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Green v. Montana State Prison

United States District Court, D. Montana, Helena Division

March 27, 2019

NATHAN FREMONT GREEN, Plaintiff,
v.
MONTANA STATE PRISON, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge.

         Plaintiff Nathan Green filed a Complaint pursuant to 42 U.S.C. § 1983 alleging his Eighth and Fourteenth Amendment rights under the United States Constitution were violated while he was incarcerated at Montana State Prison. Mr. Green has failed to state a federal claim upon which relief may be granted and the Complaint should be dismissed.

         I. STATEMENT OF THE CASE

         A. Parties

         Mr. Green is a state prisoner proceeding in forma pauperis and without counsel. He is currently incarcerated at Corrections Program in Butte, Montana but was incarcerated at Montana State Prison at all times relevant to his Complaint. Mr. Green names the following Defendants: Warden of Montana State Prison (7/16-11/16), Associate Warden (?/16-11/16), Hearings Officer (?/16-11/16), John Veilleux, Montana State Prison, Trainers/Supervisors, and any unknown person(s) responsible for violation of civil rights through knowledge, approval or inaction. (Complaint, Doc. 2 at 2.)

         B. Allegations

         Mr. Green alleges that in July 2016, he was incarcerated at Montana State Prison (MSP) and assigned as a caregiver aid for his cellmate, Defendant John Veilleux. One evening, Mr. Green and Mr. Veilleux became involved in an altercation. Words were exchanged and after Mr. Veilleux threw hot coffee at Mr. Green, the incident became physical. Mr. Green pushed Mr. Veilleux and told him to stop but Mr. Veilleux continued toward him. When Mr. Green had no further room to retreat, he struck Mr. Veilleux in the face. Mr. Veilleux came back swinging striking Mr. Green on the side of his head. Mr. Green responded by punching Mr. Veilleux in the head, face, and torso. Eventually the altercation ended and both prisoners were taken to the infirmary.

         Mr. Green received a write-up for fighting and was taken to the unit office for a disciplinary hearing. He alleges he was not given an opportunity to examine the evidence against him, given a chance to present witnesses despite his request to do so, and was not asked whether he wanted legal counsel or an inmate representative to assist him with the proceeding.

         The Hearings Officer found Mr. Green guilty of assault which is a more severe write-up than fighting. He was sentenced to ten days in the “hole, ” had to write a paper, and told that he would be re-classed. Mr. Green told the Hearings Officer that he wanted to appeal but before he could turn in his appeal, he was given a second hearing. He was not given notice of this hearing, an opportunity to present witnesses, examine evidence, or have legal counsel or an inmate representative.

         The Hearings Officer informed Mr. Green that the Warden had instructed her to hold another hearing and that the assault charge was to be reduced to a fighting write-up. The Hearings Officer appeared upset and agitated about this. Mr. Green was not given a chance to speak on his own behalf and again plead not guilty. The Hearings Officer found Mr. Green guilty of fighting and sentenced him to 15 days in the hole. He filed an appeal but it was not answered. (Complaint, Doc. 2 at 8-14.)

         II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A

         Mr. Green 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).

         Rule 8 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.

         There 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.

         Second, 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 ...


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