Joseph v. Department of Corrections et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SERENA MICHELLE JOSEPH,
Plaintiff,
v.
DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
Case No. 3:20-CV-00294-SLG-KFR
PROPOSED FINDINGS OF FACT AND RECOMMENDATION FOR THE
DISPOSITION OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
I. 	PROCEDURAL HISTORY
On November 19, 2020, Plaintiff Serena Michelle Joseph, an inmate at
Hiland Mountain Correctional Center (“Hiland”), filed a pro se complaint
against the Alaska Department of Corrections (“DOC”), a government entity,
and the following people both individually and as employees of the DOC: Anita
McCarter 	(“McCarter”), 	Sidney 	Wood 	(“Wood”), 	Roberta 	Maseuli
(“Maseuli”), 	Ty 	Johnston 	(“Johnston”), 	Gloria 	Johnson 	(“Johnson”), 	and
Angelina Fainuleilei (“Fainuleilei”).1 Plaintiff originally alleged violations of
her civil rights under the First, Fourteenth, and Sixth Amendments of the
1 Dkt. 1.
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Constitution pursuant to the Civil Rights Act of 1871, 42 United States Code
Section 1983 (“Section 1983”).2 	Twelve days later, Plaintiff amended her
complaint, 	adding 	defendants Steven 	West 	(“West”) 	and 	Clifton Booher
(“Booher”).3 	Defendants answered on March 22, 2021, denying that they
violated Plaintiff’s civil rights and asserting affirmative defenses to Plaintiff’s
claims.4
The Court appointed counsel for Plaintiff on September 15, 2021,5 and,
through counsel, Plaintiff filed a Third Amended Complaint on October 31,
2021.6 	In her Third Amended Complaint, Plaintiff added defendant Nancy
Dahlstrom 	(“Dahlstrom”), 	and 	maintained 	her 	original 	claims 	that 	the
previously-named eight defendants, and Dahlstrom, in both their individual
and 	official 	capacities, 	along 	with 	DOC, 	conspired 	to 	violate 	her 	First
Amendment right to free speech, her Fourteenth Amendment right to equal
protection, and her Sixth Amendment right to a lawyer and access to the
courts.7 Two weeks later, Defendants filed a Motion to Dismiss for Failure to
2 Id.
3 Dkt. 3. This amended pleading maintained the original claims.
4 Dkt. 11 at 4.
5 Dkt. 27.
6 Dkt. 32.
7 Id. at 2.
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State a Claim and Memorandum in Support of Motion to Dismiss (hereinafter
“Motion to Dismiss”).8
On December 29, 2021, Plaintiff filed her response in opposition to
Defendant’s Motion to Dismiss (hereinafter “Opposition”),9 as well as a
Notice of Errata to correct an oversight in the filing of her Third Amended
Complaint, which failed to properly incorporate documents that had been
previously filed in the original and amended complaints.10 	In her Opposition,
Plaintiff moved to dismiss her Sixth Amendment claim, as well as her claims
against DOC, and Defendants Dahlstrom, McCarter, Wood, and Maseuli. 	On
January 21, 2022, Defendants replied to Plaintiff’s Opposition.11
II. 	MOTION PRESENTED
At this time the following general claims remain for this Court to
consider: that Defendants retaliated against Plaintiff for exercising her First
Amendment right to free speech, and that they denied her equal protection
under the Fourteenth Amendment. Plaintiff alleges Defendants, who were
employees of Hiland at the time of the incidents alleged in her Third Amended
Complaint, 	acted 	in 	both 	their 	individual 	and 	official 	capacities, 	and
8 Dkts. 33 and 34.
9 Dkts. 40 and 41.
10 Dkt. 42.
11 Dkt. 45.
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conspired with one another to violate her rights directly, or by refusing to
intercede to prevent ongoing violations of those rights.
