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Curry v. Benson

United States District Court, D. Montana, Butte Division

March 22, 2019

WILLIAM ROBERT CURRY, Plaintiff,
v.
DONNA BENSON; ALEX VUKOVICH; RAY HOFFENBACKER, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. Motion to Proceed In Forma Pauperis

         Curry's 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 Instruction 3.

         II. Screening

         Curry 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).

         Curry 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).

         A. Curry's Claims

         Curry's 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.

         Defendant 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 at 2).

         WATCh 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).

         B. Analysis

         Curry's 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).

         At 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 ...


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