EASTERN DISTRICT OF WASHINGTON
NO: 4:20-CV-5062-TOR Plaintiff, v. ORDER DENYING PENDING MOTIONS, TERMINATING JAY INSLEE, Governor of the State of CERTAIN DEFENDANTS AND Washington; ROBERT FERGUSON, GRANTING SECOND State Attorney General; JULIE MARTIN, OPPORTUNITY TO AMEND OR DOC Secretary; DONALD HOLBROOK, VOLUNTARILY DISMISS State Penitentiary Superintendent; KECIA RONGEN, ISRB Chairperson; JANE DOE, DOC Director of Infectious Disease Control; JANE DOE, State House of Representatives Speaker of the House; JOHN DOE, State Senate Majority Leader; GEORGE MARLTON, DOC Contract Attorney; JOHN DOE, DOC WSP Correctional Officer; JOHN DOE, WSP DOC Shift Lieutenant; LYNN CLARK, WSP Former Captain of the Guards; KAREN FORSS, WSP Medical Supervisor; JOHN DOE, DOC Chief of Medical Operations; Medical Doctor; MANUEL LOUIS SANTANA, WSP Correctional Officer; JOHN DOE, WSP Business Manager; JOHN DOE, WSP Mailroom Supervisor; JOHN DOE, WSP Food Manager; GARY PIERCE, WSP Disciplinary Hearings Officer; ROCHELLE STEPHENS, WSP Legal Liaison; STEVE SINCLAIR, DOC Secretary; and ROBERT HERZOG, DOC Director of Prisoner Operations,
Defendants.
By Order filed June 22, 2021, the Court advised Plaintiff, a prisoner at the Washington State Penitentiary (“WSP”) of the deficiencies of his initial complaint and directed him to amend or voluntarily dismiss within sixty days. ECF No. 16. Specifically, Plaintiff’s claims against the WSP Superintendent and the Jane Doe chairperson of the Indeterminate Sentencing Review Board (“ISRB”) regarding the novel Coronavirus Disease 2019 (“COVID-19”), were insufficient to state a claim upon which relief may be granted, as Plaintiff had failed to allege facts showing that either Defendant was aware of constitutional violations or that they established a policy that caused the violations. Id. at 4. Furthermore, Plaintiff did not present facts showing that he was being subjected to an unreasonable risk to his health or safety and that Defendants Holbrook and Doe were deliberately indifferent to that risk. See Farmer v. Brennan,
511 U.S. 825, 834-37 (1994). Indeed, he did not identify a single COVID-19 case at the WSP when he filed this action on March 21, 2020, ECF No. 1. On June 29, 2021, Plaintiff filed a First Amended Complaint consisting of 57
pages. Plaintiff now identifies the ISRB chairperson as Kecia Rogen and complains that she did not find him “parolable” in June 2020, which, in turn, allegedly subjected Plaintiff to a high risk of contracting COVID-19. ECF No. 17 at 16–17. Plaintiff
names 23 additional Defendants, including Beth Schubach, the PREA1 Coordinator for the Department of Corrections (“DOC”), claiming that she should have released him into the community to receive prison rape therapy and counseling because he is
a “verified P.R.E.A. victim.” Id. at 17. In addition, Plaintiff asserts that Defendants Governor Jay R. Inslee, State Attorney General Robert Ferguson, DOC Secretary Julie Martin, WSP Superintendent Donald Holbrook, ISRB Chairperson Kecia Rongen, DOC PREA
Coordinator Beth Schubach, State House of Representative Speaker of the House Jane Doe, State Senate Majority Leader John Doe, DOC Secretary Steve Sinclair and DOC Director of Prison Operations Robert Herzog refused to issue an order
mandating Plaintiff’s immediate release “while Covid-19 prowls about like an enraged tiger” from 2019 to 2021 in violation of the Eighth Amendment prohibition against cruel and unusual punishment. ECF No. 17 at 9–10. Plaintiff also asserts that Defendants Holbrook, Martin, Ferguson, Sinclair and Herzog failed to ensure
their “Covid-19” orders were carried out. Id. at 16. These conclusory assertions are insufficient to cure the deficiencies of the initial complaint.
1 Prison Rape Elimination Act. On July 8, 2021, Plaintiff filed six motions and 19 separate Affidavits (unsworn), ECF Nos. 18, 19, 20, 21, 22, 23 and 24. The Court has reviewed
Plaintiff’s submissions and finds that his conclusory assertions again fail to state a claim upon which relief may be granted. In essence, Plaintiff is complaining that he should have been released from
incarceration, but he was not. A prisoner does not have a constitutional right to be released prior to the expiration of a valid sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Furthermore, if a state prisoner challenges the fact or duration of his confinement or seeks a determination that he is
entitled to release or a shortening of his period of confinement, his only federal remedy is a writ of habeas corpus, with its requirement of exhaustion of state remedies. See Preiser v. Rodriguez, 411 U.S. 475, 487-90 (1973); Heck v.
