Hunter v. Boylan

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DARRICK L. HUNTER, CASE NO. 3:24-cv-05267-RSM-DWC 11 Plaintiff, v. 12 REPORT AND RECOMMENDATION TAMMY BOYLAN, et al., 13 Noting Date: November 14, 2024 Defendants. 14

15 The District Court has referred this civil rights action to United States Magistrate Judge 16 David W. Christel. Plaintiff Darrick L. Hunter, proceeding pro se and in forma pauperis, filed 17 this action pursuant to 42 U.S.C. § 1983, challenging various aspects of his civil confinement at 18 the Special Commitment Center (“SCC”). Presently before the Court is the Motion to Dismiss 19 filed by Defendants Tammy Boylan and Dominique Miller (collectively “Defendants”). Dkt. 17. 20 After consideration of the relevant record, the Court recommends the Motion to Dismiss 21 be granted and that Plaintiff be given leave to amend his First Amendment retaliation claims 22 against Defendants Boylan and Miller. 23 24 1 I. Background 2 At the time the actions giving rise to this lawsuit occurred, Plaintiff was civilly detained 3 at SCC—a facility owned and operated by the Washington State Department of Social and 4 Health Services that provides mental health treatment for civilly committed sexual offenders who

5 completed their prison sentences. Following screening of his initial complaint, Dkt. 5, the Court 6 declined to serve the complaint but allowed him to file an amended complaint, Dkt. 6. After the 7 Plaintiff filed his Amended Complaint, Dkt. 7, the Court recommended dismissal of several 8 deficient claims, Dkt. 8, which the District Judge assigned to this case adopted. Dkt. 10. As a 9 result, the only claims remaining in this action are Plaintiff’s individual-capacity First 10 Amendment retaliation claims against Defendants Boylan and Miller. See Dkts. 8, 10. In support 11 of his claims, Plaintiff contends both Defendants engaged in unlawful retaliation soon after he 12 threatened to file administrative grievances and/or legal actions against them. Dkt. 7 at 8–9, 11– 13 12, 15–16. 14 Following service of the Amended Complaint, Defendants moved to dismiss, arguing

15 Plaintiff does not state viable retaliation claims. Dkt. 17. Plaintiff filed a response in opposition, 16 Dkt. 19, and Defendants filed a reply in support, Dkt. 20. Thus, the Motion to Dismiss is fully 17 briefed and ripe for consideration. 18 II. Standard of Review 19 A motion to dismiss can be granted only if a plaintiff’s complaint, with all factual 20 allegations accepted as true, fails to “raise a right to relief above the speculative level”. Bell 21 Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). 22 To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has 23 facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct 24 1 alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. 2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556, 570). 3 A complaint must contain a “short and plain statement of the claim showing that the 4 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not necessary; the 5 statement need only give the defendant fair notice of what the . . . claim is and the grounds upon 6 which it rests.” Erickson v. Pardus, et al., 551 U.S. 89, 93 (2007) (internal citations omitted). 7 However, the pleading must be more than an “unadorned, the-defendant-unlawfully-harmed-me 8 accusation.” Iqbal, 556 U.S. at 678. 9 While the Court must accept all the allegations contained in the complaint as true, the 10 Court does not have to accept a “legal conclusion couched as a factual allegation.” Id. 11 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 12 statements, do not suffice.” Id.; Jones v. Community Development Agency, 733 F.2d 646, 649 13 (9th Cir. 1984) (vague and mere conclusory allegations unsupported by facts are not sufficient to 14 state section 1983 claims); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). While the Court 15 is to construe a complaint liberally, such construction “may not supply essential elements of the 16 claim that were not initially pled.” Pena, 976 F.2d at 471. 17 III. Legal Standards Applicable to Civil Detainees 18 A civilly committed individual is entitled to more considerate treatment and conditions 19 than those for whom conditions of confinement are designed to punish. Youngberg v. Romeo, 20 457 U.S. 307, 319–22 (1982). Unlike convicted prisoners, a civilly detained person cannot be 21 subject to treatment or conditions amounting to punishment, but they may be subject to 22 unfavorable treatment if it furthers a nonpunitive interest like the “effective management of a 23 detention facility.” See Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004). Nevertheless, court 24 1 decisions which define the constitutional rights of prisoners can be relied upon to establish a 2 floor for the constitutional rights of civil detainees. Padilla v. Yoo, 678 F.3d 748, 759 (9th Cir. 3 2012); Hydrick v. Hunter, 500 F.3d 978, 989 n. 7 (9th Cir. 2007). Thus, in determining whether 4 Plaintiff sufficiently pled a constitutional violation, the Court looks to decisions defining the

