United States District Court, D. Montana, Helena Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Johnston United States Magistrate Judge.
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.
STATEMENT OF THE CASE
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.)
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.
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.
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
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
SCREENING PURSUANT TO 28 U.S.C. §§ 1915,
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).
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
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 ...