Humphrey, 512 U.S. 477, 481 (1994). A § 1983 claim is not the appropriate vehicle for a prisoner to challenge his underlying state conviction and sentence by seeking injunctive relief. Preiser, 411 U.S. at 489 (“a state prisoner challenging his underlying conviction and sentence on federal constitutional grounds in a federal
court is limited to habeas corpus . . . he cannot bring a § 1983 action, even though the literal terms of § 1983 might seem to cover such a challenge”). For these reasons, Plaintiff is not entitled to the relief he seeks in his “Motion
for Emergency Relief,” that is, his immediate release pending the outcome of this civil suit. ECF No. 20. The Court notes that whether a person is housed in prison or residing in the community, the COVID-19 virus continues to spread throughout
society and fear of the virus does not warrant immediate release. Therefore, the Motion for Emergency Relief, ECF No. 20, and the Motion to Expedite, in which Plaintiff again asserts that he is “in imminent danger” of COVID-19 and the Delta
variant and lives in “terror of instant or unexpected death,” ECF No. 21, are In another Motion filed July 8, 2021, Plaintiff seeks to supplement his
pleadings with affidavits. ECF No. 18. The Court has reviewed Plaintiff’s most recent affidavits (unsworn), ECF No. 24 at 1–19, which were filed in addition to the seventeen affidavits (declarations) submitted with his First Amended Complaint,
ECF No. 17 at 24–40. The Court has referenced some of the newly added affidavits in this Order. Nevertheless, the Court finds that the assertions contained in the affidavits do not advance this litigation. Therefore, Plaintiff’s Motion to Supplement the Pleadings, ECF No. 18, is DENIED.
Plaintiff is advised that he does not need to submit exhibits, affidavits, grievances, witness statements, or any other materials with his complaint. Any documents Plaintiff chooses to submit must relate directly to the claims presented in
the complaint. Plaintiff must specify which portion of the “exhibit(s)” (i.e., page and paragraph) he is relying on to support the specific fact(s) of the claims presented in the complaint. Plaintiff has not done this. The Court will not comb a litigant’s
exhibits in search of a claim not clearly and concisely presented in the complaint. Plaintiff also seeks to amend his complaint. ECF No. 19. Because the Court will be granting Plaintiff a second and final opportunity to amend his complaint, the
Motion to Amend Complaint, ECF No. 19, is DENIED as moot. Plaintiff’s final two motions filed on July 8, 2021, concern his request to have this Court issue a criminal complaint, ECF No. 22, and to transfer the criminal issues in his complaint to the U.S. Attorney, ECF No. 23. He presents several affidavits in
support of these requests. See ECF No. 24 at 2, 9, 10 and 11. Private citizens can neither bring a direct criminal action against another person nor can they petition the federal courts to compel the criminal prosecution of
another person. See Maine v. Taylor, 477 U.S. 131, 137 (1986); Leeke v. Timmerman, 454 U.S. 83, 86–87 (1981); United States v. General Dynamics Corp., 828 F.2d 1356, 1366 (9th Cir. 1987). Plaintiff lacks standing to compel an investigation or prosecution of another person. See Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”). As such, Plaintiff is precluded from bringing a criminal complaint in this Court or requesting this Court to compel
prosecution based on Plaintiff’s asserted charges. Accordingly, Plaintiff’s “Motion for the Issuance of a Criminal Complaint,” ECF No. 22, and his “Motion to Transfer Criminal Issues Entailed in this 42 USC 1983 Action to the US Attorney,” ECF No.
23, are DENIED. Attached to the First Amended Complaint is a Motion for the Appointment of Counsel.” ECF No. 17 at 57. Plaintiff asserts that counsel is needed because of the
complexity of the issues, the need for pretrial discovery, his inability to investigate, interview witnesses or gather inculpatory evidence, and his ignorance and unfamiliarity with civil rights law. Id. There is no provision for the appointment of counsel at public expense in a
suit such as this. District courts lack authority to require counsel to represent indigent prisoners in 42 U.S.C. § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 309-10 (1989) (“§ 1915(d) does not authorize the federal courts to
make coercive appointments of counsel”). In certain exceptional circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining
whether “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on plaintiff. Circumstances common to most
prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances warranting the appointment of voluntary counsel. Id.
Here, Plaintiff has failed to demonstrate exceptional circumstances to warrant appointment of counsel. Based on the filings before this Court, this Court finds Plaintiff has demonstrated a reasonable ability to articulate his claims and there is nothing particularly complex about the factual and legal issues presented in the
Amended Complaint. Further, based on the evidence currently before this Court, the likelihood of success on the merits is minimal. Accordingly, Plaintiff’s request for counsel, ECF No. 17 at 57, is DENIED.
On July 20, 2021, Plaintiff filed eleven more motions seeking relief ranging from the return of candy seized during a cell search on July 15, 2021, to his release from incarceration. ECF Nos. 25-35. Having determined that oral argument is not warranted under LCivR 7(i)(3)(B)(iii), Local Civil Rules for the Eastern District of
Washington, the Motions were considered without oral argument on the date signed below. Consequently, Plaintiff’s Motion to Hold a Telephonic of Video Hearing on Demos’ Motions, ECF No. 35, is DENIED.
In his “Motion for Release of Property and Return,” Plaintiff complains that various candies were seized during a search of his cell and he asks this Court to order
their return to him. ECF No. 25. Plaintiff is admonished that a civil action in federal court is not an open forum in which a prisoner may assert any claim that arises concerning his or her incarceration.
Federal Rule of Civil Procedure 18(a) provides that “[a] party asserting a claim, counterclaim, cross-claim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.” Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees.
