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Anderson v. Delten

United States District Court, D. Montana, Helena Division

January 17, 2018

MICHAEL HENRY ANDERSON, Plaintiff,
v.
DAN DELTEN, TOM SMIKINS and DAN JOHNSON, Defendants. MICHAEL HENRY ANDERSON, Plaintiff,
v.
BEN BOULEY, Defendant.

          ORDER

          John Johnston United States Magistrate Judge

         Order and Findings and Recommendations of United States Magistrate Judge Order and Findings and Recommendations of United States Magistrate Judge Plaintiff Michael Anderson, a prisoner proceeding without counsel, filed an Amended Complaint in consolidated Civil Actions 17cv63 and 17cv70 alleging Defendants told other inmates that he was a sex offender and a homosexual, failed to protect him, and as a result he was assaulted by other inmates on several occasions. (Civil Action No. 17cv63, Amended Complaint, Doc. 12.)

         On January 10, 2018, Mr. Anderson filed a motion to proceed in forma pauperis and a new Complaint raising similar allegations against Ben Bouley claiming that Mr. Bouley made it known that Mr. Anderson is transgender/gay and a sex offender which caused other inmates to sexually harass him, threaten him, and assault him. He also alleges that Mr. Bouley treated him unfairly, came onto to him, put him in the hole in retaliation for not having sex with him, and made him lose property. (Civil Action No. 18cv04, Doc. 2.)

         I. Consolidation

         Rule 42(a) of the Federal Rules of Civil Procedure permits the Court to consolidate cases which, in the Court's judgment, involve common questions of law or fact. Fed.R.Civ.P. 42(a). The Court has “broad discretion” under Rule 42(a) “to consolidate cases pending in the same district.” Inv'rs Research Co. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989). In exercising this discretion, the Court “balance[s] the interest of judicial convenience against the potential for delay, confusion and prejudice that may result from such consolidation.” Sapiro v. Sunstone Hotel Inv'rs, L.L.C., 2006 WL 898155, at *1 (D. Ariz. Apr. 4, 2006) (citations omitted).

         Upon consideration of these factors and independent review of the three complaints, the Court concludes that the cases should be consolidated. The cases raise common questions of fact and the cases can be consolidated without giving rise to delay, confusion, or prejudice.

         II. 18cv04-H-BMM-JTJ Motion to Proceed in Forma Pauperis

         Mr. Anderson filed a Motion to Proceed in Forma Pauperis in his new action and submitted an account statement sufficient to make the showing required by 28 U.S.C. §1915(a). The request to proceed in forma pauperis will be granted.

         Pursuant to 28 U.S.C. § 1915(b)(1), Mr. Anderson must pay the statutory $350.00 filing fee. Mr. Anderson submitted an account statement showing an inability to pay that fee; therefore, the initial partial filing fee is waived, and he may proceed with the case. See Bruce v. Samuels, 136 S.Ct. 627, 629 (2016)(“the initial partial filing fee may not be exacted if the prisoner has no means to pay it, § 1915(b)(4)”). Mr. Anderson will be required to pay the fee in installments and make monthly payments of 20% of the preceding month's income credited to his prison trust account. The percentage is set by statute and cannot be altered. 28 U.S.C. § 1915(b)(2). Mr. Anderson must make these monthly filing-fee payments simultaneously with the payments required in the other cases he has filed. Id. By separate order, the Court will direct the facility where Mr. Anderson is held to forward payments from Mr. Anderson's account to the Clerk of Court each time the account balance exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         III. Analysis

         Mr. Anderson is a prisoner proceeding in forma pauperis so the Court must review his Complaints under 28 U.S.C. §§ 1915, 1915A. Sections 1915A(b) and 1915(e)(2)(B) require the Court to dismiss a complaint filed in forma pauperis and/or by a prisoner against a governmental defendant before it is served if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.

         Mr. Anderson's allegations in his new Complaint that Mr. Bouley treated him unfairly, came onto to him and made him lose a lot of property fail to state a claim upon which relief may be granted and should be dismissed.

         A. Sexual Harassment

         The Eighth Amendment does “not necessarily extend to mere verbal sexual harassment.” Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Minifield v. Butikofer, 298 F.Supp.2d 900, 903-04 (N.D. Cal. 2004) (“Allegations of verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C. § 1983”). Courts have repeatedly determined such conduct does not satisfy the “unnecessary and wanton infliction of pain” standard under the Eighth Amendment. See, e.g., Blueford v. Prunty, 108 F.3d 251, 256 (9th Cir. 1997) (affirming summary adjudication in favor of the prison officials where “the only arguably sexually harassing conduct . . . was verbal”); Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002) (allegations that prison guard asked prisoner to have sex with her and to masturbate in front of her and other female staffers did not rise to level of Eighth Amendment violation); Barney v. Pulsipher, 143 F.3d 1299, 1311 n. 11 (10th Cir. 1998) (allegations that a county jailer subjected female prisoners to severe verbal sexual harassment and intimidation was not sufficient to state a claim under the Eighth Amendment); Zander v. McGinnis, 1998 U.S. App. LEXIS 13533, 1998 WL 384625, at *2 (6th Cir. June 19, 1998) (finding a prisoner's claim that a guard called him “pet names” for ten months failed to support an Eighth Amendment claim “because allegations of verbal abuse do not rise to the level of a constitutional violation”). As Mr. Anderson was informed in a prior Order, allegations of verbal harassment, even if they are sexual in nature, do not state a viable claim under section 1983. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).

         B. Deprivation of Property

         Mr. Anderson has also failed to state a claim for deprivation of property. 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 liberty or property interest 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, however, 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).

         Mr. Anderson makes no allegation that the alleged deprivation of his property was authorized. He appears to allege an unauthorized intentional deprivation of property. Therefore, there is no due process violation if he has a meaningful post-deprivation remedy for the loss. The Montana Tort Claims Act, Mont. Code Ann. §§ 2-9-101, et seq., provides prisoners an adequate post-deprivation remedy. Mr. Anderson's due process claims fail as a matter of law.

         C. Remaining Allegations in CV 18-04 and Amended Complaint in 17-63

         The Court has considered whether the remaining allegations against Defendants Bouley in Civil Action No. 18cv04 and his allegations in the Amended Complaint filed in Civil Action No. 17cv63 are frivolous, malicious, fail to state a claim, or seek solely monetary relief from a defendant who is immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b). It has also considered whether Mr. Anderson has a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g). Dismissal is not appropriate at this time and Defendants must respond to the Amended Complaint filed in Civil Action 17-cv-63-H-BMM-JTJ. In addition, Defendant Bouley must respond to Mr. Anderson's claims that (1) Mr. Bouley made it known that Mr. Anderson is transgender/gay and a sex offender which caused other inmates to sexually harass him, threaten him, and assault him, and (2) that Mr. Bouley put Mr. Anderson in the hole in retaliation for not having sex with him. See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983, ” once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that plaintiff has a “reasonable opportunity to prevail on the merits, ” Defendant is required to respond).

         Based on the foregoing, the Court ...


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