UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
GUNNAR BJORN ERICSSON, Case No. 3:22-cv-00297-DCN Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE
DEPUTY WARDEN AMY B. ANDERSON and WARDEN TEREMA D. CARLIN,
Defendants.
The Clerk of Court conditionally filed Plaintiff Gunnar Bjorn Ericsson’s Complaint as a result of Plaintiff’s status as an inmate and in forma pauperis request. The Court now reviews the Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file an amended complaint if Plaintiff intends to proceed. 1. Pleading Standards and Screening Requirement A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under modern pleading standards, Rule 8 requires a complaint to “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, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Iqbal/Twombly “facial plausibility” standard is met when a complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[D]etailed factual allegations” are not required, but a plaintiff must offer “more than ... unadorned, the-defendant-unlawfully-
harmed-me accusation[s].” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted). Bare allegations that amount to a mere restatement of the elements of a
cause of action, without adequate factual support, are not enough. The Prison Litigation Reform Act (“PLRA”)1 requires that the Court review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary dismissal is appropriate. The Court must dismiss any claims
that do not have adequate factual support or are frivolous or malicious. 28 U.S.C. §§ 1915(e)(2) & 1915A. The Court also must dismiss claims that fail to state a claim upon which relief may be granted or that seek monetary relief from a defendant who is immune from such relief. Id. These last two categories—together with claims that fall outside a federal court’s
narrow grant of jurisdiction—encompass those claims that might, or might not, have factual support but nevertheless are barred by a well-established legal rule.
1 Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq. The Court liberally construes the pleadings to determine whether a case should be dismissed for a failure to plead sufficient facts to support a cognizable legal theory or for the absence of a cognizable legal theory. The critical inquiry is whether a constitutional
claim, however inartfully pleaded, has an arguable factual and legal basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (discussing Federal Rule of Civil Procedure 12(b)(6)), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (stating that Rule 12(b)(6) authority to dismiss claims was expanded by the PLRA, giving courts power to dismiss deficient claims, sua sponte, before
or after opportunity to amend). 2. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction, currently incarcerated at the Idaho Correctional Institution in Orofino, Idaho. Plaintiff claims that, in retaliation for Plaintiff’s use of the prison grievance process, Defendant
Anderson ordered a targeted search of Plaintiff’s cell. Compl., Dkt. 3, at 2. Correctional officers confiscated Plaintiff’s image catalogs. Id. Unidentified mailroom officers also denied Plaintiff access to other image catalogs. It appears that although inmates are not allowed to possess photos, the catalog images were on standard white paper and therefore, according to Plaintiff, were “within policy.” Id. at 2–3.
Plaintiff filed grievances on the subject and contends the grievances were improperly dismissed or denied. Id. Plaintiff states that, after he filed these grievances, the warden continued to “subject[] [Plaintiff] to retaliation” for using the grievance process. However, Plaintiff does not identify any particular adverse action taken by any Defendant after Plaintiff complained about the confiscation of his materials. Id. at 3. Officers responding to Plaintiff’s grievances described the images as “photos,” and the confiscation sheet for the image catalogs classifies them as “Thumbnails.” Dkt. 3-1 at
2, 8. Plaintiff was informed that the images “were destroyed more than 45 days after the confiscation per Policy.” Id. at 8. Plaintiff asserts that Defendants’ conduct violated of the First Amendment and the Due Process Clause of the Fourteenth Amendment.2 Compl. at 2–3. 3. Discussion
Plaintiff has not stated a claim upon which relief may be granted. The Court will, however, grant Plaintiff 60 days to amend the Complaint. Any amended complaint should take into consideration the following. A. Section 1983 Claims Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the
Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Prison officials generally are not liable for damages in their individual capacities under § 1983 unless they personally participated in the alleged constitutional violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677 (“[E]ach