Plaintiff makes three specific allegations. 	First, Plaintiff alleges that
Defendants acted outside the scope of their employment to violate Plaintiff’s
constitutionally guaranteed First Amendment right to free speech by ignoring
her complaints about officer actions she filed through the prison grievance
system, and retaliating against her for having made those complaints, thereby
interfering with her right to redress, and, more generally, creating a custom
to ignore prisoners’ valid grievances.12 	Second, Plaintiff alleges Defendants
violated her Fourteenth Amendment right to equal protection by treating her
differently for being black and conspiring to ignore her grievance about a
racist remark.13 	Third, Plaintiff alleges that Defendants West, Booher, and
Johnston failed to intervene and correct the retaliatory and discriminatory
acts of Fainuleilei.14
12 Dkt. 32 at 6-7.
13 Id. at 7.
14 Id.
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Plaintiff requests a jury trial.15 She seeks injunctive relief against each
remaining defendant, asking that they be fired from their positions within
DOC.16 Additionally, Plaintiff seeks nominal damages.17
The Court considers the facts presented in Plaintiff’s Third Amended
Complaint, 	and 	pursuant 	to 	Local 	Rule 	1.1(a)(4), 	her 	Notice 	of 	Errata,
including attached exhibits.18 The Court also considered Defendant’s answer
and Motion to Dismiss, and all responses and replies to the Motion to Dismiss.
For the following reasons, this Court recommends the District Court GRANT
IN PART Defendants’ Motion to Dismiss, and DENY IT IN PART.
III. 	FACTUAL BACKGROUND
a. PARTIES
Plaintiff 	is 	an 	inmate 	at 	Hiland. 	At 	times 	relevant 	to 	Plaintiff’s
Complaint, Johnson was a superintendent, Booher was a lieutenant, West and
15 Dkt. 32 at 9.
16 Id.
17 Id. In her Third Amended Complaint, Plaintiff sought punitive and
compensatory damages from DOC. She also sought in junctive relief both in the
general firing of each individually named prison official, and in the specific
removal of Dahlstrom from her position as DOC Commissioner. Because Plaintiff
withdrew her claims against DOC and Dahlstrom, McCarter, Wood, and Maseuli,
injunctive relief against the remaining defendants and nominal damages are the
only remaining prayers for relief remaining from the Third Amended Complaint.
18 See Chudacoff v. University Medical Center, 649 F.3d 1143, 1152 (9th Cir. 2011).
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Johnston were sergeants, and Fainuleilei was a correctional officer at the
facility.
b. FACTUAL ALLEGATIONS19
i. 	Plaintiff Files a Complaint with Johnson in Response to
“Disrespectful” Comments by Fainuleilei.
In the middle of March 2020, during routine shift checks at Hiland,
Fainuleilei said to Plaintiff, “you better get your people or I am gonna close
this day room down.”20 Plaintiff replied, “What makes her my ’people’ cause
I am black?”21 Fainuleilei responded, “Bitch please.”22
Following 	Fainuleilei’s 	statement, 	Plaintiff 	wrote 	a 	Request 	for
Information 	(“RFI”) 	to 	Johnson, 	the 	Hiland 	superintendent, 	about 	the
“disrespectful manner in which [Fainuleilei] talks to us inmates.”23 Plaintiff
took her RFI to West, a sergeant at Hiland, and asked him to deliver it to
Johnson’s box, which he agreed to.24
19 For purposes of this summary of factual allegations made by Plaintiff, the Court
“accept[s] all material allegations of fact as true,” “construe[s] the complaint in a
light most favorable to the [Plaintiff]” and accepts as true all reasonable
inferences which can be drawn from the facts alleged. Broam v. Bogan, 320 F.3d
1023, 1028 (9th Cir. 2003).
20 Dkt. 42-1 at ¶ 1 and 3.
21 Dkt. 42-1 at ¶ 4.
22 Dkt. 43-1 at ¶ 5.
23 Dkt. 42-12 page 1; Dkt 42-1 at ¶ 6 continuing to 42-2.
24 Dkt. 42-2 at ¶ 6.
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The next morning, Plaintiff raised her issue to an officer who was on
duty and 	was advised by the officer to speak with Booher, the Hiland
lieutenant.25 Plaintiff went to Booher’s office and told him about Fainuleilei’s
actions. Booher told Plaintiff that he would check later that morning with
Johnson to see if she got Plaintiff’s RFI and instructed Plaintiff to come back
to his office later.26 When Plaintiff returned, Booher told her that Johnson did
not receive her RFI and instructed Plaintiff to write another RFI, which she
did. Booher advised Plaintiff that he would give it to Johnson.27
ii. 	Plaintiff Is Moved to Another Unit within Hiland.
