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Smith v. Wilson

United States District Court, D. Montana, Helena Division

April 3, 2019

JACOB SMITH, Plaintiff,
v.
THOMAS WILSON, BALTISAR, SEGOVIA, DOE #1, DOE #2, DOE #3, MICHELLE STEYH, DIRECTOR OF THE MONTANA DEPARTMENT OF CORRECTIONS, LEROY KIRKEGARD, TOM WOOD, PAUL REESE, AMBER EDWARDS, CAPTAIN JASON GRIMMIS, and HELENA PROBATION AND PAROLE OFFICERS MICHELLE JENICEK, DEANNE LOUNGEE, AND CHRISTEN THENNIS, [1]Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

         Pending is Plaintiff Jacob Smith's Motion for Leave to File an Amended Complaint (Doc. 14) and Defendants' Motion for Summary Judgment for failure to exhaust administrative remedies (Doc. 20). The parties have fully briefed Mr. Smith's Motion for Leave to file an Amended Complaint. The Court will grant that motion but recommends the dismissal of several claims contained therein. Defendants' motion for summary judgment will be denied without prejudice and subject to renewal as the operative complaint is now the amended complaint.

         I. MOTION TO AMEND

         Rule 15(a) is very liberal and the “court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2); AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” AmerisourceBergen Corp., 465 F.3d at 951. The burden to demonstrate prejudice falls upon the party opposing the amendment. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing of any of the remaining three factors, a presumption exists under Rule 15(a) in favor of granting leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

         Although some of Mr. Smith's amendments fail to state a claim, Defendants have not established that the amended complaint prejudices Defendants, is sought in bad faith, produces an undue delay in the litigation, or is futile. The motion to amend the complaint will be granted and the Clerk of Court will be directed to file the amended complaint.

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

         A. Standard

         Mr. Smith is a prisoner proceeding in forma pauperis so the Court must review his Amended 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 of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. (quoting Fed.R. Civ.P. 8(a)(2)).

         “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. Pardu, 551 U.S. 89, 94 (2007); cf. Fed.R.Civ.P. 8(e) (“Pleadings must be construed so as to do justice”).

         B. Allegations

         1. Original Complaint

         In his original Complaint Mr. Smith made two allegations. First, he alleged Defendants Baltisar, Doe 1, Doe 2 and Doe 3 used excessive force in violation of the Eighth Amendment to the United States Constitution on or about November 3, 2016 when Defendant Baltisar turned Mr. Smith's wrist toward his forearm until it was sprained and another IPS officer nearly broke Mr. Smith's pointer finger. (Complaint, Doc. 2 at 3.) Secondly, he alleged Defendant Steyh placed him in maximum custody in retaliation for filing complaints against the Department of Corrections and agencies in Lewis and Clark County. (Complaint, Doc. 2 at 3, 5.)

         2. Amended Complaint

         Mr. Smith was confined at the Lewis and Clark Detention Center (LCDC) from October 12, 2015 until November 4, 2016. (DOC Movement History, Doc. 21-6 at 54.) In his Amended Complaint, Mr. Smith alleges that while at LCDC, Captain Jason Grimmis attempted to bribe him into dismissing a civil complaint against Sgt. Troy Christensen by allowing Mr. Smith to call his attorney after Mr. Smith had been denied the ability to call his attorney for several weeks prior to this bribe. Mr. Smith then filed complaints against Christensen and Grimmis. (Amended Complaint, Doc. 14-1 at ¶¶ 16-17.)

         Mr. Smith alleges that throughout 2015-2016, Helena Probation Officers Deanne Loungee, Christen Thennis, and Michelle Jenicek threatened and violated his witnesses, friends, family, and wife. He claims these acts were done in retaliation for him filing a complaint alleging that his probation officer Marc Kittleson concealed Mr. Smith's negative urine analysis, violated Mr. Smith, and perjured himself in court by testifying that Mr. Smith was positive for illegal drugs. Mr. Smith then filed complaints against the Department of Corrections (DOC) and the Probation Officers for their retaliation. Mr. Smith had also filed a complaint against laboratory technician Mike Soto for slander after Mr. Soto tested Mr. Smith positive for drugs when he was clean for all drugs.[2] (Amended Complaint, Doc. 14-1 at ¶¶ 18-20.) Mr. Smith contends his lawsuit against Mr. Soto also included claims of corruption against Probation and Parole, District Court Judge Reynolds, the Department of Corrections, child protective services, the public defenders office, LCDC, and Lewis and Clark County prosecutors. (Amended Complaint, Doc. 14-1 at ¶ 25.)