Government official, his or her title notwithstanding, is only liable for his or her own
2 Plaintiff also cites the Fifth Amendment’s Due Process Clause. That Clause, however, applies only as against federal, not state, government actors. Thus, the Fifth Amendment’s due process protections are not implicated by the allegations in the Complaint. misconduct.”). Section 1983 does not allow for recovery against an employer or principal simply because an employee or agent committed misconduct, Taylor, 880 F.2d at 1045, and a defendant whose only role in a constitutional violation involved the denial of an
administrative grievance cannot be held liable under § 1983, Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). However, “[a] defendant may be held liable as a supervisor under § 1983 ‘if there exists ... a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). A plaintiff can establish this causal connection by alleging that a defendant (1) set in motion a series of acts by others that violated the Constitution, or knowingly refused to terminate a series of such acts, which the supervisor “knew or reasonably should have known would cause others to inflict a constitutional injury”; (2) knowingly failed to act or acted improperly “in the training,
supervision, or control of his subordinates”; (3) acquiesced in the constitutional deprivation; or (4) engaged in “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 1205–09 (internal quotation marks omitted). A plaintiff cannot simply restate these standards of law in a complaint. Instead, a plaintiff must provide specific facts supporting the elements of each claim and must allege
facts showing a causal link between each defendant and Plaintiff’s injury or damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679. i. First Amendment Claims Plaintiff’s First Amendment claims appear to fall into two categories. First, Plaintiff claims that he was deprived of his First Amendment rights when prison officials denied his grievances. Second, he argues that he suffered retaliation, including a cell search, from prison officials for using the grievance process.3
As to Plaintiff’s first claim, there is no independent constitutional right to a prison grievance process.4 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of entitlement to a grievance procedure.”); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison grievance procedure.”). If a prison does have a grievance process, the
prison must ensure that prisoners have adequate access to that process as required by the constitutional right to petition the government for redress of grievances. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (“[P]rison officials may not punish an inmate merely for using hostile, sexual, abusive or threatening language in a written grievance.”) (internal quotation marks omitted), abrogated on other grounds by Shaw v. Murphy, 532
U.S. 223, 230 n.2 (2001). Here, however, Plaintiff was able to access and use the grievance process as intended. Therefore, he has no plausible First Amendment claim based on prison officials’ responses to his grievances. Plaintiff’s second First Amendment claim—retaliation—warrants more discussion. The First Amendment includes the right to be free from retaliation for exercising
3 It is unclear at this point whether the cell search was conducted before or after Plaintiff utilized the grievance process. Plaintiff does not identify any potential retaliatory action other than the cell search. 4 However, an official’s interference with the grievance process can serve as an excuse for an inmate’s failure to exhaust administrative remedies. See Albino v. Baca, 747 F.3d 1162, 1172–73 (9th Cir. 2014) (en banc). constitutional rights. An inmate asserting a retaliation claim must show the following: “(1) ... that a state actor took some adverse action against the inmate (2) because of (3) that prisoner’s protected conduct, ... that such action (4) chilled the inmate’s exercise of his
First Amendment rights, and (5) [that] the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). “[B]are allegations” of a retaliatory motive are insufficient to support a retaliation claim. Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985); see also Wood v. Yordy,
753 F.3d 899, 905 (9th Cir. 2014) (“We have repeatedly held that mere speculation that defendants acted out of retaliation is not sufficient.”). Rather, when analyzing a prison official’s proffered reasons for allegedly retaliatory conduct, the Court must “afford appropriate deference and flexibility” to that official. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (internal quotation marks omitted).