At the end of May or early June, 2020, Fainuleilei woke Plaintiff and
told her she was moving to a different cell.28 Plaintiff asked a housing
sergeant why she had to move and was told it was because of her relationship
with another inmate.29 Plaintiff denied any relationship and told the housing
sergeant that Fainuleilei was “out to get” her because of the RFI Plaintiff
submitted about Fainuleilei in March 2020.30 Plaintiff wrote another RFI to
Johnson complaining about the move and Fainuleilei’s “harassment.”31
25 Dkt. 42-2 at ¶ 8.
26 Dkt. 42-2 at ¶ 9.
27 Dkt. 42-2 at ¶ 10.
28 Dkt. 42-2 at ¶ 12.
29 Dkt. 42-3 at ¶¶ 12, 13.
30 Dkt. 42-2 at ¶ 13.
31 Dkt. 42-2 at ¶ 14.
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iii. 	Plaintiff Files a Formal Grievance over the Chair Policy
at Hiland.
On July 18, 2020, Plaintiff and other inmates were sitting in chairs near
Plaintiff’s cell.32 	During a routine inmate count, Fainuleilei told the inmates
that they were not allowed to have chairs outside their cells and instructed
the inmates to move the chairs.33 	When Fainuleilei returned to the area,
Plaintiff 	and 	another 	inmate 	still 	had 	chairs 	in 	front 	of 	their 	doors.34
Fainuleilei told Plaintiff she could not have a chair in front of her door but
allowed the other inmate to keep her chair where it was.35
On July 19, 2020, Plaintiff filed her first formal grievance against
Fainuleilei, 	expressing 	dissatisfaction 	with 	how 	Fainuleilei 	selectively
applied the chair policy. Plaintiff reiterated her belief, previously expressed
in her prior RFIs, that Fainuleilei had a vendetta against Plaintiff, and that
that animosity motivated Fainuleilei’s actions regarding the chair policy.36
Hiland has a procedure for grievances guaranteed by 22 AAC 05.155 and
Index # 808.03 of the State of Alaska DOC Policies and Procedures where an
inmate can file a grievance to raise concerns over any matter within the
32 Dkt. 42-4 at ¶ 15.
33 Id.
34 Dkt. 42-4 at ¶ 16.
35 Id.; Dkt. 42-12 at 1.
36 Dkt. 42-12 at 2, Dkt. 42-13 at 1-2, and Dkt. 42-14 at 1-2.
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DOC's control. For grievances related to staff misconduct, a prisoner must
fully 	complete 	page 	one 	of 	the 	Prisoner 	Grievance 	Form 	808.03C; 	the
prisoner may attach up to two additional pages of narrative. The prisoner
must place the grievance packet in the appropriate locked box within 30
calendar days from the date the incident occurred or from when the prisoner
has knowledge of the incident.37
If a grievance alleges staff violations of the ethical code or standards of
conduct as defined by Policy 202.01, the Facility Standards Officer shall
record and forward the grievance directly to the Facility Manager.38 	After
receiving the grievance, the Facility Manager shall either: (a) Within 15
working days investigate the grievance and provide a written decision to the
prisoner through the Facility Standards Officer; or (b) Promptly return the
grievance 	to 	the 	Facility 	Standards 	Officer 	for 	informal 	resolution 	or
assignment to an investigator according to VII.A.2.f-g.39
In 	late 	August 	or 	early 	September 	2020, 	Johnston, 	a 	supervising
sergeant at Hiland, interviewed Plaintiff in response to her July grievance.40
Plaintiff told Johnston that she wanted Fainuleilei removed from her housing
37 State of Alaska Department of Corrections Policies and Procedures, Prisoner
Rights, Prisoner Grievances, Index 808.03, pp. 4-5, October 13, 2006.
38 Id. at 10.
39 Id.
40 Dkt. 42-5 at ¶ 21.
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unit and for Fainuleilei to be instructed to leave Plaintiff alone.41 On October
2, 2020, Plaintiff sent Johnston a RFI about her grievance.42 On October 19,
2020, Plaintiff wrote a letter reiterating her complaints to superintendent
Johnson, and gave it to an officer to put in the superintendent’s box.43
iv. 	Plaintiff Files a Second Grievance and Appeal.
