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Sellers v. Kirkegard

United States District Court, D. Montana, Helena Division

February 9, 2015

DONNIE MACK SELLERS, Plaintiff,
v.
LEROY KIRKEGARD, MIKE BATISTA, STATE OF MONTANA, JOHN AND JANE DOES, MICHELE L. STEYH, et al., Defendants.

ORDER

DONALD W. MOLLOY, District Judge.

Introduction

Plaintiff Donnie Mack Sellers, appearing pro se, alleges in his Amended Complaint that the conditions of his confinement violated his Eighth Amendment and other rights. (Doc. 14.) Magistrate Judge Keith Strong entered Findings and Recommendations on December 4, 2014, recommending that all claims and all defendants be dismissed except Sellers's failure to protect claim against Defendant Michele Steyh. (Doc. 19.) Sellers filed objections to the Findings and Recommendations on December 19, 2014. (Doc. 20.)

Standard

The court reviews findings and recommendations on nondispositive motions for clear error. 28 U.S.C. § 636(b)(l)(A); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). On dispositive motions, the parties are entitled to de nova review of the specified findings or recommendations to which they object, 28 U.S.C. § 636(b)(l); McDonnell Douglas Corp., 656 F.2d at 1313, and where there are no objections, the court is to give the level of consideration it deems appropriate, Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."). This Court reviews for clear error. Clear error exists if the court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).

Discussion

Sellers generally objects to Judge Strong's Findings and Recommendations, but he specifically objects only as to his failure to protect claim. "Prison officials have a duty to take reasonable steps to protect inmates from physical abuse." Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982). To establish a violation of this duty, the prisoner must establish that prison officials were "deliberately indifferent" to serious threats to the inmate's safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Where an inmate's claim is based on an alleged failure to prevent harm, the inmate may satisfy the "sufficiently serious" requirement by showing the existence of "conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 834. Sellers states that he "agrees with the Magistrate's finding that Defendant [Steyh] is to be required to make an appearance on the failure to protect claim in Oct. 2010 issue, " but he insists that two additional defendants, Jane Doe[1]and Billie Reich, should also be ordered to respond to his failure to protect claim.

A. Jane Doe

In his Amended Complaint, Sellers alleges that upon his entry into the Montana State Prison, he informed Jane Doe No. 1 about the threats he was receiving from fellow inmate Maynard. (Doc. 14-2 at 13-14.) At that time, Jane Doe provided Sellers with an intake form that questioned whether he had any enemies in the prison, and when he marked "Yes, " she informed him she would have to place him in segregation. ( Id. at 14.) After Sellers clarified that he had no enemies in the prison other than Maynard, she tore up the first form, gave him a new one, and told him to leave the question unanswered so that he wouldn't be placed in segregation. (Id.) She then told Sellers he would be called out to talk to an investigator about the threats and assured him he would not be placed on the same unit as Maynard. (Id.) Sellers wrote "uncertain" on the new form. (Id.) He was never called out by an investigator, and he was placed on the same unit as Maynard. ( Id. at 14-15.) Maynard assaulted Sellers 11 days later, breaking his jaw. ( Id. at 15.) Sellers now insists that Jane Doe denied him protection, which led to the assault. (Doc. 20 at 2.)

Construed liberally, Sellers's allegations that Jane Doe tore up his first form, encouraged him to leave the question blank, and failed to ensure that an investigation occurred and that he was not placed on the same unit as Maynard seems to raise a non-frivolous question as to whether Jane Doe acted with deliberate indifference to serious threats to Sellers's safety. Defendant Jane Doe No. 1 will be required to respond to this claim.

B. Billie Reich

In his Amended Complaint, Sellers discusses Defendant Reich's presence during a meeting with Defendant Steyh on November 15, 2011, regarding threats he was receiving. (Doc. 14-2 at 18.) He now insists that Reich actively participated with Steyh to deny him protection from those threats. (Doc. 20 at 2.) However, this allegation concerns threats he received from a different inmate than Maynard concerning a letter. (Id.) As Sellers did not allege that he suffered any injury as a result of this incident, he failed to establish a serious threat to his safety, and the claim is dismissed.

Sellers also alleged in his Amended Complaint that at the request of Steyh and Reich during the November 15, 2011 meeting, he gave a list of the inmates who were threatening him to Steyh. ( Id. at 18-19.) He then alleges that Reich would not process his grievance because Sellers "would not give them the names of those threatening him." ( Id. at 19.) Sellers now insists that Reich's "misconduct in assisting (Steyh) in hiding and not listing Sellers['s] enemies & assuring there would be no record of such names of those inmates threatening him did lead to the assault on Sellers by inmate (Highpine) several months later on May 22, 2012." (Doc. 20 at 2.) He also states that Highpine's name was on the list that he gave Steyh. (Id.)

Sellers did not allege in his Amended Complaint that he advised Reich of any threats by Highpine prior to the assault in May 2012. He cannot now add allegations that Highpine's name was on the list he provided to Steyh. Moreover, a list of names given to Steyh six months before an assault does not show that Reich would have known the existence of "conditions posing a ...


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