United States District Court, D. Montana, Great Falls Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JOHNSTON JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE
and Findings and Recommendations of United States Magistrate
Judge Plaintiff Brian Blackwell filed a Complaint pursuant to
42 U.S.C. § 1983 alleging his conditions of confinement
at the Cascade County Detention Facility violated his
constitutional rights. Mr. Blackwell claims of failure to
protect, denial of access to the courts, and claims regarding
housing state prisoners with federal prisoners and the
Cascade County Correctional Facility will be recommended for
dismissal. Defendants Cascade County, Sheriff Bob Edwards,
and Commander O'Fallon will be required to respond to Mr.
Blackwell's conditions of confinement claims including
overcrowding, lack of heat, exposure to communicable diseases
and black mold.
STATEMENT OF THE CASE
Blackwell is a federal prisoner proceeding without counsel
and in forma pauperis. He plead guilty to failure to register
as a sex offender in this Court on December 12, 2017.
United States v. Blackwell, Criminal Action No.
17-00013-H-CCL, (Doc. 22.) He was sentenced on April 5, 2018.
Id. at (Doc. 30). He is currently incarcerated at
FCI Sheridan in Oregon. He was incarcerated at the Cascade
County Detention Center at all times relevant to his
Complaint. (Complaint, Doc. 2.)
Blackwell names the following Defendants: Cascade County,
Cascade County Correctional Facility, Sheriff Bob Edwards,
and Commander O'Fallon. (Doc. 2 at 5.)
Blackwell was housed at the Cascade County Detention Facility
from September 29, 2017 to October 6, 2017 and from December
6, 2017 to January 4, 2018. (Complaint, Doc. 2 at 6.) While
there he claims he was forced to live in substandard living
conditions including: (1) sleeping on the floor because he
was the third inmate in a cell designed for two inmates; (2)
being forced to live with inmates with HIV, MERSA, Hepatitis,
and other communicable diseases; (3) being held in areas
where there was black mold growing on the walls; (4) and
living in cold temperatures because the windows had holes in
them allowing ice cold air and snow to blow in and form
icicles on the walls of his cell. He states the guards
refused to give out extra blankets and the inmates barely got
enough heat to keep from getting frost bite.
complains that he was housed with state inmates which he
alleges violates Bureau of Prison policies and that on
December 24, 2017, he was assaulted by a state inmate. He
contends that Joshua Racki, Chief Law Enforcement Official
for Cascade County stated he would take full responsibility
for all federal inmates housed at CCDC. (Doc. 2-1.)
supplement to the Complaint, Mr. Blackwell also alleges he
was denied access to the courts to properly defend himself in
his current claims against Defendants. He states Defendants
only allow legal mail sent to them by attorneys in cases
against them. (Doc. 9.)
Blackwell is a prisoner proceeding in forma pauperis so the
Court must review his Complaint 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. A
complaint is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). “A case is
malicious if it was filed with the intention or desire to
harm another.” Andrews v. King, 398 F.3d 1113,
1121 (9th Cir. 2005). A complaint fails to state a claim upon
which relief may be granted if a plaintiff fails to allege
the “grounds” of his “entitlement to
relief.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotation omitted).
of the Federal Rules of Civil Procedure provides that a
complaint “that states a claim for relief must contain
. . . a short and plain statement of the claim showing that
the [plaintiff] is entitled to relief.” Fed.R.Civ.P.
8(a)(2). That is, a complaint must “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). A
complaint's allegations must cross “the line from
conceivable to plausible.” Iqbal, 556 U.S. at 680.
is a two-step procedure to determine whether a
complaint's allegations cross that line. See
Twombly, 550 U.S. at 556; Iqbal, 556 U.S. 662. First, the
Court must identify “the allegations in the complaint
that are not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679, 680. Factual allegations are not
entitled to the assumption of truth if they are “merely
consistent with liability, ” or “amount to
nothing more than a ‘formulaic recitation of the
elements' of a constitutional” claim. Id.
at 679, 681. A complaint stops short of the line between
probability and the possibility of relief where the facts
pled are merely consistent with a defendant's liability.