5 rights of prisoners. 6 IV. Discussion 7 In their Motion, Defendants seek dismissal of the Amended Complaint for failure to state 8 cognizable First Amendment retaliation claims. Dkt. 17. Plaintiff counters he sufficiently alleges 9 that both Defendants engaged in unconstitutional retaliation. Dkt. 19. The Court finds that 10 Plaintiff has not stated any viable retaliation claims and recommends the Motion to Dismiss be 11 granted. As Plaintiff did not receive prior notice of the specific deficiencies outlined below, it is 12 further recommended he be given leave to amend his First Amendment retaliation claims against 13 Defendants Boylan and Miller. 14 A. Elements of a First Amendment Retaliation Claim

15 The elements of a First Amendment retaliation claim arising in the custodial context 16 include: (1) an assertion that a state actor took some adverse action against a plaintiff (2) because 17 of (3) the plaintiff’s protected conduct, and that such action (4) chilled the plaintiff’s exercise of 18 his First Amendment rights, and (5) the action did not reasonably advance a legitimate 19 institutional goal. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (quoting Rhodes v. 20 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005)); see also McGary v. Lindquist, No. 13-cv- 21 5130-RBL-JRC, 2015 WL 791730, at *7 (W.D. Wash. Feb. 25, 2015) (applying the same 22 analysis to a retaliation claim filed by a civil detainee). 23

24 1 To satisfy the “because of” element, a plaintiff must allege facts showing his protected 2 conduct was “the substantial or motivating factor behind the defendant’s conduct.” Brodheim, 3 584 F.3d at 1271 (citations and quotations omitted). At the pleading stage, it may be sufficient 4 for a plaintiff to allege that an adverse action was taken soon after a defendant learned of his

5 protected conduct. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). Even so, conclusory 6 allegations and “[m]ere speculation that defendants acted out of retaliation [are] not sufficient.” 7 Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In other words, the facts alleged must support 8 a reasonable inference that retaliation did occur, as opposed to merely showing the order of 9 events make it conceivable that retaliation could have occurred. See Watison, 668 F.3d at 1114 10 (“Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of 11 a chronology of events from which retaliation can be inferred is sufficient to survive dismissal.”) 12 (emphasis added); see also West v. Ulloa, No. 2:17-cv-04892-VBF-KES, 2019 WL 8108724, at 13 *7 (C.D. Cal. Dec. 5, 2019), report and recommendation adopted, 2020 WL 5820980 (C.D. Cal. 14 Sept. 30, 2020), aff’d, No. 20-56167, 2022 WL 17412865 (9th Cir. Dec. 5, 2022) (finding pro se

15 plaintiff’s retaliation claim deficient because, despite suspect timing, the factual allegations were 16 insufficient to support inference of retaliatory animus beyond speculative level); Escamilla v. 17 City of Santa Ana, No. 8:19-cv-02229-JAK-ADS, 2021 WL 4317974, at *1 (C.D. Cal. Sept. 22, 18 2021), aff’d, No. 21-56326, 2023 WL 7040313 (9th Cir. Oct. 26, 2023) (same). 19 To plead a chilling effect, a plaintiff must allege facts showing that the defendant’s 20 actions “would chill or silence a person of ordinary firmness from future First Amendment 21 activities.” Watison, 668 F.3d at 1114. If a defendant’s acts did not actually chill the plaintiff’s 22 protected expression, then the plaintiff must show he suffered harm (or threats of harm) capable 23 of chilling a person of ordinary firmness. See Rhodes, 408 F.3d at 568 n.11 (“[H]arm that is more

24 1 than minimal will almost always have a chilling effect.”) (citing Pratt v. Rowland, 65 F.3d 802, 2 807 (9th Cir. 1995)). 3 As for the fifth element that the action did not reasonably advance a legitimate 4 institutional goal, legitimate institutional goals include “the preservation of internal order and

5 discipline” and “the maintenance of institutional security.” Procunier v. Martinez, 416 U.S. 396, 6 412 (1974), limited by Thornburgh v. Abbott, 490 U.S. 401 (1989). An action that furthers a 7 legitimate institutional goal it is not retaliation. Barnett v. Centoni, 31 F.3d 813, 815–16 (9th Cir. 8 1994) (citing Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)). “A plaintiff successfully 9 pleads this element by alleging, in addition to a retaliatory motive, that the defendant’s actions 10 were arbitrary and capricious or that they were unnecessary to the maintenance of order in the 11 institution.” Watison, 668 F.3d at 1114–15. 12 B. First Amendment Retaliation Claim against Defendant Miller 13 Plaintiff alleges Defendant Miller retaliated against him by submitting a false report that 14 prevented him from obtaining a level advancement at SCC, thereby denying him access to new

