United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
P. DONOHUE UNITED STATES MAGISTRATE JUDGE.
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.
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.
GENERAL LEGAL STANDARDS
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).
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.
Section 1983 standard
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
Screening of plaintiff's second amended
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.
Allegations against unspecified defendants
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.
Claims related to other inmates
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.
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. 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
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.
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).
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.
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.
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).
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).
Properly pleaded retaliation claims
construing plaintiff's SAC in his favor, the following
retaliation claims should survive screening.
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
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.
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.
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.
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.
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.
Inadequately pleaded retaliation claims
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.
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
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.
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
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
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.
alleges that Deputy Fletcher improperly infracted him.
Id. at 33. But he does not allege that she was