Id. at 678.
the Court must determine whether the complaint states a
“plausible” claim for relief. Iqbal, 556 U.S. at
679. A claim is “plausible” if the factual
allegations, which are accepted as true, “allow[ ] the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
678. This inquiry is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679
(citation omitted). If the factual allegations, which are
accepted as true, “do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged-but it has not “show[n]”-“that
the pleader is entitled to relief.” Id.
(citing Fed.R.Civ.P. 8(a)(2)).
document filed pro se is ‘to be liberally
construed,' and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.'”
Erickson v. Pardu, 551 U.S. 89, 94 (2007); cf. Fed.
Rule Civ. Proc. 8(e) (“Pleadings must be construed so
as to do justice”).
Denial of Access to the Courts
the First and Fourteenth Amendments to the Constitution,
prisoners have a “fundamental constitutional right of
access to the courts.” Lewis v. Casey, 518
U.S. 343, 346 (1996) (quoting Bounds v. Smith, 430
U.S. 817, 828 (1977)). In addition, prison officials may not
actively interfere with prisoners' right to litigate.
Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir.
2011) overruled on other grounds by Coleman v.
Tollefson, 135 S.Ct. 1759, 1765 (2015). Claims for
denial of access to the courts may arise from the frustration
or hindrance of “a litigating opportunity yet to be
gained” (forward-looking access claim) or from the loss
of a meritorious suit that cannot now be tried
(backward-looking claim). Christopher v. Harbury,
536 U.S. 403, 413-15 (2002).
backward-looking claims, a plaintiff “must show: 1) the
loss of a ‘nonfrivolous' or ‘arguable'
underlying claim; 2) the official acts frustrating the
litigation; and 3) a remedy that may be awarded as recompense
but that is not otherwise available in a future suit.”
Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir.
2007) (citing Christopher, 536 U.S. at 413-14), overruled on
other grounds by Hust v. Phillips, 555 U.S. 1150
(2009). The right is limited to bringing complaints in direct
criminal appeals, habeas petitions, and civil rights actions.
Lewis, 518 U.S. at 354. It is not a right to discover such
claims or to litigate them effectively once filed with a
standing to bring this claim, a plaintiff must allege he
suffered an actual injury. Lewis, 518 U.S. at 351-52;
Vandelft v. Moses, 31 F.3d 794, 798 (9th Cir. 1994).
In other words, he must have been denied the necessary tools
to litigate a nonfrivolous claim attacking a conviction,
sentence, or conditions of confinement. Christopher, 536 U.S.
at 415 (citing Lewis, 518 U.S. at 353 & n.3); Lewis, 518
U.S. at 354. A plaintiff need not show that he would have
been successful on the merits of his claims, only that they
were not frivolous. Allen v. Sakai, 48 F.3d 1082,
1085 & n.12 (9th Cir. 1994). A claim “is frivolous
where it lacks an arguable basis either in law or in
fact.” Neitzke, 490 U.S. at 325. The Ninth Circuit has
[a] prisoner need not show, ex post, that he would have been
successful on the merits had his claim been considered. To
hold otherwise would permit prison officials to substitute
their judgment for the courts' and to interfere with a
prisoner's right to court access on the chance that the
prisoner's claim would eventually be deemed frivolous.
Allen, 48 F.3d at 1085. To properly plead a denial of access
to the courts claim, “the complaint should state the
underlying claim in accordance with Federal Rule of Civil
Procedure 8(a), just as if it were being independently
pursued, and a like plain statement should describe any
remedy available under the access claim and presently unique
to it.” Christopher, 536 U.S. at 417-18 (footnote
case, Mr. Blackwell fails to state a denial of access to the
courts claim because he fails to cite a specific incident
wherein there has been an actual injury or interference with
his ability to ...