15 job opportunities and additional privileges. Id. at 8–9. While his advancement request was 16 pending, on September 17, 2021, Plaintiff met with Defendant Miller to discuss redactions she 17 made to magazines Plaintiff received in the mail. Id. at 8–9. When their discussion reached an 18 impasse, Plaintiff informed Defendant Miller he would be filing a formal grievance and lawsuit 19 against her. Id. at 9. A week later, on September 23, 2021, Plaintiff’s advancement request was 20 reviewed by a committee. Id. at 9. He claims Defendant Miller attended his advancement hearing 21 and submitted a report “falsely” indicating Plaintiff had not displayed “rule-observant behavior.” 22 Id. He contends the advancement committee denied his request “based solely upon the 23 information” provided by Defendant Miller. Id. at 9. Plaintiff notes he “felt” he met the criteria

24 1 for level advancement “because he exhibited SCC rule-observant behavior without having any 2 documented prior behavior redirections, or interventions.” Id. at 8. 3 Plaintiff does not sufficiently link Defendant Miller’s alleged retaliatory action with his 4 protected conduct. Retaliatory motive may be shown in various ways, including the proximate

5 timing of the protected conduct and allegedly retaliatory act and other circumstantial evidence. 6 See Watison, 668 F.3d at 1114. However, mere speculation that defendants acted out of 7 retaliation is not sufficient. See Wood, 753 F.3d at 905. To demonstrate retaliatory motive, 8 Plaintiff appears to rely on the fact that Defendant Miller allegedly submitted her report within a 9 few days of Plaintiff’s threats to file a grievance and lawsuit. See Dkt. 19. However, the 10 Amended Complaint fails to sufficiently allege any facts showing Defendant Miller’s alleged 11 false report was related to Plaintiff’s protected conduct. 12 For example, Plaintiff does not plausibly allege retaliatory motive based on the proximity 13 in time between his statements about filing a formal grievance and lawsuit against Defendant 14 Miller and the advancement hearing. Moreover, the allegations indicate Defendant Miller was

15 involved in Plaintiff’s advancement process prior to these protected statements. Also, Plaintiff 16 fails to allege when Defendant Miller completed the alleged retaliatory report she presented to 17 the advancement committee. Based on the allegations in the Amended Complaint, it is plausible 18 Defendant Miller’s report was completed prior to the protected statements Plaintiff made to 19 Defendant Miller on September 17, 2021, or that it was related to other unprotected interactions 20 between Defendant Miller and Plaintiff. Plaintiff’s allegations are, at best, speculative and 21 conclusory. See West, 2019 WL 8108724, at *7 (concluding temporal proximity alone is 22 insufficient where adverse actions are “well explained by other circumstances”). Therefore, 23

24 1 Plaintiff has not sufficiently alleged Defendant Miller presented a false report to the 2 advancement committee in retaliation for Plaintiff’s protected conduct. 3 C. First Amendment Retaliation Claim against Defendant Boylan 4 Plaintiff alleges Defendant Boylan engaged in unlawful retaliation by “falsely” reporting

5 that he possessed unauthorized documents, which prompted a search of his cell and seizure of 6 various personal items. Dkt. 7 at 11–12, 15. Plaintiff’s current1 disagreement with Defendant 7 Boylan began on October 20, 2022, when he saw her in the mailroom opening an envelope 8 marked “legal mail” that was sent to him by his attorney. Id. at 11. He further alleges Defendant 9 Boylan seized thirteen pages of legal documents “containing photographic images” and held 10 those documents for review. Id. Plaintiff told Defendant Boylan that he objected to the seizure 11 and review of his documents and threatened “to file legal actions against her.” Id. 12 Plaintiff left the mailroom and immediately contacted SCC’s Legal Coordinator, Nicole 13 Brees, about the documents seized by Defendant Boylan. Id. He alleges Ms. Brees determined 14 the disputed documents “complied with all legal mail policies [at SCC]” and “directed that the

15 documents be returned to [Plaintiff] as reviewed and approved by her.” Id. at 11. On October 24, 16 2022, Defendant Boylan allegedly received a form signed by Ms. Brees indicating the disputed 17 documents were returned to Plaintiff “as approved by her.” Id. at 12. Plaintiff asserts that, despite 18 this approval, Defendant Boylan “falsely reported” to SCC management he “obtained 19 photographs from Ms. Brees [that he] was not authorized to have in his possession.” Id. SCC 20 officials searched Plaintiff’s cell on October 26, 2022, during which the disputed documents, 21 fifty-five additional photographs, and other items not listed on the search report were seized. Id. 22