         Mr. Smith also alleges Captain Grimmis, the DOC Director, and Probation Officers Loungee, Thennis, and Jenicek conspired to retaliate against him for filing complaints and “overrode him” from LCDC to Montana State Prison (MSP). This override occurred during criminal proceedings in Helena which Mr. Smith had been challenging throughout the prior year over numerous court hearings. He claims the district court proceedings had not yet been adjudicated.[3]

         He also contends Captain Grimmis, the Probation officers, and the DOC Director retaliated against him in conspiracy with MSP and MDIU unit manager Michele Steyh. Mr. Smith alleges that on November 3, 2016, [4] he was transported to MSP where Internal Prison Security (IPS) officers attacked him, shackled his legs, and placed two sets of handcuffs on him. He claims that in this process the IPS officers sprained his wrist and his left pointer finger was bent sideways, seemingly dislocated, and replaced in a back and forth motion. (Amended Complaint, Doc. 14-1 at 22.)

         Mr. Smith alleges that upon his entry to MSP, his property was taken including his legal work involving his pending criminal proceedings and civil complaints. Mr. Smith's deadline to submit his witnesses and exhibits in his lawsuit against Mike Soto was mid November 2016. (Amended Complaint, Doc. 14-1 at ¶ 25.) On November 10, 2016, Mr. Smith was transported back to LCDC for a hearing in state district court. At the jail, Mr. Smith was able to handwrite his witness and exhibit list and file it with the state clerk of court. (Amended Complaint, Doc. 14-1 at ¶ 26.)

         Mr. Smith was returned to MSP on November 10, 2016 and placed in the Martz Diagnostic Intake Unit (MDIU) where he spent a week in solitary confinement and was denied envelopes and writing materials. He claims he had not broken any rules and was not under investigation. He alleges his legal work was again taken from him and searched outside his presence. When it was returned, numerous documents were missing including notes and information pertaining to Mr. Smith's pending criminal proceedings and civil complaints. Mr. Smith claims this information included hundreds of names and details involving numerous cases that were complicated and convoluted. Mr. Smith requested information from Defendant Steyh regarding his placement in solitary confinement and his missing legal work and expressed his intent to file grievances and a civil complaint. He contends Defendant Steyh gave Mr. Smith a direct order to “leave it alone.” (Amended Complaint, Doc. 14-1 at ¶¶ 25-29.)

         Mr. Smith was later transported from MDIU to LCDC for another hearing. Upon returning to MDIU, Mr. Smith's legal work was again taken and searched outside his presence. When his legal work was returned, numerous documents were again missing and Mr. Smith was required to send his legal work out of the prison. He mailed his documents to an attorney who never returned them to Mr. Smith despite multiple requests. This lost legal work allegedly contained Mr. Smith's notes regarding details of events of witnesses, illegal acts of prosecutors, public defenders, district court judges, probation officers, Missoula River Drug Task Force agents, city police, sheriff deputies, child protective services, and alleged victims. He claims the information would have led to discoverable material evidence that could have exonerated Mr. Smith of multiple felony charges and contemporaneously implicated the aforementioned agencies and individuals of corruption and crimes. He alleges the loss of his legal work was done at the direction of Defendant Steyh. (Amended Complaint, Doc. 14-1 at ¶ 30.)

         Mr. Smith also claims that he submitted numerous medical requests stating his finger was not healing, that it was causing him pain and discomfort, and that he was unable to close his hand due to the limited range of motion. Mr. Smith was seen by Dr. Paul Reese and Amber Edwards. He requested to see a specialist and complained to the DOC Clinical Services Division. He claims that nothing has been done to address his injury. Mr. Smith is a professional tattoo artist and creates artwork and the injury to his left pointer finger is a disability to his livelihood. (Amended Complaint, Doc. 14-1 at ¶ 31.)