Plaintiff filed a second grievance on October 20, 2020, this time against
Johnston for his “misconduct” in not addressing Plaintiff’s July grievance with
her.44 Superintendent Johnson then called Plaintiff on October 21, 2020, to
set up a meeting with her the next day to discuss her grievances, both the
grievance originally filed in July over the chair policy, as well as her grievance
against Johnston.45 They met to discuss, but the matters were not resolved to
Plaintiff’s satisfaction. Johnson advised Plaintiff that she would have Booher
address the issue and that Johnson would follow up with her. 	No follow up
occurred.46 	On November 11, 2020, Plaintiff submitted an appeal for her
October 20, 2020, grievance, to which she had not yet received as response.47
//
41 Dkt. 42-15 at 1.
42 Dkt. 42-5 at ¶ 22.
43 Dkt. 42-7 at ¶ 28.
44 Dkt. 42-7 at ¶ 29; Dkt. 42-15 at 1.
45 Dkt. 42-7 at ¶ 30.
46 Dkt. 42-9 at¶ 37.
47 Dkt. 42-10 at ¶ 46; Dkt. 42-22.
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v. 	Plaintiff Files an RFI Seeking Information about the Door
Policy at Hiland.
On an unknown date, during a routine check, Fainuleilei told Plaintiff
she was required to keep her door unlocked while she was in her room.48 On
November 2, 2020, Plaintiff sent a RFI to the housing sergeant to ask if DOC
had policies and procedures about whether prisoners are allowed to lock their
doors while inside their rooms.49 On November 3, 2020, Plaintiff asked the
housing sergeant about her RFI. 	The housing sergeant said she would speak
to Plaintiff on Thursday, two days later, about her RFI.50
On November 5, 2020, when Fainuleilei was on-shift, Plaintiff was
again told to keep her door unlocked.51 During her next shift, four days later,
Fainuleilei did not tell Plaintiff she had to keep her door unlocked.52
IV. 	LEGAL STANDARD
The Civil Rights Act of 1871, 42 U.S.C. § 1983, is a federal statute that
“is not itself a source of substantive rights,” but provides “a method for
vindicating rights [found] elsewhere.”53 	For relief under Section 1983, a
48 Dkt 42-9 at ¶ 39.
49 Dkt 42-9 at ¶ 41.
50 Dkt 42-9 at ¶ 42 (continuing to 42-10).
51 Dkt 42-10 at ¶ 44.
52 Dkt 42-10 at ¶ 45.
53 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443
U.S. 137, 144 n.3 (1979)).
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plaintiff must “plead that (1) the defendants acting under color of state law
(2) 	deprived 	plaintiffs 	of 	rights 	secured 	by 	the 	Constitution 	or 	federal
statutes.”54 To act under the color of state law, a complaint must allege that
the defendants acted with state authority as state actors.55
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests
the legal sufficiency of the pleadings.56 	Dismissal is appropriate under Rule
12(b)(6) when a plaintiff's allegations fail “to state a claim upon which relief
can be granted.” This failure may be based on the absence of a cognizable
legal theory, or on the absence of sufficient facts alleged under a cognizable
legal theory.57 	In ruling on a motion to dismiss, courts may generally
consider only “the complaint, materials incorporated into the complaint by
reference, and matters of which the court may take judicial notice.”58
As mentioned above, in the interest of justice, this Court considers the
facts presented in Plaintiff’s Third Amended Complaint and Notice of Errata
and 	attached 	exhibits, 	pursuant 	to 	District 	of 	Alaska 	Local 	Civil 	Rule
54 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
55 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S.
299, 326 (1941)).
56 De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978).
57 Johnson v. Riverside Healthcare System, 534 F.3d 1116, 1121 (9th Cir. 2008).
58 Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir.
2008).