Not every retaliatory act taken by an official can be considered an adverse action that chills the exercise of protected speech. The proper inquiry asks whether the official’s action “would chill or silence a person of ordinary firmness from future First Amendment activities.” Mendocino Envt’l Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999) (internal quotation marks omitted). If it would not, then “the retaliatory act is simply de
minimis and therefore outside the ambit of constitutional protection.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (internal quotation marks omitted); see also Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006) (“The [de minimis] standard achieves the proper balance between the need to recognize valid retaliation claims and the danger of federal courts embroiling themselves in every disciplinary act that occurs in state penal institutions.”) (internal quotation marks and alteration omitted). A plaintiff asserting a retaliation claim under § 1983 also “must show a causal
connection between a defendant’s retaliatory animus and [the plaintiff’s] subsequent injury.” Hartman v. Moore, 547 U.S. 250, 259 (2006) (Bivens action). Retaliatory motivation is not established simply by showing an adverse action by the defendant after protected speech. Instead, the plaintiff must show a nexus between the two. Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (stating that a retaliation claim cannot rest
on “the logical fallacy of post hoc, ergo propter hoc, literally, ‘after this, therefore because of this’”). Thus, although the timing of an official’s action can sometimes constitute circumstantial evidence of retaliation—if, for example, an adverse action was taken immediately after the official learned about an inmate’s exercise of protected conduct— there generally must be something more than mere timing to support an inference of
retaliatory intent. Pratt, 65 F.3d at 808. The causal nexus requirement of a retaliation claim is a “but-for” causation test. If the adverse action would have been taken even without the inmate’s exercise of protected conduct, the plaintiff cannot satisfy the causation element of a retaliation claim. Hartman, 547 U.S. at 260.
Finally, even if an inmate shows that his protected conduct was the but-for cause of an adverse action by a prison official, the inmate’s retaliation claim fails so long as that action also reasonably advanced a legitimate penological interest. The state unquestionably has a legitimate interest in maintaining institutional order, safety, and security in its prisons, Rizzo, 778 F.2d at 532, and the “plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains,” Pratt, 65 F.3d at 806.
Plaintiff’s contentions of a retaliatory motive on the part of Defendants are nothing more than bare, speculative allegations. See Wood, 753 F.3d at 905; Rizzo, 778 F.2d at 532 n.4. Although Plaintiff alleges that he was subjected to a targeted cell search and. perhaps, other unidentified actions by correctional officers after he engaged in protected conduct, that is simply not enough to state a plausible retaliation claim. See Pratt, 65 F.3d at 808.
Further, the Complaint does not support a reasonable inference that a retaliatory motive was the but-for cause of the cell search or that the search was not rationally related to a legitimate penological interest. Cell searches are unquestionably necessary to the safety, security, and orderly operation of the prison, and Plaintiff has failed to plausibly allege that, had officials not acted with a retaliatory motive, his cell would not have been
searched. See id. at 806; Rizzo, 778 F.2d at 532; Hartman, 547 U.S. at 260. ii. Due Process Claims Plaintiff also claims that Defendants deprived him of his property—the image catalogs—without adequate notice. The Due Process Clause of the Fourteenth Amendment prohibits the government
from depriving an individual of life, liberty, or property without due process of law. However, the right to due process is “not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986) (emphasis omitted)). Moreover, even the intentional deprivation of personal property by prison officials will not support a due process claim under § 1983 if the prisoner has an adequate remedy under state law. Hudson v. Palmer, 468 U.S. 517, 533 (1984).
Idaho has adopted the Idaho Tort Claims Act (“ITCA”), Idaho Code § 6-901, et seq., to provide a remedy for citizens injured by the tortious acts of governmental entities, officials, and employees. As a general rule, “every governmental entity is subject to liability for money damages arising out of its negligent or otherwise wrongful acts or omissions and those of its employees acting within the course and scope of their
employment or duties.” Idaho Code § 6-903(1). One exception to this rule is that “any law enforcement officer,” acting “without malice or criminal intent and without gross negligence or reckless, willful and wanton conduct,” shall not be liable for a claim that “[a]rises out of the detention of any goods or merchandise.” Idaho Code § 6-904B(1). However, even assuming that this exception applies in the prison context, it would not
immunize prison officials from liability for acts that are grossly negligent, reckless, or willful and wanton. Accordingly, to the extent that Plaintiff is claiming that prison officials negligently confiscated his property—perhaps by mistakenly believing the items were prohibited by prison policy—he has no due process claim regardless of the existence of a post-
deprivation state law remedy for negligent conduct. With respect to his allegations that prison employees recklessly or intentionally deprived him of his property, he has (or had) a potential remedy under the ITCA. Therefore, Plaintiff’s due process claims are implausible and must be dismissed. B. Potential State Law Claims In addition to § 1983 claims, Plaintiff purports to assert state law claims, see Compl. at 1 (checking box referring to state law claims), although Plaintiff fails to identify any
such claims, id. at 2–3. Because the Complaint fails to state a federal claim upon which relief may be granted, the Court declines to exercise supplemental jurisdiction over any potential state law claims. See 28 U.S.C. § 1367(c). If Plaintiff is allowed to proceed on a federal claim in an amended complaint, and if the amended complaint identifies and states a plausible state law claim, the Court will reconsider the issue of supplemental jurisdiction.
