United States District Court, D. Montana, Helena Division
Johnston United States Magistrate Judge
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.)
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.)
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).
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.
18cv04-H-BMM-JTJ Motion to Proceed in Forma Pauperis
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.
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).
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.
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.
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).
Deprivation of Property
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).
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
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.
Remaining Allegations in CV 18-04 and Amended Complaint in
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).
on the foregoing, the Court ...