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Strohmeyer v. Belanger

United States District Court, D. Nevada

July 2, 2019

JEREMY STROHMEYER, Plaintiff,
v.
K. BELANGER, et al., Defendants.

          ORDER RE: ECF NO. 120

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. The events giving rise to this action took place while Plaintiff was housed at Lovelock Correctional Center (LCC) and Ely State Prison (ESP). Plaintiff filed an original complaint on December 18, 2014, and then sought leave to file an amended complaint. (ECF Nos. 1-1, 7.) District Judge Robert C. Jones granted the motion and screened the amended complaint, dismissing it in its entirety with prejudice. (ECF No. 8.) Plaintiff appealed. (ECF No. 11.) On August 5, 2016, the Ninth Circuit Court of Appeals issued its memorandum decision affirming in part, reversing in part, vacating in part, and remanding Judge Jones' disposition on the amended complaint. (ECF No. 15.) District Judge Jones then gave Plaintiff 30 days to file a second amended complaint (SAC). (ECF No. 19.) He was given several extensions of time to file the SAC. He filed the SAC on February 6, 2017. (ECF No. 33.) On March 27, 2018, District Judge Jones issued an order screening the SAC, permitting some claims to proceed and dismissing others with and without leave to amend. (ECF No. 44.) The case was then stayed while the parties participated in an early mediation conference, which was ultimately unsuccessful. (ECF Nos. 44, 48.) On January 28, 2019, Plaintiff filed a motion for leave to file a third amended complaint (TAC). (ECF No. 110.) On February 15, 2019, the undersigned granted Plaintiff's motion and stayed the discovery and dispositive motion deadlines. (ECF No. 119.) The TAC is docketed at ECF No. 120, and the court will now screen the TAC under 28 U.S.C. § 1915A.

         II. LEGAL STANDARD

         Under 28 U.S.C. § 1915A, “[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). In conducting this review, the court “shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1)-(2).

         Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915A(b)(1) tracks that language. As such, when reviewing the adequacy of a complaint under these statutes, the court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted).

         The court must accept as true the allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and citation omitted).

         A complaint must contain more than a “formulaic recitation of the elements of a cause of action, ” it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more … than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         A dismissal should not be without leave to amend unless it is clear from the face of the complaint that the action is frivolous and could not be amended to state a federal claim, or the district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).

         III. DISCUSSION

         Plaintiff's complaint names the following defendants: Kelly Belanger (LCC Caseworker), David Bequette[1] (LCC Mailroom Officer on February 15, 2013); Michael Bobadilla (Inmate); David Carpenter (LCC Sergeant); Christopher Cartier (LCC Correctional Officer); Dwayne Deal (LCC Assistant Warden/Grievance Coordinator/Offender Management Administrator); S.L. Foster (NDOC Deputy Director); Michelle Gilder (LCC Grievance Coordinator); Donna Jenkins (aka Donna Widmar, aka Lisa Widmar, aka Lisa Jenkins; LCC Correctional Officer); James Keener (LCC Correctional Officer and Investigator); K. Kirkpatrick (Office of Inspector General employee); Robert LeGrand (LCC Warden); Keith Miranda (LCC Correctional Officer); Valaree Olivas (LCC Lieutenant); Charles Schardin (Acting NDOC Deputy Director); Adam Vallaster (LCC Correctional Officer); Michael Ward (LCC Lieutenant); and John Whiting (LCC Correctional Officer). The TAC also names NDOC[2], Unknown Inspector General (from December 18, 2012 to March 18, 2015); unknown Inspector General; unknown mailroom staff from December 30, 2012 to April 15, 2013. (ECF No. 120 at 1-9.)

         A. Count I

         Plaintiff alleges that on December 18, 2012, inmate Bobadilla assaulted Plaintiff without provocation in the LCC dining hall. Plaintiff contends that unbeknownst to him, Bobadilla had been involved in a fight with another inmate who was injured just two days before. Inmate Breland was sitting next to Plaintiff in the dining hall when Bobadilla attacked Plaintiff, and jumped in to stop the attack, which resulted in a fight between Breland and Bobadilla.

         Plaintiff alleges that Jenkins encouraged Bobadilla to attack Plaintiff in retaliation for Plaintiff filing grievances against her and her friends. Plaintiff also claims that Vallaster abandoned his post in the dining room, leaving Plaintiff defenseless, and that Whiting was not watching the dining hall as he should have been. Plaintiff claims that all of these Defendants knew about the prior fight Bobadilla was involved in. Plaintiff further avers that the attack was set up, encouraged, and permitted by Jenkins, Olivas and Keener because they did not like him, and in retaliation for previous grievances filed. (ECF No. 12- at 25-28.) Plaintiff claims that Bobadilla made up a story about Plaintiff stabbing him with a pencil, that Plaintiff contends Bobadilla actually planted in the dining hall. (Id. at 27.)