4. Standards for Amended Complaint If Plaintiff chooses to amend the Complaint, Plaintiff must demonstrate how the actions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v. Ehler, 499 U.S. 432 (1991). Plaintiff must also allege a sufficient causal connection between each defendant’s actions and the claimed deprivation. Taylor, 880 F.2d at 1045;
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss” or to survive screening under 28 U.S.C. §§ 1915 and 1915A. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Iqbal, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” (internal quotation marks and alteration omitted)). Rather, for each cause of action against each defendant, Plaintiff must state the following: (1) the name of the person or entity that caused the alleged deprivation of Plaintiff’s constitutional rights; (2) facts showing the defendant is a state actor (such as state employment or a state contract) or a private entity performing a state function; (3) the dates on which the conduct of the defendant allegedly took place; (4) the specific conduct
or action Plaintiff alleges is unconstitutional; (5) the particular constitutional or statutory provision Plaintiff alleges has been violated; (6) facts alleging that the elements of the violation are met—for example, Plaintiff must allege facts satisfying the elements of an First Amendment or due process claim; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief Plaintiff is seeking from each defendant.
Further, any amended complaint must contain all of Plaintiff’s allegations in a single pleading and cannot rely upon, attach, or incorporate by reference other pleadings or documents. Dist. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended. The proposed amended pleading must be submitted at the time of filing a motion
to amend.”); see also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“[An] amended complaint supersedes the original, the latter being treated thereafter as non- existent.”), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d 896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering
judgment against a party named in the initial complaint, but not in the amended complaint). Plaintiff must set forth each different factual allegation in a separate numbered paragraph. The amended complaint must be legibly written or typed in its entirety, and it should be clearly designated as an “Amended Complaint.” Plaintiff’s name and address should be clearly printed at the top left corner of the first page of each document filed with the Court. If Plaintiff files an amended complaint, Plaintiff must also file a “Motion to Review
the Amended Complaint.” If Plaintiff does not amend within 60 days, or if the amendment does not comply with Rule 8, this case may be dismissed without further notice. See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”).
ORDER IT IS ORDERED: 1. The Complaint fails to state a claim upon which relief may be granted. Plaintiff has 60 days within which to file an amended complaint as described above. If Plaintiff does so, Plaintiff must file (along with the amended
complaint) a Motion to Review the Amended Complaint. Alternatively, Plaintiff may file a Notice of Voluntary Dismissal if Plaintiff no longer intends to pursue this case.5 2. If Plaintiff does not file a timely amended complaint, this case may be dismissed with prejudice and without further notice for failure to state a claim
upon which relief may be granted, failure to prosecute, or failure to comply
5 A voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) is not a dismissal for frivolity, for maliciousness, or for failure to state a claim upon which relief may be granted and, therefore, does not count as a “strike” under 28 U.S.C. § 1915(g). with a Court order. 3. Because an amended complaint is required for Plaintiff to proceed, Plaintiffs request for appointment of counsel (contained in the Complaint) is DENIED without prejudice. Plaintiff may renew the request for counsel in an amended complaint.
aa DATED: January 11, 2023 ‘a ay —_— ™~, ° / % dill.” -- ipa Ay David C. Nye = Chief U.S. District Court Judge
INITIAL REVIEW ORDER BY SCREENING JUDGE - 14