1 Plaintiff also describes a disagreement with Defendant Boylan occurring in June 2021 and alleges 23 Plaintiff filed a formal grievance against Defendant Boylan at that time. Dkt. 7 at 7. There is no allegation of retaliation flowing from the June 2021 disagreement or grievance. 24 1 Plaintiff does not show Defendant Boylan acted as she did “because of” his protected 2 conduct. Brodheim, 584 F.3d at 1271. As with Defendant Miller, Plaintiff again appears to rely 3 on timing to show a causal connection between Defendant Boylan’s conduct and the threats to 4 sue, but the alleged sequence of events is insufficient to establish a reasonable inference of

5 retaliation. See West, 2019 WL 8108724, at *7; Escamilla, 2021 WL 4317974, at *1. In 6 particular, Plaintiff alleges he threatened to file legal action against Defendant Boylan on 7 October 20, 2022. Id. at 11–12. Four days later, Defendant Boylan learned that the pages she 8 seized had been returned to Plaintiff. Id. at 12. Defendant Boylan then reported what she learned 9 about the disputed documents to SCC leadership. Id. Specifically, Defendant Boylan allegedly 10 reported that Plaintiff obtained the disputed documents from Ms. Brees and that he was not 11 authorized to possess them. Id. 12 The alleged sequence of events suggests Defendant Boylan acted as she did, and when 13 she did, because the disputed documents were returned to Plaintiff. Because the timing of 14 Defendant Boylan’s conduct is explainable by other circumstances, temporal proximity is not

15 enough to support an inference of retaliation. See West, 2019 WL 8108724, at *7. Further, the 16 Court notes that Plaintiff alleges he filed grievances against Defendant Boylan in June of 2021 17 and Defendant Boylan did not take any adverse actions against Plaintiff at that time. These 18 allegations tend to minimize any alleged link between the timing of his October 2022 grievance 19 and the alleged retaliatory conduct. Plaintiff’s allegations require speculation to conclude that 20 Defendant Boylan made her report because of his protected conduct. Therefore, Plaintiff has not 21 sufficiently alleged Defendant Boylan made a false report to SCC leadership in retaliation for 22 Plaintiff’s protected conduct. 23

24 1 As the Amended Complaint does not establish Plaintiff protected conduct was the 2 substantial or motivating factor behind either Defendant’s alleged adverse action, Plaintiff has 3 failed to state a cognizable retaliation claim against Defendants Boylan and Miller. Accordingly, 4 the undersigned recommends the Motion to Dismiss (Dkt. 17) be granted.

5 D. Dismissal with Leave to Amend 6 Having concluded that Plaintiff’s claims should be dismissed for failure to state a claim, 7 the Court next considers whether he should be granted leave to cure the deficiencies through 8 amendment. The Ninth Circuit has “established that a pro se litigant bringing a civil rights suit 9 must have an opportunity to amend the complaint to overcome deficiencies unless it is clear that 10 they cannot be overcome by amendment.” Eldridge v. Block, 832 F.2d 1132, 1135–36 (9th Cir. 11 1987). Although Plaintiff does not allege sufficient facts to meet each element of his retaliation 12 claims, he was not notified of deficiencies discussed here and has not been given an opportunity 13 to prepare amended pleadings with such notice. At this time, the Court cannot definitively 14 conclude Plaintiff will be unable to overcome these deficiencies.

15 Accordingly, the Court recommends that Plaintiff be given leave to amend so that he may 16 attempt to cure the deficiencies outlined above. 17 V. Conclusion 18 For the reasons outlined above, the undersigned recommends the Motion to Dismiss filed 19 by Defendants Tammy Boylan and Dominique Miller (Dkt. 17) be granted. It is further 20 recommended that Plaintiff be granted leave to amend his First Amendment retaliation claims 21 against Defendant Boylan and Miller. 22 Objections to this Report and Recommendation, if any, should be filed with the Clerk and 23 served upon all parties to this suit not later than fourteen (14) days from the date on which this

24 1 Report and Recommendation is signed. Failure to file objections within the specified time may 2 affect your right to appeal. Objections should be noted for consideration on the District Judge’s 3 motions calendar fourteen (14) days from the date they are filed. Responses to objections may 4 be filed by the day before the noting date. If no timely objections are filed, the matter will be

5 ready for consideration by the District Judge on November 14, 2024. 6 Dated this 31st day of October, 2024. 7 A 8 David W. Christel United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24