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing 28 U.S.C. § 1915(g)); see also Fed. R. Civ. P. 20(a)(2) (“Persons ... may be joined in one action as defendants if . . . any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences . . . .”). Claims involving different defendants, and which do not arise out of the same transaction or occurrence, may not be joined in the same action. This Court is unable to direct the conduct of persons who are not named as defendants in a pending action before the Court. Furthermore, the Court finds
Plaintiff’s assertions regarding the confiscation of candy and seeking its return to be so trivial as to not warrant further consideration. Accordingly, Plaintiff’s Motion for Release of Property and Return, ECF No. 25, is DENIED.
Plaintiff’s Motion for Priority Review of the Denial of Basic Human Needs, Motion for Judicial Intervention, Motion for Preliminary Injunction and Restraining Order, and Motion for Order Requiring DOC to Provide Unobstructed Communication with the US District Court, concern his assertions that he was
sanctioned with confinement to quarters for thirty days after being found guilty of a “Rule 558 Violation.” ECF Nos 26, 29, 30 and 31. Plaintiff contends that because of the cell confinement he has been denied a shower, exercise, cleaning supplies,
and telephone access in retaliation for this litigation. ECF No. 26 at 1-2. He indicates that a person not named as a Defendant to this action issued the infraction on June 25, 2021. Id. at 1. In an additional motion titled, “Motion for Breach of Bond Violation Order,” Plaintiff claims that Defendants and their agents have
subjected him “in violation of their bond, to foul, and ‘unconstitutional’ living conditions.” ECF No. 34. The Court is unable to infer from the facts presented that the sanction of thirty
days confinement to quarters imposed on July 16, 2021, implicates procedural due process protections under Sandin v. Conner, 515 U.S. 472, 483-84 (1995). The conclusory assertions of retaliation are insufficient to state a constitutional claim
under Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). Furthermore, the temporary conditions Plaintiff describes do not raise constitutional concerns that he is being subjected to cruel and unusual punishment. See Farmer, 511 U.S. at 834.
Plaintiff provides no support for his conclusory assertion that he, as a convicted felon, cannot now be punished in prison because he is mentally ill, having been diagnosed as suffering from serious mental health trauma resulting from being raped in prison.
The Court will not interfere with the ability of prison staff to manage the prison population. Therefore, Plaintiff’s Motion for Priority Review of the Denial of Basic Human Needs, Motion for Judicial Intervention, Motion for Preliminary
Injunction and Restraining Order, and Motion for Breach of Bond Violation Order, ECF Nos. 26, 29, 30 and 34, are DENIED. Because the Court has scheduled no telephonic conferences in the next thirty days, Plaintiff’s Motion for Order Requiring DOC to Provide Unobstructed Communication with the US District Court, ECF No.
31, is DENIED. The Court finds that Plaintiff’s Motion for Pretrial Conference and Motion for Discovery, ECF Nos. 27 and 28, are premature and are therefore, DENIED. In his
Motion for Pretrial Release Due to Covid-19, Plaintiff repeats his assertion that “confinement in prison is a ‘death trap,’” based on his reading of the general orders issued by this Court and the state courts and the Governor’s emergency
proclamations. For the reasons set forth previously in this Order denying Plaintiff’s requests for release, the Motion for Pretrial Release Due to Covid-19, ECF No. 32, is DENIED.
In his “Motion to Advance the Docket,” ECF No. 33, Plaintiff asks the Court to “advance” his motions on the docket, by which the Court infers that Plaintiff is asking that his motions be filed and noted for hearing. Because this has been accomplished, Plaintiff’s Motion to Advance the Docket, ECF No. 33, is DENIED
as moot. Plaintiff initiated this action on March 21, 2020, contending that he was in
“imminent danger” of contracting COVID-19 because prison officials were not taking sufficient measures (i.e., masking and social distancing). ECF No. 1. The Ninth Circuit was persuaded that this qualified Plaintiff for an exemption from the preclusive effects of 28 U.S.C. § 1915(g) and this Court permitted Plaintiff to
proceed in forma pauperis in this action on June 22, 2021, ECF No. 15. In the First Amended Complaint, Plaintiff asserts that, due to his confinement at the WSP, he is unable to practice safe social distancing because prisoners are like
“sardines in a can.” ECF No. 17 at 10. He broadly asserts that the “prison ventilation system is so poor, that prisoners are forced to breathe the same air, which ramps up the potential for the spread of Covid-19.” Id. Plaintiff claims he is being “confined
in ‘a death trap.’” Id. He states that he has suffered “blood clots, weight loss, vomiting, fatigue, [and] nose bleeds” as well as “mental, emotional and psychological trauma, nightmares, and recurring flashbacks.” Id. He presents no
facts linking these alleged injuries to the actions of identified Defendants. Plaintiff asserts that in 2019, 2020 and 2021, prison staff at the WSP “failed to adequately implement social distancing protocols.” ECF No. 17 at 16. He claims that Defendant Jane Doe, the DOC Director of Infectious Disease Control, failed to
implement social distancing regarding telephones, showers and the recreational yard, thus placing Plaintiff “in the cross hairs of the dreaded zone of “imminent danger.” Id. at 18. Plaintiff does not state how he has been physically harmed.