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1.1(a)(4).59 	Defendants have acknowledged the same understanding and
considered each of those documents in their filed response.60
Generally, Courts must “accept all material allegations of fact as true,
construe the complaint in a light most favorable to the non-moving party,”61
and accept as true all reasonable inferences which can be drawn from the
facts alleged.62 	However, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”63 	Furthermore, to survive a
motion to dismiss, a plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.”64 	This “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.”65
59 Chudacoff, 649 F.3d 1152 (2011).
60 Dkt. 45 at 5. “Defendants construe this Court’s lack of response to Joseph’s
Notice of Errata at Dkt. 42, which incorporates 41 pages of documents into
Joseph’s Third Amended Complaint, as acceptance. As such, defendants presume
this court will consider Dkts. 42-1 through 42-32 as incorporated into Joseph’s
Third Amended Complaint at Dkt. 32; defendants rely on the aforementioned
herein.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Fed.
R. Civ. P. 10(c).
61 Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007).
62 Broam, 320 F.3d at 1028.
63 Ashcroft v. Iqbal, 556 U.S. 662, (2009) (citation omitted).
64 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
65 Id. at 550.
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Plausibility does not equate to probability, but it requires “more than a
sheer possibility that a defendant has acted unlawfully.”66 “A claim has 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
alleged.”67 	Determining whether a complaint states a plausible claim for
relief, is a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.68 	Dismissal of claims that fail to
meet this standard should be with leave to amend unless it is clear that
amendment could not possibly cure the complaint's deficiencies.69
V. 	DISCUSSION
a. CLAIMS WARRANTING DISMISSMAL
i. 	All Claims against Defendants in their Official Capacity
Plaintiff sues Defendants in both their individual and official capacities.
As it relates to the claims made against Defendants in their official capacity,
the Court recommends dismissal without prejudice. In a Section 1983 action,
a plaintiff may sue a defendant in an official capacity as an alternate way of
pleading a claim against the governmental entity for which that individual is
66 Iqbal, 556 U.S. at 678.
67 Id.
68 Id. at 1950.
69 Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir.1998).
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an officer or employee.70 A plaintiff suing a defendant in her official capacity
is not required to allege the “named official's personal involvement in the
acts or omissions constituting the alleged constitutional violation.”71 Instead,
a plaintiff must only (1) “identify the law or policy challenged” and (2) “name
the official within the entity who can appropriately respond to injunctive
relief.”72 	A defendant sued in her official capacity may not be sued for
damages, only for injunctive relief.73
Plaintiff’s Third Amended Complaint fails to articulate any law or policy
that she seeks to change. 	While Plaintiff does describe two policies in place
within DOC for addressing inmate grievance, she makes no claim that those
policies are unconstitutional or need redress. 	Rather, the injunctive relief
requested by Plaintiff – the only relief available from a defendant sued in
their official capacity – is not any change to the DOC policies described in her
complaint, but rather, for each of “the individually named prison officials to
be fired from his or her position with [DOC].” 	Despite Plaintiff’s argument
70 Kentucky v. Graham, 473 U.S. 159, 165 (1985); Hafer v. Melo, 502 U.S. 21, 27
(1991).
71 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013).
72 Id.
73 See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n.10. (1989).
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to the contrary,74 the Court cannot equate a factual summary of DOC’s policies
provided by Plaintiff with a claim for relief.
Moreover, it is not apparent that the injunctive relief sought – the firing
of Defendants from their positions within DOC – is an available remedy.
Courts 	ordinarily 	accord 	great 	deference 	to 	the 	internal 	administrative
decisions of prison officials.75 	And the Supreme Court has continuously
cautioned federal courts from assuming “a greater role in decisions affecting
prison administration.”76
Nonetheless, since amendment could cure the deficiency, the Court
recommends DISMISSAL WITHOUT PREJUDICE of all claims made against
Defendants in their official capacity.
ii. 	Count Two - Fourteenth Amendment Claims
The Equal Protection Clause of the Fourteenth Amendment requires
that similarly situated persons be treated alike.77 “Prisoners are protected
under 	the 	Equal 	Protection 	Clause 	of 	the 	Fourteenth 	Amendment 	from
74 Dkt. 41 at 11-12.
75 See Harrington v. Scribner, 785 F.3d 1299, 1305 (9th Cir. 2015).
76 Shaw v. Murphy, 532 U.S. 223, 230 (2001); Turner v. Safley, 482 U.S. 78, 84–85
(1987).
77 See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Plyler v.
Doe, 457 U.S. 202, 216 (1982).
