him as a snitch, denied him access to religious services, denied him due process in disciplinary hearings, destroyed his property without due process, denied him access to the courts, yelled at him, and threatened him. (Complaint, Doc. 2). Mr. Ball’s claims of retaliation, failure to protect, and being denied access to religious services in violation of the First Amendment will be served upon Defendants. Mr. Ball’s claims of denial of due process, denial of access to the courts, threats, and violation of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) fail to state a claim upon which relief may be granted and should be dismissed.
Mr. Ball filed this action in federal court, in the Helena Division of the District of Montana. (Complaint, Doc. 2.) The Court has personal jurisdiction over the parties, all of whom are found in Montana. Fed.R.Civ.P. 4(k)(1)(A); Mont. R. Civ. P. 4(b). Read liberally, the Complaint attempts to allege a violation under 42 U.S.C. § 1983, invoking subject matter jurisdiction. 28 U.S.C. § 1331, 28 U.S.C. § 1343(a). The case was assigned to Hon. Dana Christensen, Chief United States District Court Judge, and referred to the undersigned. Local Rule 72.2(a)(1).
Mr. Ball is a prisoner in the custody of the State of Montana. His Complaint must be reviewed to determine if the allegations 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. If so, the case must be dismissed. 28 U.S.C. §§ 1915(e)(2), 1915A(b). This is the review.
Stating a claim
A complaint must allege sufficient factual matter to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility is less than probability, but requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. Pleadings that are no more than conclusions are not entitled to the presumption of truth and may be disregarded. Id. at 679. A plaintiff must plead the essential elements of a claim to avoid dismissal. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Leave to amend
The court liberally construes pro se pleadings. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). “Unless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
Leave to amend a complaint should be given freely “when justice so requires.” Fed.R.Civ.P. 15. A district court, however, should dismiss a complaint without granting leave to amend if amendments would be futile. Klamath Lake Pharmaceutical Ass’n v. Klamath Medical Services Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983). “Leave to amend need not be given if a complaint, as amended, would be subject to dismissal.” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989).
To establish a claim for retaliation in violation of the First Amendment in the prison context, a plaintiff must show: 1) a prison official took adverse action against him because of his protected conduct, 2) that action chilled his exercise of his constitutional rights, and 3) the action did not advance a legitimate correctional goal. Wood v. Beauclair, 692 F.3d 1041, 1051 (9th Cir. 2012) citing Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The adverse action need not be an independent constitutional violation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he mere threat of harm can be an adverse action, regardless of whether it is carried out because the threat itself can have a chilling effect.” Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009). “[T]iming can properly be considered as circumstantial evidence of retaliatory intent” Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995).
Eighth Amendment–Harassment/Failure to Protect
The Eighth Amendment requires that prison officials take reasonable measures to guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The failure of prison officials to protect inmates from attacks by other inmates or from dangerous conditions at the prison violates the Eighth Amendment when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to the plaintiff’s safety. Id. at 834.
The Ninth Circuit has recognized a claim under 42 U.S.C. § 1983 “for violation of [an inmate’s] right to be protected from violence while in custody” where prison officials labeled an inmate as a “snitch” and as a result he was threatened with harm. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989).
Verbal harassment generally does not violate the Eighth Amendment. Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)(directing vulgar language at an inmate does not state a constitutional claim). Similarly, allegations of mere threats are not cognizable under § 1983. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional wrong).
Fourteenth Amendment–Procedural Due Process
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 cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a protected interest.
Prisoners are entitled to due process protections when subject to disciplinary sanctions that implicate “a protected liberty interest–that is, where the conditions of confinement impose an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Brown v. Oregon Dept. of Corrections, ___ F.3d ___, 2014 WL 1687758 (9th Cir. 2014)(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459–60 (1989).
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). 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 post-deprivation 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 steals an inmate’s property and the state provides a meaningful post-deprivation remedy, there is no claim under the Due Process Clause.
“Inmates retain the protections afforded by the First Amendment, ‘including its directive that no law shall prohibit the free exercise of religion.’” Shakur v. Schriro, 514 F.3d 878, 883–84 (9th Cir. 2008) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)). To implicate the Free Exercise Clause, a prisoner must show that the belief at issue is both “sincerely held” and “rooted in religious belief.” Malik v. Brown, 16 F .3d 330, 333 (9th Cir. 1994). If the inmate makes his initial showing, he must establish that prison officials substantially burden the practice of his religion by preventing him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur, 514 F.3d at 884–85.
Under RLUIPA, a government may not impose a substantial burden on the religious exercise of a confined person unless the government establishes that the burden furthers a “compelling governmental interest” and does so by “the least restrictive means.” 42 U.S.C. § 2000cc-l(a)(l)-(2). Damages are not available for official-capacity RLUIPA claims. Sossamon v. Texas, ––– U.S. ––––, 131 S.Ct. 1651, 1663 (2011). In addition, the Ninth Circuit recently held that damages are not available against defendants sued in their individual capacity under RLUIPA. Wood v. Yordy, ___ F.3d ___, 2014 WL 2462575 (9th Cir. June 3, 2014).
Access to the Courts
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. Casey, 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.” Casey, 518 U.S. at 351.
To show a violation of this right to access to the courts, an inmate must demonstrate “actual injury, ” that is, a specific instance in which he was denied access. Silva v. DiVittorio, 658 F.3d 1090, 1102 (9th Cir. 2011); see also Casey, 518 U.S. 9 at 349. “The injury requirement is not satisfied by just any type of frustrated legal claim.” Casey, 518 U.S. at 354-55. Prisoners have a right to access to the courts only in relation to direct appeals from the convictions for which they were incarcerated, habeas petitions, or civil rights actions challenging the conditions of their confinement. Id. This right of access to the courts “guarantees no particular methodology but rather the conferral of a capability-the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.” Id. at 356. Moreover, the right of access to courts is only a right to bring complaints to federal court and not a right to the discovery of such claims or to litigate them effectively once filed with a court. Id. at 354-55.
For purposes of this review, the allegations in the Complaint are presumed to be true so long as they have some factual support. ...