Plaintiff makes no assertion in his First Amended Complaint, ECF No. 17, or the subsequently filed Affidavits, ECF No. 24, that he has contracted COVID-19 since he filed this action more than a year ago, or that if he did, identified Defendants have denied him adequate medical care. Plaintiff makes no assertion that he has
been denied vaccination(s) for COVID-19. Rather, Plaintiff states that he is 70 years-old with a “weak immune system,” his metabolism has been weakened by four surgeries with the anticipation of a hernia
surgery “very soon,” and that the added factor of allegedly impure drinking water, increases his vulnerability to contracting COVID-19. ECF No. 17 at 16. In an Affidavit seeking a “Vulnerable Adult Protection Order” under state law, Plaintiff
makes similar contentions regarding his age and a “weakened medical condition” that allegedly make him “highly vulnerable” to contagion, infection, disease and sickness. ECF No. 24 at 15.
Plaintiff accuses State legislators of failing to respond to his letters of concern in 2019, 2020 and 2021, and of failing to “personally scrutinize D.O.C.’s compliance with all of the ‘Covid-19 protocols.” ECF No. 17 at 18. These allegations do not state a claim upon which relief may be granted. See Baltoski v. Pretorius, 291
F.Supp.2d 807, 811 (N.D. Ind. 2003) (“[t]he right to petition the government for redress of grievances, however, does not guarantee a favorable response, or indeed any response, from state officials”). Accordingly, Plaintiff’s allegations against
Defendants Jane Doe (State Speaker of the House) and John Doe (State Senate Majority Leader) are subject to dismissal A. Excessive Use of Force
Plaintiff names Sgt. David Lesser, and John Doe Correctional Officers # 1 thru # 6 as Defendants in the body of the First Amended Complaint, ECF No. 17 at 11, but he does not list these persons as Defendants either in the caption of his First
Amended Complaint or among the Defendants listed under section II. Defendant Information. In addition, Plaintiff numbers his Defendants as “24,” ECF No. 17 at 8, although he has named 25 persons as Defendants.
Regardless, Plaintiff makes unspecified allegations against Sgt. Lesser and John Doe Correctional Officers # 1 thru # 6, claiming they used “excessive, unnecessary and sadistic force” in 2016 when Plaintiff was unable to eliminate
bodily waste, and that “came perilously close to costing Plaintiff Demos his life.” Because these claims against Sgt. Lesser and John Doe Correctional Officers #1 thru #6, as well as against Defendants John Doe Shift Lieutenant and Captain Lynn Clark occurred in 2016, they are precluded from adjudication by the applicable three-year
statute of limitations. The applicable statute of limitations for § 1983 claims under Washington law is three years. See RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th
Cir. 2002); Millay v. Cam, 135 Wash.2d 193 (1998) (requiring “bad faith, deception, or false assurances by the defendant and the exercise of diligence by the plaintiff,” for equitable tolling to apply). The “statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process.” Brown v. Valoff, 422 F.3d
926, 943 (9th Cir. 2005); see also Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (“This circuit has, with other circuits, adopted a mandatory tolling provision for claims subject to the Prison Litigation Reform Act.”).
Plaintiff did not file his federal civil rights complaint until March 21, 2020. ECF No. 1. He provides no information indicating the statute of limitations has not
run on each of his claims against identified Defendants occurring prior to March 21, 2017. In the absence a basis for equitable tolling, Plaintiff must limit his claims to those which arose after March 21, 2017. Accordingly, Plaintiff’s allegations against
Defendants John Doe - DOC WSP Correctional Officer and John Doe - WSP DOC Shift Lieutenant, and Lynn Clark - WSP Former Captain of the Guards, are DISMISSED WITH PREJUDICE and the Clerk of Court shall TERMINATE Defendants John Doe - DOC WSP Correctional Officer and John Doe - WSP DOC
Shift Lieutenant, and Lynn Clark - WSP Former Captain of the Guards from this action. B. Neglect and Mismanagement
Plaintiff accuses Defendants DOC PREA Coordinator Beth Schubach, WSP Medical Supervisor Karen Foss, WSP Medical Director William Frank John Smith, WSP Business Manager John Doe, WSP Mailroom Supervisor John Doe, WSP Food Manager John Doe, and DOC Grievance Program Manager Jane Doe of “neglect,
mismanagement, abuse of authority, misfeance [sic], and malfeasance, cronyism, fraud, ‘cover-up,’ and shady nebulous & nefarious dealings, such as overcharging, serving unhealthy food for consumption, theft & mismanagement of Plaintiff
Demos’ Monetary Funds.” ECF No. 17 at 11. He claims these actions occurred between 2000 and 2021, and that “serving of unhealthy food places [him] in ‘imminent danger.’” Id.
Plaintiff also claims that the theft or mismanagement of his funds has “caused [him] to be unable to pay for the services of a private civil right attorney, or a criminal law attorney, there are also other logistical factors, involved and
responsible.” ECF No. 17 at 12. Plaintiff presents no facts supporting his contentions that the food is unhealthy, that he was overcharged, or that his funds were stolen or mismanaged. Furthermore, negligence is not actionable under § 1983. See Davidson v.