         As with the second amended complaint, Plaintiff states a colorable Eighth Amendment claim for failure to protect based on allegations that Defendants knew of or created a risk to Plaintiff's safety and then failed to protect Plaintiff from that risk. This claim will proceed against Jenkins, Vallaster, Whiting, Olivas and Keener.

         Count I also contains allegations concerning Jenkins alleged false report; Ward's alleged destruction of evidence (the pencil); Olivas filing a false notice of charges against him; Keener suppressing or destroying evidence of Plaintiff's innocence; and his placement in solitary confinement for an extended period of time under terrible conditions. (ECF No. 120 at 26-29.) These allegations overlap with other claims asserted below, and will be discussed in connection with those claims.

         B. Count II

         In Count II, Plaintiff alleges that between December 18 and 20, 2012, Jenkins filed a false report against him, via email from her home, that falsely accused Plaintiff of starting the fight and allegedly stabbing Bobadilla with a pencil in order to have him punished for a crime he did not commit. (ECF No. 120 at 26, 30, 32.)

         On December 18, 2012, Plaintiff alleges that Ward destroyed fingerprint and possible DNA evidence on the pencil by fondling, twirling and playing with the pencil. (ECF No. 120 at 9-10, 27, 32.)

         Then, on December 20, 2012, Olivas filed a falsified notice of charges against Plaintiff for assault and battery to have him wrongfully punished for a crime he did not commit without any meaningful investigation. (ECF No. 120 at 10, 27, 30, 32.)

         Plaintiff contends that between December 18, 2012 and March 6, 2013, LCC Investigator Keener suppressed or destroyed evidence of Plaintiff's innocence by withholding or destroying: photos of Bobadilla's alleged injuries from the previous fight; documents and other evidence of Bobadilla's previous fight; medical records of Bobadilla from both incidents; the pencil; and exculpatory witness statements. (ECF No. 120 at 10, 27, 30.) He similarly alleges that LeGrand withheld and refused to respond to requests for documentary evidence. (Id. at 32.)

         On March 30, 2013[3], Carpenter violated Plaintiff's rights during the disciplinary hearing because: Plaintiff was not given adequate notice of the hearing; during the hearing Carpenter did not disclose photos and medical records of Bobadilla's alleged injuries; Carpenter did not produce the alleged weapon; Carpenter did not disclose the results of Keener's investigation; Carpenter did not disclose the evidence relied on in the written disposition; Plaintiff was not allowed to defend himself by calling every one of his witnesses; Plaintiff was not allowed to confront Bobadilla; Plaintiff was not allowed to question the charging employee; Carpenter was not an impartial fact finder; Carpenter withheld and refused to respond to requests for documentary and exculpatory evidence; and Plaintiff was convicted on no evidence. (ECF No. 120 at 31, 33.)

         Plaintiff further alleges that on June 25, 2013, he filed a formal complaint against Jenkins, Keener, and Olivas, which was referred to the Inspector General's Office for review, but the (unidentified) investigator from the Inspector General's Office buried and/or destroyed exculpatory evidence proving his innocence. (ECF No. 120 at 32.)

         On August 26, 2013, Kirkpatrick, an employee of the Inspector General's Office, received a letter from Plaintiff requesting that Jenkins, Keener, and Olivas be investigated, and Kirkpatrick buried this letter instead of investigating. (ECF No. 120 at 32.)

         Plaintiff alleges that he was ultimately sentenced to two years of disciplinary segregation (solitary confinement), which was later reduced on appeal to one year. He served nine months of the one year due to credits for good behavior. (ECF No. 120 at 10.) Even though his sentence was completed on September 24, 2013, he continued to be confined in solitary for over 17 more months, until March 18, 2015. He avers that in this confinement he was subject to punitive loss of privileges and was kept in inhumane conditions. (Id.) Prior to this time, he had tier time (time outside his cell to use the phone and socialize); yard time every day; a cellmate; he could walk to the dining hall and eat with others twice a day and get good, healthy food; he had a television, video games, an electric guitar, an amp, a boombox, a CD player, a radio, books, magazines, writing utensils, and art supplies; he could play group sports and exercise in the yard and in the gym; he attended college classes and had a job in his unit; he could purchase items from the canteen and could receive food and clothing packages quarterly; he was not handcuffed or shackled leaving his cell; he could shower as often as he wanted; his phone calls were unrestricted; and he had visitation privileges every week. (Id. at 10-12.)

