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Brennan v. Aston

United States District Court, W.D. Washington, Seattle

June 14, 2018

RONALD BRENNAN JR., Plaintiff,
v.
ANTHONY ASTON, et al., Defendants.

          REPORT AND RECOMMENDATION

          JAMES P. DONOHUE UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff is a Snohomish county pretrial detainee who is proceeding pro se and in forma pauperis in this 42 U.S.C. § 1983 civil rights action against 63 employees of the Snohomish County Jail. See Dkt. 27. Upon screening his amended complaint, the Court determined that although plaintiff alleged some viable claims, many of his factual allegations did not amount to constitutional violations. Dkt. 25. The Court granted plaintiff leave to file a second amended complaint (“SAC”), which plaintiff has done. Dkt. 27. Plaintiff also filed a “Motion to Add Supplemental Information to Amended Complaint.” Dkt. 39.

         Like his first amended complaint, his SAC alleges some viable claims that should survive screening, but fails to state claims against many of the defendants. Because plaintiff already has been advised of the legal standards and given an opportunity to amend, the Court recommends that his deficient claims be dismissed with prejudice and without leave to amend, and that his properly pleaded claims be served on the remaining defendants. The Court also recommends that plaintiff's motion to supplement be granted in part and denied in part, as explained below.

         II. GENERAL LEGAL STANDARDS

         A. Screening

         Once a complaint is filed in forma pauperis, the Court must dismiss it prior to service if it “fails to state a claim on which relief can be granted.” 28 U.S.C. § 1915(e)(2)(b)(ii); see Talley v. Jackson, 2015 WL 3796339, at *1 (W.D. Wash. June 18, 2015) (citations omitted). To avoid dismissal, 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, 664 (2009). The factual allegations must be “enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint may be dismissed if it lacks a cognizable legal theory or states insufficient facts to support a cognizable legal theory. Zixiang v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).

         The Court holds pro se plaintiffs to less stringent pleading standards than represented plaintiffs and liberally construes a pro se complaint in the light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Nevertheless, § 1915(e) “not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1229 (9th Cir. 2000) (en banc). When dismissing a complaint under § 1915(e), the Court gives pro se plaintiffs leave to amend unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         B. Section 1983 standard

         To sustain a § 1983 civil rights claim, plaintiff must show (1) he suffered a violation of rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under color of state or federal law. West v. Atkins, 487 U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To satisfy the second prong, plaintiff must allege facts showing how individually named defendants caused or personally participated in causing the harm alleged in the complaint. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). A plaintiff may not hold supervisory personnel liable under § 1983 for constitutional deprivations under a theory of supervisory liability. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

         III. DISCUSSION

         A. Screening of plaintiff's second amended complaint

         Plaintiff's SAC raises a host of complaints against a long list of Snohomish County Jail employees. Below, the Court discusses each type of claim and the relevant factual allegations. Given the length of plaintiff's SAC, the Court does not discuss each and every allegation. Nevertheless, the Court has carefully considered them all and determined that any factual allegations that are not specifically discussed herein fail to state a claim upon which relief may be granted. The claims that should be allowed to go forward are summarized at the end of this section.

         1. Allegations against unspecified defendants

         Throughout plaintiff's SAC, he complains about unspecified defendants. For example, he alleges that after he files a public disclosure request, “there are a few [staff members] that continue to approach me and demand to know why I have filed this request about them.” Dkt. 27-1 at 1 (emphasis added). As another example, plaintiff alleges that “the staff here at the Snohomish County Corrections continue to retaliate against me . . . .” Id. at 55 (emphasis added); see also Id. at 57 (allegation that “some deputies” have been trying to have him removed from law library access). To state a § 1983 claim, a plaintiff must allege how individually named defendants violated his constitutional rights. Arnold, 637 F.2d at 1355. To the extent plaintiff does not make specific factual allegations against individually named defendants, he fails to state a claim upon which relief may be granted.

         2. Claims related to other inmates

         Several times in his SAC, plaintiff complains about actions taken against other inmates. E.g., Dkt. 27-1 at 33 (alleging that Deputy Nicholas used excessive force against another inmate). Plaintiff can only bring claims for violations of his own constitutional rights. Therefore, any claims related to other inmates should be dismissed with prejudice and without leave to amend.

         3. Grievances

         Plaintiff complains that Supervisor Kimberly Parker placed him on grievance restriction and told him classification staff would provide him three grievance forms a week, but he did not always receive his forms.[1] Dkt. 27-1 at 52-54. Plaintiff does not identify which individual staff members failed to provide him the forms. Plaintiff also complains, though out his SAC, about how grievances were answered and that they were not answered.