Cannon, 474 U.S. 344, 347-48 (1986). Therefore, Plaintiff’s assertions of neglect or negligence fail to state a claim upon which relief can be granted. Plaintiff also broadly asserts that from 2015 to 2021, Defendants George
Marlton, the DOC Contract Attorney, and Rochelle Stephens, the WSP Legal Liaison, failed to pass along Plaintiff’s communications to superiors stating that Plaintiff’s constitutional rights were being violated by prison staff, thereby placing Plaintiff in “imminent danger.” ECF No. 17 at 12. Plaintiff’s vague allegations over
a broad swath of time do not state a claim upon which relief may be granted. C. Governor Inslee Plaintiff claims that Defendant Governor Jay R. Inslee failed to ensure that his
orders related to COVID-19 were being implemented by state correctional officers and failed to respond to Plaintiff’s letters of complaint regarding the negligent failure to enforce “Covid-19 restrictions” in 2019 and 2020. ECF No. 17 at 15. These
allegations do not state a claim upon which relief may be granted. See Baltoski, 291 F.Supp.2d at 811 (“[t]he right to petition the government for redress of grievances, however, does not guarantee a favorable response, or indeed any response, from state
officials”). Plaintiff also complains that Governor Inslee failed to ensure other laws regarding social distancing were enforced. ECF NO. 17 at 22. “The Eleventh Amendment creates an important limitation on federal court jurisdiction, generally prohibiting federal courts from hearing suits brought by
private citizens against state governments without the state’s consent.” Sofamor Danek Grp., Inc. v. Brown, 124 F.3d 1179, 1183 (9th Cir. 1997). There is an exception to this jurisdictional bar where the officer sued has “some connection with
the enforcement of the [allegedly unconstitutional] act.” Ex parte Young, 209 U.S. 123, 157 (1908). In the Ninth Circuit, the “connection must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for
enforcing the challenged provision will not subject an official to suit.” Los Angeles Cty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) (citing Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992)). If the official “cannot direct, in a binding
fashion, the prosecutorial activities of the officers who actually enforce the law or bring his own prosecution, he may not be a proper defendant.” Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th Cir. 2004); see also Tohono
O’odham Nation v. Ducey, 130 F. Supp. 3d 1301, 1311 (D. Ariz. 2015) (“Were the law otherwise, the exception would always apply. Governors who influence state executive branch policies (which virtually all governors do) would always be subject
to suit under Ex parte Young. The exception would become the rule.”). “The power to promulgate law is not the power to enforce it.” In re Abbott, 956 F.3d 696, 709 (5th Cir. 2020) (citing Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 152 (1991)), cert. granted, judgment vacated as moot, 141 S.Ct. 1261
(2021). Plaintiff’s allegations fail to state a claim upon which this Court could grant relief against Governor Inslee. Accordingly, Plaintiff’s claims against Defendant Governor Jay R. Inslee are DISMISSED WITH PREJUDICE and the Clerk of
Court shall TERMINATE Defendant Inslee from this action. D. Allegations of Prison Rape Plaintiff asserts that in 2019 and 2020, Defendant Beth Schubach, the PREA Coordinator, refused to order the release of Plaintiff who is a “verified P.R.E.A.
victim,” so that he might receive Prison Rape Therapy and Counseling in the community and “implement a modicum of social distancing.” ECF No. 17 at 17. The Court has already addressed Plaintiff’s assertions regarding his release.
In addition, Plaintiff claims that Defendant Schubach did not order that Plaintiff be tested for COVID-19, “as [his] rapists could be Covid-19 positive.” ECF
No. 17 at 17. Plaintiff contends that he was “anally raped” multiple times in prison and that medical providers at an outside medical center “suspect” that Plaintiff “may have” anal cancer, possibly contracted from being raped in prison. Id. Plaintiff does
not state when any of these events occurred. Plaintiff claims the DOC and the Parole Board have “failed to do anything about the rape, or intervene,” ECF No. 17 at 17. He speculates that “if [he] didn’t know any better, [he] would have to say that the prison rapes were orchestrated by
DOC in ‘retaliation’ for [his] legal proclivities and inclinations.” Id. In his affidavit labeled, “#30 4A Affidavit In Support, 267 F.2d 866,” Plaintiff contends that the DOC orchestrated and set him up to be raped in the 1990s and 2000s because of his
“Jewishness.” ECF No. 24 at 13. The Court takes allegations of rape in prison seriously. Nevertheless, Plaintiff has presented no facts from which the Court could infer that identified Defendants have failed to protect him from sexual assault by other prisoners, or denied Plaintiff
needed medical treatment. He makes no allegations that he has been diagnosed with anal cancer and is undergoing cancer treatment. Plaintiff’s allegations in his affidavit labeled, “#23 Affidavit “In Support, 475
U.S. 868,” of being “victimized” and subjected to “psychological rape” while in DOC custody are not supported by factual allegations. ECF No. 24 at 6. As presented, Plaintiff’s broad and conclusory assertions of rape do not state a claim
upon which this Court may grant relief. Furthermore, to the extent that Plaintiff is claiming that he was raped in the “1990s and 2000s,” claims arising more than ten, twenty or thirty years ago would
be time-barred. See RK Ventures, Inc., 307 F.3d at 1058. In addition, Plaintiff’s allegation that the parole board engaged in “odious Racial Discrimination,” on an unspecified date, ECF No. 17 at 17, is conclusory and speculative and was not brought against any identified Defendant(s). Plaintiff’s allegations against
Defendant Schubach for failing to release him in 2019 and 2020, or to order that he be tested for COVID-19 based on rapes that occurred decades earlier, fail to state a claim upon which relief may be granted.
