United States District Court, D. Montana, Great Falls Division
ORDER ADOPTING MAGISTRATE
JUDGE'S FINDINGS AND
MORRIS, UNITED STATES DISTRICT COURT JUDGE
D'Wayne Bailey has filed an Amended Complaint (Doc. 9),
Second Amended Complaint (Doc. 13), Third Amended Complaint
(Doc. 16), Fourth Amended Complaint (Doc. 20), and
corresponding supplements to these complaints (Docs. 17, 19,
and 21). Bailey alleges violations of the First, Fifth,
Eighth, and Fourteenth Amendments to the United States
Constitution. United States Magistrate Judge John Johnston
issued Findings and Recommendations in this matter. (Doc.
24.) Judge Johnston recommended that the Court dismiss all of
Bailey's claims for failure to state a claim, with the
exception of one claim alleging an equal protection
violation. Id. at 1.
filed objections. (Doc. 26.) The Court reviews de novo
findings and recommendations to which objections are made. 28
U.S.C. § 636(b)(1)(C). The Court has reviewed the
Findings and Recommendations de novo and concurs with Judge
Montana state court sentenced to Bailey to 45 years in
custody in June 2005. Bailey spent some of his term within
the Montana Department of Corrections, was transferred via an
interstate compact agreement to California, and then returned
to Montana's custody. (Doc. 2-1 at 4.) The Court
construed Bailey's first filing in this case as a 42
U.S.C. § 1983 complaint. His filing included three
separate habeas petitions. The Court informed Bailey it would
not consider petitions and documents filed in other courts.
Johnston has organized Bailey's claims into six claim
headings across the four amended complaints. For his first
claim, Bailey alleged that Montana State Prison (MSP) has
denied him adequate toiletries and legal materials, and
access to the courts, in violation of his Eighth and
Fourteenth Amendment rights. Second, Bailey alleged that MSP
and Crossroad Correctional Associates (CCA) officials have
demonstrated deliberate indifference to his medical issues,
in violation of the Eighth Amendment. Third, Bailey asserted
that MSP has violated his right to due process through
racially motivated housing placement. Fourth he claimed that
Interstate Compact Coordinator, Linda Moodry, violated his
rights when she destroyed and/or failed to have his property
shipped back to Montana from California. Bailey's fifth
claim alleged that MSP has denied him a special vegetarian
diet in violation of his First and Fourteenth Amendment
rights, as well as a violation of the Religious Land Use and
Institutionalized Persons Act (RLUIPA). His sixth claim
asserted that MSP medical personnel are denying him care in
violation of his Eighth Amendment rights.
Court must review Bailey's claims and dismiss any claim
that is “frivolous, ” “fails to state a
claim upon which relief may be granted, ” or
“seeks monetary relief from a defendant who is
immune.” 28 U.S.C. § 1915; 28 U.S.C. §
1915(A). To state a claim under §1983, a plaintiff must
allege (1) the violation of a federal constitutional or
statutory right; and (2) that the violation was committed by
a person acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988); Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002). A plaintiff
is additionally required to allege a specific injury suffered
and show a causal relationship between the defendant's
conduct and the injury suffered. Rizzo v. Goode, 423
U.S. 362, 371-72 (1976); Johnson v. Duffy, 588 F.2d
740, 743 (9th Cir. 1978).
does not attach to an individual defendant on a civil rights
claim unless the facts establish the defendant's personal
involvement in the constitutional deprivation or a causal
connection between the defendant's wrongful conduct and
the alleged constitutional deprivation. Hansen v.
Black, 885 F.2d 642, 646 (9th Cir. 1989). A plaintiff
may not sue any official on the theory that the official is
liable for the unconstitutional conduct of his or her
subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). Bailey must identify the particular person or persons
who violated his rights. He must also plead facts showing how
that particular person was involved in the alleged violation.
dismissing claims in a pro se complaint, the litigant must be
provided with notice of the deficiencies in his complaint in
order to ensure that the litigant uses the opportunity to
amend. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th
Cir. 1992). Bailey was provided with such notice of the
deficiencies and filed several amendments to his original
complaint. Judge Johnston recommends the Court dismiss
Bailey's first, second, fourth, fifth, and sixth claims.
He further recommends that the Court dismiss part of
Bailey's third claim.
Claim One: Denial of Toiletries and Legal Materials, and
Discrimination in Employment
first claim includes allegations of denial of sufficient
toiletries and legal materials, as well as racial
discrimination in prison employment that prevents him from
obtaining extra toiletries and legal materials. Bailey
alleges his Eighth Amendment right to humane conditions of
confinement has been violated because he does not receive
enough razors, soap, toothpaste, or shaving supplies.
Eighth Amendment protects prisoners from inhumane methods of
punishment and from inhumane conditions of confinement.
Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
2006). To show a violation of the Eighth Amendment, plaintiff
must allege facts sufficient to support a claim that a prison
official knew of and disregarded a substantial risk of
serious harm to the plaintiff. Farmer v. Brennan,
511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d
1124, 1128 (9th Cir. 1998). Bailey admits that he is provided
toiletries, even if he disputes that the quantity meets his
needs. This claim fails.
also seems to allege that MSP and CCA have violated his right
to access courts under the Fourteenth Amendment. He
specifically takes issue with the amount of legal supplies
provided. Prisoners have a constitutional right of access to
the courts. Bounds v. Smith, 430 U.S. 817, 828
(1977). Prisoners also have a right “to litigate claims
challenging their sentences or the conditions of their
confinement to conclusion without active interference by
prison officials.” Silva v. DiVittorio, 658
F.3d 1090, 1103 (9th Cir. 2011), overruled on other grounds
by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th
Cir. 2015). The plaintiff must allege that the deprivation
actually injured his litigation efforts, ...