United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
KAREN L. STROMBOM, Magistrate Judge.
Before the Court is Defendants' Motion to Dismiss. Dkt. 20. Plaintiff, Heather Opel, opposes the motion. Dkt. 25. Ms. Opel is a Washington State inmate currently housed at the Washington Corrections Center for Women (WCCW). Ms. Opel alleges that her due process rights were violated in a disciplinary hearing when the hearings officer turned off the tape recorder and told her not to appeal. Dkt. 7, p. 3. Plaintiff also states that her due process rights were violated by the Superintendent not overturning her infraction on appeal. Id. Further, Ms. Opel claims that she was harassed by staff after she returned from being in segregation and that her rights were violated when prison officials would not let her room with the person of her choice, inmate Van Hooser. Id. Ms. Opel also says that she is being harassed by certain prison staff who refer to a barrier used to keep offenders out of a certain area as "Opel Gate." Dkt. 7, p. 3. In the relief section of the complaint Ms. Opel states that she is seeking relief from discrimination based on "appearance, " but she does not explain what she means by the term "appearance." Dkt. 7, p. 4.
STATEMENT OF FACTS
For the purposes of this motion, the allegations contained in Ms. Opel's complaint (Dkt. 7) are accepted as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On January 6, 2012, Lieutenant Cooper, who is not a named defendant, sent Ms. Opel to segregation after she was infracted for violating two prison rules. Dkt. 7, p. 6 (letter to Mr. Caldwell). The violations were for rule number WAC 137-25-030-709 (709) (being in an unauthorized area), and rule number WAC 137-28-220-244 (244)(unauthorized display of sexual affection). Id. The 709 is a serious infraction while the 244 is a general infraction. In the infraction report the infracting officer states:
I walked over to the booth area to check on the status of the booth worker and I observed offender Opel, Heather doc#845115 and offender VanHooser doc#327585 inside the equipment booth kissing each other mouth to mouth. I asked for the offenders ID's and then called the shift Lt.
Dkt. 7, p. 8.
Ms. Opel alleges that during her disciplinary hearing the hearings officer, who is not a named defendant, turned off the tape recorder and told her not to try filing an appeal. Dkt. 7, p. 3. Ms. Opel states that after the hearing the infracting officer changed his statement and spoke to her Custody Unit Supervisor, Defendant Rosendale. Id. Ms. Opel alleges that she filed a late appeal and that the Superintendent, Jane Parnell, denied the appeal. Dkt. 7, p. 3. Ms. Opel then sent a letter to the Secretary of the Department of Corrections asking that the infraction be overturned. Dkt. 7, p. 12. Ms. Opel does not disclose if the infraction was ever overturned.
Ms. Opel attached another infraction that she received on January 6, 2012, to her complaint. This is the same day that Ms. Opel was removed from the gym and taken to segregation. In the second infraction report a correctional officer states that a search of the gym area disclosed an altered 32 oz mug and two items of inmate to inmate correspondence in Ms. Opel's work area. Dkt. 7, p. 15. This infraction is apparently attached to the complaint as support for Ms. Opel's allegations regarding discrimination or harassment.
Ms. Opel also attached a number of grievances to her complaint. In grievance I.D. No. 13543861 Ms. Opel complains because she was told to return to her cell when she was caught brushing her teeth in the bathrooms during a tier check at 11:00 P.M. Dkt. 7, p. 17. In grievance, I.D. No. 12520601, Ms. Opel complains that tier representatives made an announcement that involved her situation regarding a room move and that she was embarrassed. Dkt. 7, p. 19. The prison response to this grievance offered an apology about a miscommunication between defendant Rosendale and the tier representatives. Dkt. 7, p. 19. The next grievance attached to the complaint is, I.D. No. 12520624. In this grievance Ms. Opel states that she accidently placed outgoing legal mail in the regular mail box and the officer refused to return the letter to her. Dkt. 17, p. 20.
In grievance I.D. No 12520621 Ms. Opel states that she left her cell after hours to use the bathroom and was told to return to her cell. When she stated that she needed to use the bathroom she was told to proceed "to the restroom now." Dkt. 17, p. 22. Ms. Opel was given a general infraction because of this incident and she attached that infraction to the complaint. Dkt. 7, p. 27. The infracting officer stated that there had been two announcements that the day room was closed and Ms. Opel continued to stand at the bottom of the stairs talking to offender Van Hooser. After the third announcement Ms. Opel stood in her door talking to offender Van Hooser. When the officer told her to stop her conversation and go into her room plaintiff replied that she was going to the bathroom and that while walking to the bathroom plaintiff continued to talk to offender Van Hooser. Dkt. 7, p. 27. The officer reports on the infraction form that it was 11:41 p.m. when this incident occurred. Id.
In another grievance Ms. Opel complained of discrimination because her request to change roommates was denied. Dkt. 7, p. 25. The response to this grievance informed her that room moves were part of classification and could not be grieved. Ms. Opel also attached a kite to her complaint in which Defendant Rosendale denied plaintiff's request to room with offender Van Hooser. Dkt. 7, p. 26.
Ms. Opel attaches another general infraction where she was infracted on April 30, 2012, for filling her hot water bottle from the tap on a hot water machine. Dkt. 7, p. 28. In the infraction defendant Troudt states that there is a sign telling the inmates "[d]o not fill hot water bottles." Id. In a letter to Officer Troudt Ms. Opel states that there were other people in line doing the same thing but that they were not infracted. Dkt. 7, p. 29.
In a letter to defendant Labon Ms. Opel complains that after a soccer game when the lower tier showers were full she noticed other offenders were being allowed to use the upstairs showers but that when she asked to use the upstairs shower she was told to wait until a shower was available. Dkt. 7, p. 30. In this letter Ms. Opel states that she feels that she is being targeted since she was released from segregation. Id.
Defendants move to dismiss and raise five arguments which are summarizes as follows:
1. Insufficient factual allegation against any named defendant.
2. There is no liberty interest in a disciplinary hearing that does not result in loss of good time.
3. Failure to state an Equal Protection claim because plaintiff does not claim to be part of a protected class.
4. Qualified immunity.
5. Stay of discovery.
Dkt. 20, ...