         After six months in solitary confinement, he lost more than ten percent of his muscle mass and his weight dropped approximately 18 pounds; he had back pain, intestinal pain, unusual bowel movements, depression, anxiety, sleeplessness, and headaches; almost all of his property was taken; he was kept in a cell by himself almost 24 hours a day, except for a shower every few days; he was not allowed outside recreation; the food was cold and of smaller portions; there was no socialization; he could no longer go to school or the gym; he could not purchase items from the canteen (including dandruff shampoo which caused scalp issues); he could not receive his quarterly packages; he only got one 30-minute phone call per month; he only had one non-contact visit per month in handcuffs. (Id. at 13-14.)

         He was transferred to ESP on April 9, 2013, and all movement outside his cell was while shackled at the hands and legs; he had no television (though after a few months he had a CD player with a radio); he had an hour in a small enclosed space without a roof every day or two, but there was no direct sunlight and the temperatures were below zero in the winter; he was strip searched every time he left his cell; he could not purchase food, hobbycraft or receive packages; he could not attend classes or chapel; he could only shower once every three days; and he had no physical access to the law library. (Id. at 17.)

         On September 25, 2013, he completed his disciplinary segregation at ESP, but remained under those same conditions until October 31, 2013. (Id. at 20-21.) He was then placed in administrative segregation at ESP and the conditions were essentially the same as in disciplinary segregation. The only difference was that he could order and receive books again; he could order food from the canteen; he had contact visits (though limited because of ESP's remote location); and, he could have his other appliances. Id. at 21.

         In the second screening order, District Judge Jones dismissed the due process claims in Count II as Heck barred. District Judge Jones relied on the applicability of Heck to prison disciplinary hearings resulting in the loss of good time credits, but in the TAC, Plaintiff explicitly alleges that he did not lose any good time credits as a result of the disciplinary sanction. Therefore, the court will address whether Plaintiff may now proceed with his due process claims in Count II.

         The Fourteenth Amendment provides: “No state shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend XIV, § 1. A plaintiff asserting a Fourteenth Amendment due process claim related to disciplinary action that leads to his confinement in disciplinary segregation must first establish that he has been deprived of a protected liberty interest in order to invoke the Due Process Clause's protections. Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Chappell v. Mandeville, 706 F.3d 1052, 1062 (9th Cir. 2013). Once the plaintiff has established that one of these interests is at stake, the court's analysis turns to whether the inmate suffered a denial of adequate procedural protections. See Biggs v. Terhune, 334 F.3d 910, 913 (9th Cir. 2003) (citations omitted).

         “A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,' ... or it may arise from an expectation or interest created by state laws or policies[.]” Wilkinson, 545 U.S. at 221 (citing Vitek v. Jones, 445 U.S. 480, 493-94 (1980) (finding a liberty interest in avoiding involuntary psychiatric treatment and transfer to mental institution under Due Process Clause itself) and Wolff v. McDonnell, 418 U.S. 539, 556-558 (1974) (finding a liberty interest in avoiding withdrawal of state-created system of good-time credits)).

         First, under the Constitution itself, a liberty interest is implicated when the conditions of confinement exceed “the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force.” Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir. 1996) (internal quotation marks and citation omitted). The Ninth Circuit has recognized that “only the most extreme changes in the conditions of confinement” such as “involuntary commitment to a mental institution” and “forced administration of psychotropic drugs” have been found to “directly invoke the protections of the Due Process Clause.” Chappell, 706 F.3d at 1063 (citing Vitek, 445 U.S. at 493-94; Washington v. Harper, 494 U.S. 210, 221-22 (1990)). Other circumstances where a liberty interest has been found as arising from the Due Process Clause itself include: revocation of probation, Gagnon v. Scarpelli, 411 U.S. 778 (1973); revocation of parole status (not just mere denial of parole), Morrissey v. Brewer, 408 U.S. 471 (1972); and labeling an inmate as a sex offender, Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997).

         Plaintiff does not include allegations that courts have recognized directly invoke the protections of the Due Process Clause; therefore, the court will turn to state-created liberty interests. “A state may create a liberty interest through statutes, prison regulations, and policies.” Chappell, 706 F.3d at 1063 (citing Wilkinson, 545 U.S. at 222 and Neal, 131 F.3d at 827). This, however, is “‘subject to the important limitations set forth in Sandin v. Conner[.]” Wilkinson, 545 U.S. at 222. Sandin rejected the previously employed approach for evaluating whether there was a state-created liberty interest which looked at the mandatory language of prison regulations. See id. (citing Sandin v. Conner, 515 U.S. 472, 481 (1995)). Instead, Sandin directed that it was more important to look at the “nature of the deprivation.” Id. (citing Sandin, 515 U.S. at 481).

