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Johnson v. Subia

September 22, 2010

DAVID B. JOHNSON, PLAINTIFF,
v.
R.J. SUBIA, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: George Foley, Jr. United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Motion to Dismiss (#41) and Motion to Proceed (#44)

This matter is before the Court on Defendants R.L. Heise, Jr. and C. Campbell's Motion to Dismiss (#41), filed November 24, 2009; Plaintiff David B. Johnson's Opposition to Motion to Dismiss (#42), filed December 8, 2009; Defendants' Reply in Support of Motion to Dismiss (#43), filed December 17, 2009; and Plaintiff's Motion of Court to Proceed (#44)

BACKGROUND

On September 25, 2007, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983, alleging that officials at the Mule Creek State Prison had violated his civil rights. (#1). The Court screened Plaintiff's Complaint and found that his claims of retaliation against Defendants C. Campbell and R.L. Heise were cognizable claims for relief. (#9). However, the Court dismissed Plaintiff's due process claims against Defendants R. Williams and R.J. Subia as failing to state a claim upon which may be granted. (Id.) Plaintiff was granted leave to amend his complaint if he believed he could cure the deficiencies in the claims against Defendants R. Williams and R.J. Subia. (Id.)

Plaintiff filed his Amended Complaint on April 10, 2008. (#13). After reviewing the Amended Complaint, the Court found that Plaintiff had failed to state a cognizable claim against any Defendant.

(#15). However, the Court noted that Plaintiff "stated a claim for retaliation in his initial complaint,*fn1 and it is not clear that plaintiff intended to withdraw that claim" and granted Plaintiff one more opportunity to correct the deficiencies. (Id.)

On June 16, 2008, Plaintiff filed his Third Amended Complaint (#16), which the Court screened pursuant to 28 U.S.C. §1915A (#19). According to Plaintiff's Third Amended Complaint, on June 4, 2007, Correctional Officer Campbell destroyed his personal property without cause and failed to give Plaintiff a receipt for the property. (#16 at 7). On June 16, 2007, Plaintiff filed an administrative "602 complaint" against Campbell related to the June 4 incident. (Id.) When Plaintiff received no response to his 602 complaint from prison administrators, he filed another 602 complaint against Campbell on June 22, 2007. (Id.) Plaintiff alleges that the next day, June 23, he wrote out another 602 complaint form and gave it directly to Campbell. (Id. at 8).

According to the Third Amended Complaint, Defendant Campbell had a different account of what occurred on June 23. Campbell reported informed Sergeant Heise that Plaintiff had thrown the folded 602 complaint form at Campbell, rather than handing it to him, and that the folded papers struck Campbell in the chest. (Id. at 3). Campbell gave the 602 complaint to Heise and filed a complaint for battery against Plaintiff based on the incident. (Id. at 7-8). Plaintiff alleges that the 602 complaint form was never filed. (Id. at 8). Instead, Defendant Heise allegedly informed Plaintiff that the 602 complaint would not be filed as Heise had destroyed it. (Id. at 8). A month later, the prison held a disciplinary hearing on the charge that Plaintiff had committed battery. Plaintiff was found guilty. (Id. at 7-9). As a consequence, Plaintiff had 150 days of time credit revoked and was placed in the Security Housing Unit (SHU) for one year. (Id. at 9). Plaintiff successfully appealed this adjudication, arguing there was not sufficient evidence to prove a charge of battery, and his time credits were restored. (Id.)

Based on these allegations, Plaintiff claimed that 1) Campbell violated his First Amendment and Fourteenth Amendment rights by destroying his property, failing to respond to Plaintiff's numerous 602 complaints, failing to file Plaintiff's 602 complaint and charging Plaintiff with battery in retaliation for Plaintiff's filing of complaints, 2) Heise violated his First Amendment and Fourteenth Amendment rights by destroying Plaintiff's July 23, 2007 602 complaint and assisting Campbell in filing a battery charge against Plaintiff in retribution for Plaintiff's filing of 602 complaint forms, 3) R. Williams denied Plaintiff his Fourteenth Amendment due process rights by finding him guilty of battery based on insufficient evidence. (#16).

In screening Plaintiff's Third Amended Complaint, the Court dismissed*fn2 several of Plaintiff's causes of action for failure to state a cognizable claim that a constitutional right had been violated. (#19; #22). The Court dismissed Plaintiff's Fourteenth Amendment due process claims against Defendant Williams because Plaintiff failed to sufficiently demonstrate the deprivation of a specific liberty interest as placement in disciplinary segregation did not constitute "a major disruption" in Plaintiff's environment. (#19 at 3 (citing Sandin v. Conner, 515 U.S. 472, 486-87 (1995); #15 at 3). In addition, the Court found that Plaintiff's allegations that Defendant Campbell destroyed his personal property and refused to respond to Plaintiff's grievances regarding the matter were insufficient to state a claim under the First Amendment.*fn3 (#19at 2-3). However, the Court found that Plaintiff had stated a cognizable claim for retaliation under the First Amendment against Defendants Campbell and Heise based on his allegation that Defendants denied Plaintiff the right to file prison grievances. (#19 at 3).

As a result, this action is proceeding solely upon Plaintiff's First Amendment retaliation claim that Campbell and Heise denied him the right to file prison grievances and falsely charged him*fn4 with battery.

DISCUSSION

I. Plaintiff's First Amendment Retaliation Claim Based on Allegedly False Claim of Battery

In it's screening of Plaintiff's Third Amended Complaint, the Court dismissed all causes of action except for Plaintiff's claim of retaliation under the First Amendment. Defendants claim in their Motion to Dismiss that Plaintiff's sole remaining claim is for retaliation by Defendants Campbell and Heise based on the allegations that Defendants denied Plaintiff the right to file prison grievances. ...


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