         C. ANALYSIS

         1. Retaliation

         A retaliation claim has five elements. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). First, a plaintiff must allege that the retaliated-against conduct is protected. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). Filing grievances and complaints are protected activities. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005)(“Of fundamental import to prisoners are their First Amendment rights to file prison grievances and to pursue civil rights litigation in courts.”). Second, a plaintiff must allege defendants took adverse action against him. Rhodes, 408 F.3d at 567. The adverse action need not be an independent constitutional violation. Pratt, 65 F.3d at 806. “[T]he mere threat of harm can be an adverse action . . . ” Brodheim, 584 F.3d at 1270 (emphasis in original). Third, a plaintiff must allege a causal connection between the adverse action and the protected conduct. Watison, 668 F.3d at 1114. Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from which retaliation can be inferred is sufficient to survive dismissal. Watison, 668 F.3d at 1114 (citing Pratt, 65 F.3d at 808 (“[T]iming can properly be considered as circumstantial evidence of retaliatory intent.”)). Fourth, a plaintiff must allege the “official's acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568 (internal quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm.” Brodheim, 584 F.3d at 1269. However, that harm must be “more than minimal.” Rhodes, 408 F.3d at 568 n. 11. That the retaliatory conduct did not chill the plaintiff from suing the alleged retaliator does not defeat the retaliation claim at the motion to dismiss stage. Rhodes, 408 F.3d at 569. Fifth, a plaintiff must allege “that the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution . . . ” Rizzo, 778 F.2d at 532; Watison, 668 F.3d at 1114-15.

         Mr. Smith raises what are construed as three retaliation claims in his Amended Complaint. First, he alleges Probation Officers Loungee, Thennis, and Jenicek threatened and punished his family, friends and witnesses in retaliation for his litigation activities. (Doc. 14-1 at ¶ 41.) Secondly, he contends the DOC Director, Probation Officers Loungee, Thennis, and Jenicek, and Captain Grimmis “overrode” him from LCDC to MSP during critical stages of his civil and criminal proceedings. (Doc. 14-1 at ¶ 39.) Third, he contends Defendant Steyh collaborated with the DOC Director, Probation Officers Loungee, Thennis, and Jenicek, and Captain Grimmis to place Mr. Smith in solitary confinement upon reception to MSP, have him assaulted, deny him access to envelopes and writing materials, and take his legal work in an attempt to freeze his ability to litigate and/or defend himself in pending legal actions. (Doc. 14-1 at ¶ 40.)

         a. Threatening and Violating Friends, Family and Witnesses

         Mr. Smith makes only vague and speculative allegations that his friends, family and witnesses were allegedly threatened and/or violated by Probation Officers Loungee, Thennis, and Jenicek in 2015 and 2016 in retaliation for Mr. Smith's litigation activities. These allegations are not sufficient to state a potentially colorable retaliation claim against these defendants. His vague and conclusory allegations against these officers amount to, at most, the “formulaic recitation of the elements” of retaliation which is insufficient to state a viable claim. He makes only conclusory statements and provides no factual details to support this claim.

         In addition, these claims are not sufficiently related to the other claims in Mr. Smith's Amended Complaint. Federal Rule of Civil Procedure 18(a) allows a party asserting a claim for relief as an original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as alternate claims, numerous claims against an opposing party. But Mr. Smith may not bring unrelated claims against unrelated parties in a single action. Fed.R.Civ.P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

         Mr. Smith may bring a claim against multiple defendants so long as (1) the claims arise out of the same transaction or occurrence, or series of transactions and occurrences, and (2) there are commons questions of law or fact. Fed.R.Civ.P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) will the Court review the additional claims to determine if they may be joined under Rule 18(a), which permits the joinder of multiple claims against the same party. The Court must be able to discern a relationship between Mr. Smith's claims or there must be a similarity of parties. The fact that all of Mr. Smith's allegations are based on the same type of constitutional violation (i.e., retaliation by different actors on different dates, under different factual events) does not necessarily make claims related for purposes of Rule 18(a).