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invidious discrimination based on race.”78 Plaintiff's Claim Two, a Section
1983 conspiracy claim based on the Equal Protection Clause of the Fourteenth
Amendment, requires allegations of discriminatory intent or purpose based
on race or religion, or allegations from which the court can reasonably infer
a discriminatory intent or purpose based on race or religion.79 	The Court
finds Plaintiff has failed to meet this standard and recommends dismissal of
this claim without prejudice.
Plaintiff claims that West, Booher, Johnston, Johnson, and Fainuleilei
acted outside the scope of their employment by conspiring to deny her of
equal protection of the laws. 	Specifically, Plaintiff claims that Defendants
treated her differently because she is black, and they conspired to ignore her
grievance about what she perceived as a racist remark.80 	Defendants assert
that Plaintiff’s entire Equal Protection claim rests on the possibility that one
comment made by Fainuleilei may have had a racist connotation.81
As detailed below, this Court finds that Plaintiff’s complaint is sufficient
as it relates to her First Amendment retaliation claim. 	However, it is
78 Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citing Lee v. Washington, 390 U.S.
333 (1968) (per curiam)).
79 See Washington v. Davis, 426 U.S. 229, 242 (1976); Village of Arlington Heights
v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
80 Dkt. 32 at 7.
81 Dkt. 45 at 18.
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insufficient when it comes to her claim that Defendants conspired to violate
her rights under the Fourteenth Amendment. 	Plaintiff does allege that
Defendant Fainuleilei made a statement to her that was race-based, and acted
in a way that demonstrated a racist intent. 	However, Plaintiff’s Third
Amended Complaint on this issue as it relates to the other Defendants is
deficient with regards to any facts detailing actions taken by those individuals
on 	account 	of 	Plaintiff’s 	race.82 	Rather, 	the 	factual 	allegations 	in 	the
complaint 	allege 	inaction 	and 	retaliation 	based 	upon 	Plaintiff’s 	initial
complaint, not as the result of any racial animus. 	In addition, the complaint
fails to identify any agreement between or actions by Defendants on account
of Plaintiff’s race that are sufficient to constitute a conspiracy to deny
Plaintiff equal protection. 	As a result, this Court recommends DISMISSAL
WITHOUT PREJUDICE of Count Two, Plaintiff’s Fourteenth Amendment
claim.
//
//
//
82 See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988)
(“A mere allegation of conspiracy without factual specificity is insufficient.”); see
also Johnson v. State of Cal., 207 F.3d 650, 656 (9th Cir. 2000).
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iii. 	Count Three - Failure to Protect
Plaintiff alleges in Count Three of her complaint that West, Booher, and
Johnston failed to intervene or correct the retaliatory and discriminatory acts
of Fainuleilei.83 Plaintiff claims that these Defendants had a duty to intervene
given their employment status and supervisory roles and that they failed to
use their authority to correct Fainuleilei’s actions.84 Despite her attempts to
characterize it otherwise,85 the Court finds that this allegation falls under the
legal doctrine of respondeat superior, the legal principle that holds “an
employer or principle liable for [an] employee’s or agent’s wrongful acts
committed within the scope of the employment or agency.”86 As such, it must
be dismissed.
Government officials may not be held liable under Section 1983 for
unconstitutional conduct of their subordinates under the theory of respondeat
superior.87 	Government officials, their titles not notwithstanding, are only
liable for their own misconduct absent vicarious liability.88 	A plaintiff must
plead that each government official, through their own actions, violated the
83 Dkts. 32 and 41.
84 Dkt. 32 at 7.
85 Dkt. 41 at 13.
86 Respondeat Superior, Black’s Law Dictionary (3rd Pocket Ed. 1996).
87 Iqbal, 556 U.S. at 676.
88 Id.
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Constitution.89 	As it relates to Count Three, Plaintiff fails to meet this
standard.
