United States District Court, D. Montana, Butte Division
ORDER AND FINDINGS AND RECOMMENDATION OF U.S.
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE
Curry filed this action on March 5, 2019. He committed a
felony DUI offense and is currently incarcerated at
Crossroads Correctional Center in Shelby, Montana.
Motion to Proceed In Forma Pauperis
motion adequately shows he is unable to pay, in a lump sum,
the full filing fee for this action. The motion to proceed in
forma pauperis will be granted. The Court will impose an
initial partial filing fee of $25.00. The balance will be
collected monthly from Curry's inmate trust account. See
28 U.S.C. § 1915(b)(1)- (2); Compl. (Doc. 2) at 2
is a prisoner proceeding in forma pauperis. The Court must
review his complaint to determine whether it fails to state a
claim on which relief may be granted. See 28 U.S.C.
§§ 1915(e)(2)(B)(ii), 1915A(a).
is also representing himself. “A 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. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal
quotation marks and citation omitted).
claims arise from a brief conversation he had with two other
people, AE and BD, while all three were participating in the
Warm Springs Addiction Treatment and Change Program
(“WATCh”), a less-restrictive alternative to
prison for felony DUI offenders. See Compl. Ex. 1 (Doc. 2-1
at 1). Other people were present, but Curry avers they
“were having their own conversations.”
Id. Curry admits his conversation was of a sexual
nature but claims it was private and ceased when BD pointed
out that “it was wrong.” See Id.
Hoffenbacker placed Curry and AE in holding pending an
investigation of the incident. Hoffenbacker's report
stated that unidentified other people saw them “smiling
and joking when passing their peers . . . continuing to think
their comments were funny.” See Compl. Ex. 2 (Doc. 2-1
staff imposed disciplinary sanctions against Curry, who
decided to leave the program. See Compl. Ex. 1 (Doc. 2-1 at
1). He alleges the Defendants, who participated in the
disciplinary hearing or in imposing sanctions, violated his
First Amendment right to free speech. See Compl. (Doc. 2) at
6. He also claims the WATCh program makes “[t]he right
to speak out, whether to defend yourself, or question
authority . . . forbidden and punishable.” Compl. App.
B (Doc. 2-1 at 5).
allegations demonstrate that Defendants disciplined him for
violating the rules of the program, not for speaking out in
his own defense. Staff found Curry “use[d] vulgar,
offensive . . . or other inappropriate language, ”
engaged in “disrespectful behavior toward staff,
” and used “sexual slurs.” See Compl. Ex. 2
(Doc. 2-1 at 2). The program's rules against vulgar or
offensive language, disrespectful behavior toward staff, and
sexual slurs are plainly related to legitimate penological
interests in retaining staff and maintaining order. See,
e.g., Beard v. Banks, 548 U.S. 521, 529 (2006);
Turner v. Safley, 482 U.S. 78, 89 (1987); Pell
v. Procunier, 417 U.S. 817, 822 (1974).
most, Curry avers his speech was not worth disciplining and
claims the evidence against him was weak or nonexistent. But
he concedes he said he could not imagine having sex with a
counselor. See Compl. Ex. 1 (Doc. 2-1 at 1). He does not
challenge the rules, only the finding that he failed to
comply with them. The First Amendment does not give him the
right to decide whether he complied with the rules, and
federal courts do not retry disciplinary cases to determine
whether staff findings were ...