         This relationship cannot be established regarding Mr. Smith's allegations against Probation Officers Loungee, Thennis, and Jenicek. The Court cannot discern a sufficient connection between these allegations of retaliation and the other allegations in the Amended Complaint. Mr. Smith's claims in his original complaint were limited to incidents which occurred at Montana State Prison in November 2016. Mr. Smith's claims of retaliation against the probation officers are not sufficiently related to his allegations regarding his placement at MSP. These claims do not arise out of the same transaction or occurrence or series of transactions and occurrences as the November 2016 placement of Mr. Smith in MSP and the assault at MSP. There are completely separate factual questions. Mr. Smith is attempting to bring in unrelated claims against unrelated parties.

         Mr. Smith's claims against the probation officers for allegedly threatening other individuals in retaliation for his litigation activities are too vague and conclusory to state a claim and they are not properly joined in this action. This claim as alleged in Paragraph 41 of the Amended Complaint should be dismissed.

         b. Transfer from LCDC to MSP

         Similarly, Mr. Smith presents no factual allegations to support his speculative and conclusory allegation that he was transferred from LCDC to MSP in retaliation for his litigation activities. According to a March 12, 2019 Order from the Montana Supreme Court,

Smith is incarcerated in Montana State Prison, and is currently serving two sentences upon revocation and two 2017 sentences arising from three district courts. On March 24, 2016, the Butte-Silver Bow County District Court revoked Smith's ten-year suspended sentence from 2009 and imposed a five-year commitment to the DOC for criminal possession of dangerous drugs (Butte-Silver Bow County sentence upon revocation). On October 26, 2016, the Jefferson County District Court revoked Smith's sentences for theft, criminal endangerment, and criminal possession of dangerous drugs and imposed a five-year DOC term to run concurrently with his Butte-Silver Bow County 03/12/2019 Case Number: OP 18-0674 sentence upon revocation (Jefferson County sentence upon revocation). On February 14, 2017, the Lewis and Clark County District Court sentenced Smith to a five-year DOC term with one year suspended for criminal possession of dangerous drugs, to run consecutively to the Butte-Silver Bow County sentence upon revocation and Jefferson County sentence upon revocation. On the same day, the Lewis and Clark County District Court also sentenced Smith for bail jumping and imposed a ten-year suspended sentence to run consecutively to all other sentences.

Smith v. Guyer, Montana Supreme Court OP 18-0674 (March 12, 2019). Mr. Smith was transferred from LCDC approximately nine days after his Jefferson County sentence was revoked. He alleges no facts to support his speculation that he was transferred due to his litigation activities. His vague and conclusory allegations are again, simply the “formulaic recitation of the elements” of retaliation which is insufficient to state a viable claim. He simply alleges that he filed a number of lawsuits and then nine days after his Jefferson County sentence was revoked he was transferred to MSP. Such conclusory allegations provide no plausible basis for inferring that his transfer was done in retaliation for his exercising his First Amendment rights. Iqbal, 556 U.S. at 680-84 (citations omitted). In other words, there is no indication that Mr. Smith's protected conduct-his litigation activity was the substantial or motivating factor behind his transfer to prison.

         “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. (quoting Iqbal, 556 U.S. at 678). “‘Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.' ” Eclectic Properties E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). “When considering plausibility, courts must also consider an ‘obvious alternative explanation' for defendant's behavior.” Id. (quoting Iqbal, 556 U.S. at 678).

When faced with two possible explanations, only one of which can be true and only one of which results in liability, plaintiffs cannot offer allegations that are merely consistent with their favored explanation but are also consistent with the alternative explanation. Something more is needed, such as facts tending to exclude the possibility that the alternative explanation is true, in order to render plaintiffs' allegations plausible.

Id. at 996-97 (quoting In re Century Aluminum Co. Secs. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013)).

         Here, Mr. Smith alleges his transfer to MSP was done in retaliation for his litigation activities. An equally if not more plausible alternative explanation is that Mr. Smith was transferred because his Jefferson County sentence was revoked. Mr. Smith presents absolutely no facts to plausibly suggest that the transfer was due to his litigation activities.

         Further, he provides insufficient allegations to connect this transfer to any of the Defendants named in this claim. Mr. Smith names the DOC Director, the Probation Officers, and Jason Grimmis with regard to this claim but he concedes that his allegations of conspiracy against the DOC Director and the Probation Officers alleged in Paragraphs 21-23 of the Amended Complaint are insufficient to state a claim. (Reply, Doc. 32 at 3.) In addition, his allegations are insufficient as alleged against ...


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