Plaintiff asserts that her claims in Count Three against West, Booher,
and Johnston are not based on any supervisory authority they may have had
within Hiland, but rather, on their failure to intervene in the constitutional
violations committed against Plaintiff.90 	This attempt to remove West,
Booher, and Johnston from the application of the doctrine of respondeat
superior 	is unavailing. Knowledge among supervisors of wrongdoing by
subordinates, and acquiescence to that conduct, is insufficient for liability
under Section 1983.91
Plaintiff concedes that such liability has, in prior Section 1983 cases,
generally been limited to the excessive force context. 92 	Such cases are
inapplicable here. 	This Court will not stretch the current alleged facts to fit
the out-of-district cases cited by Plaintiff, which involved non-excessive force
Constitutional 	violations 	committed 	“in[the] 	presence” 	of 	other 	non-
supervisory state actors.93
89 Id.
90 Dkt. 41 at 6.
91 See Iqbal, 556 U.S. at 677.
92 Dkt. 41 at 6, citing Rubalcava v. City of San Jose, (N.D. Cal. Jul. 15, 2021).
93 Id. Citing see, e.g., Lu Huang v. Cty. of Alameda, No. C11-01984 THE, 2011 WL
5024641, at * 3 (N.D. Cal. Oct. 20, 2011).
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Furthermore, Plaintiff has alleged in Count Three nothing more than
West, Booher, and Johnston had knowledge of Fainuleilei’s actions and failed
to intervene.94
This 	Court 	concludes 	that 	Plaintiff’s 	Count 	Three, 	the 	claim 	that
Defendant West, Booher and Johnston failed to intervene or correct the
retaliatory and discriminatory acts of another falls neatly within the doctrine
of respondeat superior. 	Accordingly, the Court recommends DISMISSAL
WITH PREJUDICE of Count Three since amendment could not cure the
deficiencies.
b. CLAIM NOT WARRANTING DISMISSAL
i. 	First Amendment Retaliation Claim
This Court recommends denying Defendant’s Motion to Dismiss Count
One, Plaintiff’s First Amendment retaliation claim. 	The Court finds that the
allegations in the Third Amended Complaint, when taken in the light most
favorable to the non-moving party, present sufficient facts to state a claim
for relief.
“Prisoners have a First Amendment right to file grievances against
prison officials and to be free from retaliation for doing so.”95 To prevail on
94 Dkt. 32 at 7.
95 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).
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a First Amendment retaliation claim, five elements must be met.96 	Those
elements 	include 	1) 	an 	allegation 	that 	the 	retaliated-against 	conduct 	is
protected, 2) adverse action against the plaintiff, 3) a causal connection
between the adverse action and the retaliation, 4) an allegation that the
“official’s acts would chill or silence a person of ordinary firmness from
future First Amendment activities,” and 5) that the official’s acts did not
advance a legitimate penological goal.97
Plaintiff claims that West, Booher, Johnston, Johnson, and Fainuleilei
conspired to retaliate against Plaintiff after she exercised her right to free
speech by filing a grievance. Plaintiff also alleges that Defendants conspired
to chill her right to free speech by interfering with her filing a grievance.98
At all times, Plaintiff alleges that Defendant were acting outside the scope of
their employment.
Defendants disagree. 	In the Defendants’ view, no adverse action was
taken against Plaintiff that prevented her from filing her grievances. Rather,
Defendants contend that Plaintiff deliberately circumvented the grievance
filing process and then subsequently formed incorrect assumptions about the
96 Id.
97 Id.
98 Dkt. 32 at 6-7.
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consequences of failing to abide by that process. Fainuleilei also argues that
there is no evidence of any adverse action taken by her against Plaintiff.
The Court finds that sufficient allegations have been made to support
Plaintiff’s claim of a conspiracy by Defendants in their individual capacity to
violate her First Amendment rights. 	“To establish a conspiracy, a plaintiff
must demonstrate the existence of an agreement or ‘meeting of the minds' to
violate 	constitutional 	rights.”99 	“The 	defendants 	must 	have, 	by 	some
concerted action, intended to accomplish some unlawful objective for the
purpose of harming another which results in damage.”100 This agreement or
meeting of the minds may be inferred on the basis of circumstantial evidence,
such 	as 	the 	actions 	of 	the 	defendants.101 	“A 	showing 	that 	defendants
committed 	acts 	that 	‘are 	unlikely 	to 	have 	been 	undertaken 	without 	an
agreement’ may support the inference of a conspiracy.”102
As 	described 	above, 	conclusory 	allegations 	of conspiracy 	are 	not
enough to support a Section 1983 conspiracy claim. 	A plaintiff must allege
specific 	facts 	to 	support 	the 	existence 	of 	the 	claimed conspiracy.103
99 Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir.1999)
(quoting Kunik v. Racine County, 946 F.2d 1574, 1580 (7th Cir. 1991)).