E. Medical treatment Plaintiff accuses Defendants DOC Chief of Medical Operations John Doe and WSP Medical Doctor William Frank John Smith of exposing him to “Covid-19” when they failed to ensure that the surgeon contracted to perform Plaintiff’s
“prostrate [sic] surgery” in 2016 was qualified. ECF No. 17 at 19. Plaintiff asserts that he received a second prostate surgery in 2018 because the first surgery was “botched” in 2016. Id. He claims the 2018 surgery “exposed [him] to a high risk of
contracting the infamous Covid-19 virus, placing [Plaintiff] in imminent danger.” Id. He asserts that the “botched” prostate surgery in 2016, may also have led to the development of a hernia in 2018. Id. Because Plaintiff’s allegations against
Defendants John Doe and Dr. Smith occurred in 2016, they are time-barred and subject to dismissal. See See RK Ventures, Inc., 307 F.3d at 1058. Plaintiff also alleges that Defendant DOC Chief of Medical Operations John
Doe failed to adequately supervise medical staff, possibly exposing Plaintiff to “Covid-19” from “dirty & filthy hospital rooms, bloodstained sheets from the prior cell occupant, and the failure of WSP medical staff to wear gloves when serving food, medications or touching the Plaintiff.” ECF No. 17 at 19. Plaintiff does not
state when this occurred. His assertion of speculative injury does not state a claim upon which relief may be granted. F. Retaliation
Plaintiff states that Defendant WSP Mailroom Supervisor John Doe “lost, misplaced and delayed” outgoing and incoming mail “in retaliation for Demos’ Grievances & complaints,” particularly his “Covid-19 related letters” to the governor and state legislators in 2019 and 2020, because they “would expose WSP
staff’s negligence & complicity.” ECF No. 17 at 15 and 19. These conclusory and speculative assertions do not state a claim upon which relief may be granted. “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); accord Watison v. Carter, 668 F.3d 1108, 1114–15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.
2009). Here, Plaintiff presents no facts supporting a plausible claim that identified Defendants took adverse action against him because he filed grievances and complaints. G. Grievance Activities
Plaintiff asserts that either a John or Jane Doe Grievance Program Manager directed WSP grievance staff to infract Plaintiff for utilizing the grievance process under the guise that Plaintiff was “filing an ‘excess’ ammount [sic] of grievances”
in order to “thwart, intimidate and harass” Mr. Demos. ECF No. 17 at 20. Plaintiff does not state when this occurred but he claims that he cannot file a “Covid-19 grievance for fear of being infracted.” Id. He contends that “the ban on the # of grievances that [he] can file, and the punishments that have been visited on [him] for
invoking the grievance process places [him] in imminent danger as well as being violative of [his] 1st Amendment Right of Free Speech.” Id. Plaintiff accuses Defendant Gary Pierce, a WSP Disciplinary Hearings
Officer, of upholding major infractions finding that Plaintiff had filed excessive grievances between 2000 and 2021, despite the federal mandate that Plaintiff exhaust administrative remedies. ECF No. 17 at 13. As a result, Plaintiff claims that he lost
“good time,” privileges and access to constitutional rights, in addition to suffering mental, emotional, psychological, moral, human and spiritual trauma. Id. Plaintiff states that Defendant Pierce found him guilty of and punished him for (a) filing
PREA complaints, (b) filing Covid-19 complaints, and (c) filing legal actions in the courts. Id. at 20. The Court takes judicial notice of the fact that Mr. Demos is well-known as a vexatious litigant. See Demos v. U.S. Dist. Court for E. Dist. of Wash., 925 F.2d
1160, 1161 (9th Cir.1991) (“Demos is a prolific litigant. . . . [W]e hold that he has abused the privilege of filing petitions in forma pauperis in this court.”); Demos v. Kincheloe, 563 F.Supp. 30, 31 (E.D. Wash. 1982) (entering a prefiling order against
Demos because “each and every complaint and petition” filed by Demos “is frivolous, malicious, repetitive, de minimis, wholly insubstantial, or insufficient to invest the court with subject matter jurisdiction....”). Plaintiff seems to indicate that he is limited as to the number of grievances he
may file or maintain during a given period. He does not allege how this entirely precludes him from filing a grievance regarding the response to COVID-19. As presented, Plaintiff has failed to state a claim against either the Doe Grievance
Program Manager or Defendant Pierce upon which relief may be granted. He presents no facts from which the Court could infer a viable claim of retaliation.
H. Food Service Plaintiff complains that he has been served food containing pieces of metal, fingernail clippings, small rocks/pebbles and human hair. ECF No. 17 at 21. He
asserts that his health and safety would be impaired if he accidently consumed any of these items and he would “enter the zone of imminent danger.” ECF No. 17 at 21. Plaintiff complains that he most recently found foreign objects in his food in 2019, 2020 and 2021. He asserts that Defendant John Doe, the WSP Food Manager,
has a duty to ensure that Plaintiff is served “clean, safe, edible food,” and he asks the Court to note that “Defendant Manuel Louis Santana was found guilty after a D.O.C. investigation of tampering with John Demos’ Food Tray.” Id. Plaintiff does
not state in this First Amended Complaint when this alleged food tampering took place, or how it relates to his initial claims regarding COVID-19. Regardless, “[t]he fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional
deprivation.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (citation and internal quotations omitted). As presented, Plaintiff’s allegations against Defendants John Doe and Santana fail to state a claim upon which relief may be
granted. I. Monetary Deductions Plaintiff contends that Defendant John Doe, the WSP Business Manager, has
deducted monies from Plaintiff’s spendable account for items Plaintiff did not receive, and for debts that are more than five years old. Plaintiff argues that unpaid debts that are more than five years old must be cancelled.
Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Baker v. McCollan, 443 U.S. 137, 146 (1979). An unauthorized deprivation of property does not constitute a due process violation if a meaningful postdeprivation remedy for the
loss is available. Hudson v. Palmer, 468 U.S. 517, 534 (1984). Washington's tort claims provisions provide a damages remedy to persons who have suffered from the tortious conduct of the State, local government, or their political subdivisions. See
RCW 4.96. Plaintiff’s allegations against the Doe Business Manager do not state a federal constitutional claim upon which this Court may grant relief. J. Clemency/Pardon Plaintiff complains that the Governor, State Attorney General and the state
clemency and pardon board failed to act on his request for clemency and pardon in 2019 and 2020. ECF No. 17 at 22. Again, a prisoner does not have a constitutional right to be released prior to the expiration of a valid sentence. Greenholtz, 442 U.S.
at 7. Plaintiff’s allegations fail to state a claim upon which relief may be granted. K. Allegations Concerning Drinking Water Plaintiff complains that Defendant Donald Holbrook has not investigated his
claims regarding the drinking water at the WSP, thus allegedly placing “Plaintiff’s life, safety and well-fare in ‘imminent danger.’” ECF No. 17 at 23. Plaintiff contends that most prison staff refuse to drink the water and that it may contain lead
poisoning; feces; zinc (oxide compound); chromium (compounds); arsenic compounds, nickel compounds, toxins, styrene, formaldehyde compounds; and “other sundry foreign substances, chemicals, metals & agents.” Id. He asserts that this could lead to nausea; blindness and baldness; insanity and premature aging;
strokes and heart failure; paralysis and memory loss; headaches and vomiting; difficulty breathing and death. Id. Plaintiff contends that Defendant Holbrook has a duty to investigate and correct the “dirty drinking water” problem. Id.
Contrary to Plaintiff’s assertion, there is no independent constitutional right to an adequate investigation. See Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (“[W]e can find no instance where the courts have recognized inadequate investigation as sufficient to state a civil rights claim unless there was another
recognized constitutional right involved.”). Plaintiff has presented no facts indicating that the water was tested and found to contain contaminants. As presented, Plaintiff has presented only speculations, and this is insufficient to state a
claim upon which relief may be granted. L. “Counts” Attached to the Complaint are Counts 1-14, titled, “Personal Involvement of
Named Defendants.” ECF No 17 at 41-46, plus an Addendum asserting Plaintiff’s involvement in a “consent decree” resulting from Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) and Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985), along with
his contention that the WSP should be placed under “receivership” due to the COVID-19 Pandemic. Id. at 47. The Court takes judicial notice of the fact that Hoptowit v. Ray, Case No. 2:79-cv-00359-WFN, was dismissed with prejudice on August 19, 1999, terminating the permanent injunction and essentially preventing
any further complaints being brought under the Hoptowit case name and number. See ECF No. 1344. Any claims relating to the Hoptowit case may not proceed in this action.
In Count #1, Plaintiff asserts that he contracted the following “Covid-19 symptoms”: (1) loss of appetite; (2) blood clots; (3) fatigue; (4) dizziness; (5) weight loss; (6) vomiting; (7) anemia; (8) memory loss; and (9) blurred vision and watery eyes. ECF No. 17 at 41. He states that he continues to suffer from these symptoms
as of June 26, 2021. Id. Because it is plausible that Plaintiff’s alleged symptoms are not COVID-19 related, and because Plaintiff makes no allegation that he suffered any severe acute
respiratory symptoms associated with COVID-19 cases, the Court finds his allegations insufficient to support a claim of constitutional harm. The Court has reviewed Plaintiff’s submissions and finds the vague and conclusory assertions
insufficient to state a claim upon which relief may be granted. See e.g. Valentine v. Collier, 993 F.3d 270, 286–89 (5th Cir. 2021).
The Court will grant Plaintiff a second and final opportunity to amend his complaint to correct the deficiencies set forth above. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). Plaintiff may submit a Second
Amended Complaint within thirty (30) days of the date of this Order which must include sufficient facts showing identified Defendants were deliberately indifferent to Plaintiff’s serious health and safety needs concerning COVID-19.
Plaintiff is once again reminded pursuant to the contempt Order signed by Judge McDonald on August 26, 1991, Mr. Demos is prohibited from initiating any civil actions in this District and the Clerk of Court is prohibited from accepting any such actions or from returning such proffers to Mr. Demos. See Case No. CS-91-
027-JPH (citing inter alia, In re Demos, 500 U.S. 16 (1991) (prohibiting him from filing any extraordinary writs without the payment of the docketing fees)). Plaintiff is reminded that the Ninth Circuit Court of Appeals only allowed this
case to go forward because Plaintiff alleged imminent danger of serious physical injury. ECF No. 13 at 2 (“Demos alleged in the complaint that prison officials failed to treat infected persons, require social distancing, or provide testing for staff,
visitors, and incarcerated persons, during the coronavirus pandemic.”). Accordingly, Plaintiff’s SECOND AMENDED COMPLAINT is limited to these assertions.