         “Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law.” Sandin v. Conner, 515 U.S. 472, 485 (1995). Thus, a change in the conditions of confinement, such as Plaintiff's confinement to disciplinary segregation, only rises to the level of a protected liberty interest if it amounts to “freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to the protection by the Due Process Clause of its own force ..., nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484.

         Placement in punitive segregation alone does not make the conditions of confinement an “atypical and significant hardship.” Sandin, 515 U.S. at 485; Chappell, 706 F.3d at 1063 (quoting Meachum v. Fano, 427 U.S. 215, 224 (1976) (“the Due Process Clause does not protect against all changes in conditions of confinement even where they ‘hav[e] a substantial adverse impact on the prisoner involved.'”).

         The Supreme Court has declined to establish a “baseline from which to measure what is atypical and significant in any particular prison system.” Wilkinson, 545 U.S. at 223 (noting inconsistent conclusions among the circuits, but concluding that assignment to Ohio's “Supermax” facility satisfied this standard “under any plausible baseline”). The Ninth Circuit has concluded, however, that to determine whether a particular form of restraint imposes “atypical and significant hardship, ” a court considers a condition or combination of conditions or factors on a case by case basis, rather than invoking a single standard.” Chappell, 706 F.3d at 1064 (citing Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (confirming that the inquiry is “context-dependent” and requires “fact by fact consideration”). At least three factors have been used to guide this inquiry: (1) “whether the conditions of confinement mirrored those conditions imposed upon inmates in analogous discretionary confinement settings;” (2) “the duration and intensity of the conditions of confinement;” and (3) “Whether the change in confinement would inevitably affect the duration of the [prisoner's] sentence.” Chappell, 706 F.3d at 1064-65 (italics original) (internal quotation marks and citation omitted). As such, “Sandin requires a factual comparison between conditions in general population or administrative segregation (whichever is applicable) [or the prisoner's baseline conditions] and disciplinary segregation, examining the hardship caused by the prisoner's challenged action in relation to the basic conditions of life as a prisoner.” Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003).

         In Wilkinson, the Supreme Court considered a challenge to Ohio's placement of prisoner's in its “Supermax” facility-a “maximum-security prison with highly restrictive conditions.” Wilkinson, 545 U.S. at 213. Inmates were required to stay in their seven by fourteen foot cells for twenty-three hours a day with constant illumination; they could not communicate with other inmates and were deprived of almost all human contact; they were limited to one hour of exercise a day in a small, indoor room; their placement in the facility was indefinite, and after an initial thirty-day review, their placement was reviewed only once a year; and an inmate moved to the facility who was otherwise eligible for parole would become ineligible. Id. at 214, 215, 224. The Supreme Court found that while the conditions at the facility taken alone might not create a liberty interest, “taken together they impose an atypical and significant hardship within the correctional context” so as to create a “liberty interest in avoiding assignment” to the facility. Id. at 224 (citation omitted).

         In Brown v. Oregon Department of Corrections, 751 F.3d 983 (9th Cir. 2014), the Ninth Circuit addressed a situation where a prisoner was placed in Oregon's Intensive Management Unit (IMU) for twenty-seven months. Inmates in the IMU were in solitary confinement for twenty-three hours a day. Id. at 985. They got out of their cells for forty minutes a day, thirty of which could be spent in recreation. Id. Half of that time (fifteen minutes) could be spent in an “outside” facility within a fifteen by forty foot room with high, concrete walls covered by a metal grate. Id. This was compared to inmates in general population who got twenty-five to thirty-five hours a week for recreation and social interaction, including two to five hours a day of outdoor recreation. Id. Inmates in the IMU got two non-contact visits per month and a maximum of two visitors in a six month period. Id. General population inmates got between eleven and twenty-two contact visits per month and an unlimited number of approved visitors. Id. IMU inmates were denied access to prison and law libraries, group religious worship, educational and vocational opportunities, telephone usage except in emergencies, access to televisions, and personal property. Id.

         The Ninth Circuit held that “under any plausible baseline, Brown's twenty-seven month confinement in the IMU without meaningful review ‘impose[d] atypical and significant hardships on [him] in relation to the ordinary incidents of ...


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