100 Id.
101 Id.
102 Id.
103 See Olsen v. Idaho Bd. of Medicine, 363 F.3d 916, 929 (9th Cir.2004).
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Allegations 	that 	identify 	“the 	period 	of 	the conspiracy, 	the 	object 	of
the conspiracy, and certain other actions of the alleged conspirators taken to
achieve that purpose,”104 and allegations that identify “which defendants
conspired, how they conspired and how the conspiracy led to a deprivation of
[] constitutional rights,” have been held to be sufficiently particular to
properly allege a conspiracy.105
The 	facts 	presented 	by 	Plaintiff 	are 	assumed 	true. 	With 	that
assumption, they have enough specificity to them to push them beyond the
“naked assertion” threshold and meet the elements of a retaliation claim.
Plaintiff alleged the period of the conspiracy and those who participated, as
well as the object of the conspiracy, specifically, to retaliate against her for
exercising her right to free speech. 	Plaintiff also alleged the manner and
means of the conspiracy, which included allegedly prohibiting Plaintiff from
filing a grievance, not acting on RFIs and grievances filed, and moving her or
treating her differently from other inmates in response to complaints.106
Plaintiff raised an allegation of retaliation based upon her having filed
a complaint and pled that an adverse event occurred as a result. 	While her
104 Marchese v. Umstead, 110 F.Supp.2d 361, 371 (E.D.Pa.2000).
105 Harris v. Roderick, 126 F.2d 1189, 1196 (9th Cir.1997).
106 Dkt. 32.
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complaint does not describe an express agreement among Defendants, the
timing of actions against Plaintiff permit an inference at this time of a causal
connection 	between 	her 	complaints 	and 	the 	alleged 	adverse 	actions.107
Finally, the alleged harms of being moved or singled-out are “more than
minimal” and could therefore chill a person from exercising their rights,108
and alleged false statements and the purported failure to follow procedure
serve no penological purpose.
For this reason, the Court recommends DENIAL of Defendant’s Motion
to Dismiss Count One, Plaintiff’s First Amendment retaliation claim.
//
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107 See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir.1995) (holding that “timing can
properly be considered as circumstantial evidence of retaliatory intent.”)
108 Rhodes v. Robinson, 408 F.3d 559, 568 n. 11 (9th Cir.2005).
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VI. 	CONCLUSION
For the reasons stated above, this Court recommends GRANTING IN
PART Defendant’s Motion to Dismiss and DENYING IT IN PART. Specifically,
Plaintiff’s allegations against all Defendants in their Official Capacity, as well
as 	Plaintiff’s 	Count 	Two, 	her 	Fourteenth 	Amendment 	claim, 	should 	be
DISMISSED WITHOUT PREJUDICE. 	Plaintiff’s Count Three, her failure to
supervise and intervene claim, should be DISMISSED WITH PREJUDICE.
This Court recommends that Defendant’s motion to dismiss Count One,
Plaintiff’s First Amendment retaliation claim, be DENIED.
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate
judge 	to 	hear 	and 	determine 	matters 	pending 	before 	the 	Court. 	For
dispositive matters, a magistrate judge reports findings of fact and provides
recommendations to the presiding district court judge.109 	A district court
judge may accept, reject, or modify, in whole or in part, the magistrate judge’s
order.110
109 28 U.S.C. § 636(b)(1)(B).
110 28 U.S.C. § 636(b)(1)(C).
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A party may file written objections to the magistrate judge’s order
within 14 fourteen days.111 	Objections and responses are limited to five (5)
pages 	in 	length 	and 	should 	not 	merely 	reargue 	positions 	previously
presented. 	Rather, objections and responses should specifically identify the
findings or recommendations objected to, the basis of the objection, and any
legal authority in support. Reports and recommendations are not appealable
orders. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be
filed until entry of the district court’s judgment.112
DATED this 9th day of August, 2022 at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
111 Id.
112 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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