Plaintiff’s amended complaint shall consist of a short and plain statement showing he is entitled to relief. IT SHALL NOT EXCEED TWENTY-FIVE (25) Plaintiff shall allege with specificity the following:
(1) the names of the persons who caused or personally participated in causing the alleged deprivation of his constitutional rights, (2) the dates on which the conduct of each Defendant allegedly took place, and
(3) the specific conduct or action Plaintiff alleges is unconstitutional.
Furthermore, Plaintiff shall set forth his factual allegations in separate numbered paragraphs. THIS SECOND AMENDED COMPLAINT WILL SUPPLEMENT TO) THE INITIAL AND FIRST AMENDED COMPLAINTS. Plaintiff shall present his complaint on the form provided by the Court. The Second Amended Complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a copy, it may not incorporate any part of the original complaint by reference, and IT MUST BE CLEARLY LABELED THE “SECOND AMENDED COMPLAINT” and cause number 4:20-CV-5062-TOR must be
written in the caption. PLAINTIFF IS CAUTIONED THAT IF HE FAILS TO AMEND WITHIN 30 DAYS AS DIRECTED, THE COURT WILL DISMISS THE
COMPLAINT FOR FAILURE TO STATE A CLAIM UNDER 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).
MALICIOUS, OR FAILS TO STATE A CLAIM, THE AMENDED COMPLAINT WILL BE DISMISSED PURSUANT TO 28 U.S.C. §§ 1915A(B)(1) AND 1915(E)(2).
Alternatively, the Court will permit Plaintiff to voluntarily dismiss his Complaint pursuant to Rule 41(a), Federal Rules of Civil Procedure. Plaintiff may submit the attached Motion to Voluntarily Dismiss the Complaint within thirty (30) days of the date of this Order or risk dismissal under 28 U.S.C. §§ 1915A(b)(1) and
1915(e)(2). Plaintiff is still obligated to pay the full filing fee of $350.00. However, if Plaintiff elects to take a voluntary dismissal within the 30-day period, Plaintiff may
simultaneously file a separate Declaration and Motion to waive collection of the remaining balance of the filing fee in this action. The Court will grant such a motion only for good cause shown. In no event will prior partial payments be refunded to
Plaintiff. Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff’s Motion for Appointment of Counsel, ECF No. 17 at 57, Motion
to Supplement the Pleadings, ECF No. 18, Motion to Amend Complaint, ECF No. 19, Motion for Emergency Relief, ECF No. 20, Motion to Expedite, ECF No. 21, Motion for the Issuance of a Criminal Complaint, ECF No. 22, Motion to Transfer Criminal Issues Entailed in this 42 USC
1983 Action to the US Attorney, ECF No. 23, Motion for Release of Property and Return, ECF No. 25, Motion for Priority Review of the Denial of Basic Human Needs, ECF No. 26, Motion for Pretrial
Conference, ECF No. 27, Motion for Discovery, ECF No. 28, Motion for Judicial Intervention, ECF No. 29, Motion for Preliminary Injunction and Restraining Order, ECF No. 30, Motion for Order Requiring DOC to Provide Unobstructed Communication with the US District Court, ECF
No. 31, Motion for Pretrial Release Due to Covid-19, ECF No. 32, Motion to Advance the Docket, ECF No. 33, Motion for Breach of Bond Violation Order, ECF No. 34, and Motion to Hold a Telephonic of Video Hearing
on Demos’ Motions, ECF No. 35, are DENIED. 2. Plaintiffs allegations against Defendants John Doe - DOC WSP Correctional Officer and John Doe - WSP DOC Shift Lieutenant, and Lynn Clark - WSP Former Captain of the Guards, are DISMISSED WITH PREJUDICE and the Clerk of Court shall TERMINATE Defendants John Doe - DOC WSP Correctional Officer and John Doe - WSP DOC Shift Lieutenant, and Lynn Clark - WSP Former Captain of the Guards from this action. 3. Plaintiffs claims against Defendant Governor Jay R. Inslee are DISMISSED WITH PREJUDICE and the Clerk of Court shall TERMINATE Defendant Inslee from this action. 4. Plaintiff shall AMEND or VOLUNTARILY DISMISS his First Amended Complaint within 30 days of the date of this Order pursuant to the instructions set forth above, or risk dismissal under 28 U.S.C. □□□ 1915A(b)(1) and 1915(e)(2). IT ISSO ORDERED. The Clerk of Court is directed to enter this Order and forward a copy to Plaintiff, along with a form Motion to Voluntarily Dismiss Complaint, and a civil rights complaint form. DATED July 22, 2021. f / © = Tlie O. Kier United States District Judge ORDER DENYING PENDING MOTIONS, TERMINATING CERTAIN DEFENDANTS AND GRANTING SECOND OPPORTUNITY TO AMEND OR
EASTERN DISTRICT OF WASHINGTON
NO: 4:20-CV-5062-TOR Plaintiff, v. MOTION TO VOLUNTARILY JAY INSLEE, Governor of the State of Washington; et al,
Defendants.
Plaintiff JOHN ROBERT DEMOS, JR., requests the court grant his Motion to Voluntarily Dismiss the Complaint pursuant to Rule 41(a), Federal Rules of Civil Procedure. Plaintiff is proceeding pro se; Defendant has not been served in this action. DATED this day of 2021.
JOHN ROBERT DEMOS, JR.