         Prisoners have a First Amendment right to meaningfully access the courts and to file prison grievances. See Lewis v. Casey, 518 U.S. 343, 361-62 (1996); Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). Policies and regulations that impinge on First Amendment rights may be upheld only if they are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987) (setting forth four-factor test to determine whether such policies and regulations should be upheld). Prisoners do not, however, have standalone due process rights to a particular administrative grievance process. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Allen v. Wood, 970 F.Supp. 824, 832 (E.D. Wash. 1997); Stewart v. Block, 938 F.Supp. 582, 588 (C.D. Cal. 1996).

         Plaintiff should be allowed to proceed on his First Amendment claim against Supervisor Parker for placing him on grievance restriction. He alleges that he was never infracted for filing frivolous grievances and that he was placed on restriction even though he used the grievance system in good faith to raise legitimate issues. Dkt. 27-1 at 53. Plaintiff, however, should not be permitted to proceed against Supervisor Parker for the unnamed classification staff's failure to timely provide him with his allotted grievance forms. He does not allege that Supervisor Parker deprived him of the grievance forms or that she directed others to do so. See Taylor, 880 F.3d at 1045 (supervisor only liable for constitutional violations of subordinates if she participated in or directed the violations, or knew but failed to act to prevent them).

         Plaintiff's complaints related to how his grievances were processed should be dismissed with prejudice and without leave to amend. As there is no right to any particular grievance process, it is impossible for plaintiff's due process rights to have been violated by ignoring his grievances, failing to properly process them, or responding to them in a way that was unfavorable to plaintiff.

         4. Classification issues

         Plaintiff complains about his classification and housing within the jail. See, e.g., Dkt. 27-1 at 43, 49-51, 57, 79-81, 83, 87. The Fourteenth Amendment requires due process before individuals are deprived of protected liberty or property interests. A prisoner, however, does not have a liberty interest in a particular classification status. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (citing Moody v. Daggett, 429 U.S. 78 (1976)). Thus, plaintiff's challenge to how he has been classified and where he has been housed does not implicate federal constitutional concerns. These claims should be dismissed with prejudice and without leave to amend.

         5. Retaliation

         Plaintiff alleges numerous defendants retaliated against him. See, e.g., Dkt. 72-1 at 1 (listing 24 defendants under the heading “Staff Retaliation”). The First Amendment protects prisoners' right to file grievances and pursue civil rights litigation in federal court without retaliation. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Silva v. DiVittorio, 658 F.3d 1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

         “The prisoner must show that the type of activity in which he was engaged was constitutionally protected, that the protected conduct was a substantial or motivating factor for the alleged retaliatory action, and that the retaliatory action advanced no legitimate penological interest.” Quiroz v. Horel, 85 F.Supp.3d 1115, 1124 (N.D. Cal. 2015) (citing Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997)); see also Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (plaintiff bears burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains). Additionally, “a plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

         a. Properly pleaded retaliation claims

         Liberally construing plaintiff's SAC in his favor, the following retaliation claims should survive screening.

         Plaintiff alleges that Deputy Nicholas threatened to infract him for requesting a kite because he was on kite restriction; in fact, plaintiff was not on kite restriction. Dkt. 27-1 at 19-21. Plaintiff thus alleges that Deputy Nicholas took an adverse action (threatening him) because he requested a kite and that the threat did not reasonably advance a legitimate correctional goal because plaintiff was not on kite restriction. Such a threat would chill an inmate's First Amendment rights.

         Plaintiff alleges that although he used the grievance system in good faith in an attempt to hold Deputy Nicholas responsible for violating his rights, the deputy infracted him for filing false and harassing grievances. Id. at 27-29. Plaintiff further alleges that two days after Snohomish County Corrections notified Deputy Nicholas that plaintiff filed public disclosure requests about him, the deputy infracted him again for the same fabricated reason. Id. at 29. Deputy Nicholas's alleged actions would chill an inmate's First Amendment rights and if the infractions were fabricated, as plaintiff alleges, they would not reasonably advance a legitimate correctional goal.

         Plaintiff alleges that Deputy Hovey began searching his cell and legal work a few days after he filed a public disclosure request about her. Id. at 31. He also alleges that she read a grievance he filed against her and the civil docket sheet in this case that lists her as a defendant, and then she proceeded to infract him for having a piece of tape in his cell. Id. These allegations are sufficient to state a retaliation claim against Deputy Hovey.

         Plaintiff alleges that after he filed a public disclosure request about Deputy Machyo, the deputy “tossed, and tore up” his cell. Id. at 45. Plaintiff allegedly asked Deputy Machyo if he could speak with a sergeant about the condition of his cell, and Deputy Machyo “screamed at me that if I wanted to file a lawsuit against him or file public disclosure about him, that he took it as a threat and he had the right to protect himself from me.” Id. at 47. Plaintiff states a retaliation claim.

         Plaintiff alleges that on April 5, 2018, Deputy Crew woke him up at 3:00 a.m. to ask if he wanted his recreation time but then made him wait an hour before escorting him to the shower. Id. at 59. After his recreation time was over, plaintiff alleges, Deputy Crew escorted him back to his cell with such a tight grip that it caused “extreme pain” and left bruises for over a week. Id. Plaintiff also alleges Deputy Crew “grabbed the handcuff chain and twisted it causing the cuffs to click tighter and dig into my wrists.” Id.; see also Id. at 61-65. Plaintiff alleges that after he was in his cell, her overhead Deputy Crew complaining to another deputy that plaintiff had recently filed a grievance against him. Id. at 61. These allegations are sufficient to state a retaliation claim against Deputy Crew.

         Plaintiff alleges that Lieutenant Moll authorized deputies to wake him up in the middle of the night to receive grievance and kite responses because he files so many of them. Id. at 71. He alleges that Deputies Gross, Adepoju, Ohipeni, Ali, Hansen, Hart, Wilson, Freeman, and Crew, then increased how often they were waking him up in the night, which interfered with his sleep. Id. at 71-75. Plaintiff also suggests that there was no legitimate penological purpose for waking him up when he alleges that defendants woke him up in situations when other inmates were not woken up. See Id. at 73. These allegations are sufficient to state retaliations claims against these defendants.

         b. Inadequately pleaded retaliation claims

         Even liberally construing the SAC in plaintiff's favor, the following allegations fail to state claims upon which relief may be granted and should be dismissed with prejudice and without leave to amend.[2]

         Plaintiff makes allegations against Deputy Shari Singh and Sergeant Roxanne Marler related to their handling of his alleged medical emergency in August 2017. Dkt. 27-1 at 3-9. Plaintiff does not allege facts supporting the inference that Deputy Singh or Sergeant Marler acted because he engaged in protected conduct.

         Plaintiff alleges that Deputy Nicholas searched his cell and wrongly infracted him after he questioned the deputy about having his criminal case file open in an area where others could read it. Id. at 11-12. Plaintiff's questioning of Deputy Nicholas was not protected conduct and therefore cannot serve as the basis for a retaliation claim. Plaintiff also alleges that Deputy Nicholas interfered with his attempts to discuss his medication with a nurse and then served him with four major rule violations the following night. Id. at 13-17. Plaintiff's discussion with the nurse was not protected conduct, and moreover, the allegations do not plausibly support the inference that Deputy Nicholas acted because of plaintiff's protected conduct. Plaintiff further alleges that Deputy Nicholas comes to his cell door to intimate him, but he does not plausibly allege facts suggesting that Deputy Nicholas does this because plaintiff filed grievances against him. Id. at 21.

         Plaintiff alleges that Deputy Singh wrongly infracted and locked him down after he questioned her for not giving him his recreation time. Id. at 13. He does not plausibly allege that Deputy Singh acted because he engaged in protected conduct.

         Plaintiff alleges that Classification Specialist Wafstet, who copies his legal work for him, has read his court filings and made comments indicating that she knows she is named as a defendant in this lawsuit. Id. at 23. Plaintiff alleges that Classification Wafstet infracted him for improperly using a legal envelope to mail letters to his power of attorney. Id. at 23-24. Plaintiff alleges that Classification Wafstet told him she did not want to infract him but was told to do so by Supervisor Parker and Classification Specialist Mitchell. Id. at 25. Plaintiff alleges that Classification Mitchell held a hearing on the infraction and sanctioned him to lose two days good conduct time. Id. Plaintiff alleges that Classification Mitchell was not impartial, and “I feel that he used his position of authority to take my good conduct time in retaliation for some of the kites that I had been sending to him.” Id. These allegations do not amount to a retaliation claim against Classification Wafstet, Supervisor Parker, or Classification Mitchell. Allegedly, Classification Wafstet did not act because plaintiff engaged in protected conduct but because she was told to infract him. Plaintiff does not allege facts supporting the inference that Supervisor Parker directed Classification Wafstet to infract him because he engaged in protected conduct, and his “feeling” that Classification Mitchell acted because he submitted kites is not enough to raise the right to relief above the speculative level.

         Plaintiff alleges that Deputies Ryakhovskiy and Gloor have been excessively searching his cell and both told him that Deputy Nicholas was their “mentor.” Id. at 31. Plaintiff, however, fails to allege facts supporting the inference that Deputies Ryakhovskiy and Gloor acted because plaintiff engaged in protected conduct.

         Plaintiff alleges that Deputy Fletcher improperly infracted him. Id. at 33. But he does not allege that she was ...


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