Vail v. Elmore et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RORY EVAN VAIL,
Plaintiff,
v.
SERGEANT ELMORE, SERGEANT
STRAUTHER, and
SUPERINTENDENT THOMAS,
Defendants.
Case No. 3:23-cv-00254-SLG
SCREENING ORDER
On November 2, 2023, self-represented prisoner Rory Evan Vail (“Plaintiff”)
filed a complaint under the Civil Rights Act (“Complaint”).1 On November 11, 2023,
the Court notified Plaintiff his filing was deficient and accorded him 30 days to file
a civil cover sheet and either pay the filing fee of file a completed application to
waive prepayment of the filing fee.2 On November 27, 2023, Plaintiff filed a
completed civil cover sheet and an application to waive prepayment of the filing
fee.3
1 Dockets 1–2.
2 Docket 2.
3 Dockets 3–4.
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Plaintiff is a convicted prisoner at Anchorage Correctional Complex East
under the control of the Alaska Department of Corrections (“DOC”).4 Plaintiff
claims three correctional officers employed by DOC violated his due process
rights. Specifically, in Claim 1, Plaintiff alleges that Defendant Sergeant Elmore
violated his due process rights on or about September 29, 2023, when Defendant
Elmore terminated Plaintiff’s phone call with Leslie Vail. Plaintiff claims he called
Ms. Vail to confirm he had enough money in his account to cover the monthly
payments for a college course he enrolled in.5 He claims his phone call was
terminated, but he was able to call back and speak to Ms. Vail for another few
minutes about unrelated topics before that call was terminated. Plaintiff claims
when he “tried to call again, the phone number belonging to Leslie Vail was
restricted.”6 Plaintiff then submitted a Request for Information (“RFI”) and was
informed by Defendant Elmore that Plaintiff was restricted from calling Leslie Vail’s
number “indefinitely” for discussing “movement of monies without superintendent
approval” in violation of a DOC policy. Plaintiff claims the college course had been
4 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial notice of the
docket records of the Alaska Trial Courts and the Alaska Appellate Courts, which may be
accessed online at https://courts.alaska.gov/main/search-cases.htm. Judicial notice is the
“court’s acceptance, for purposes of convenience and without requiring a party’s proof, of a well-
known and indisputable fact; the court’s power to accept such a fact.” BLACK’S LAW
DICTIONARY (11th ed. 2019). See also Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047,
1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in another tribunal are appropriate for
judicial notice.”) (internal quotation marks and citation omitted).
5 Docket 1 at 3.
6 Docket 1 at 3.
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approved, and he was not accorded a hearing to disprove the allegation resulting
in the restriction. He then filed a grievance.7
In Claim 2, Plaintiff alleges on or about October 16, 2023, Defendant
Sergeant Strauther, DOC’s Facility Standards Officer, screened Plaintiff’s
grievance regarding the telephone restriction and found it “factually inaccurate and
clearly devoid of merit.”8 Plaintiff alleges Defendant Strauther violated his due
process rights by denying his grievance. Plaintiff then filed an appeal. In Claim 3,
Plaintiff alleges Defendant Superintendent Thomas violated his due process rights
on or about October 19, 2023, by denying his appeal and preventing him from
appealing to the Director of DOC.9 Plaintiff believes he should have been afforded
a disciplinary hearing before his telephone privileges were restricted or given an
opportunity to further appeal the restrictions to a “higher authority.”10 For relief,
Plaintiff seeks an order requiring Defendants to remove the restriction preventing
him from calling the restricted phone number and a declaration that all restrictions
on phone use will be afforded due process and be of limited duration.11
The Court now screens the Complaint in accordance with 28 U.S.C. §§
1915(e) and 1915A. Although the scope of review generally is limited to the
7 Docket 1 at 3.
8 Docket 1 at 4.
9 Docket 1 at 5.
10 Docket 1 at 4–5.
11 Docket 1 at 8.
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contents of the complaint, a federal court may also consider documents attached
to the complaint, documents incorporated by reference in the complaint, or matters
of judicial notice.12 Plaintiff has not included copies of the RFI, grievances, or
appeals he filed or the responses from DOC as attachments to his complaint.
Plaintiff also has not indicated which policies DOC claims he violated or included
copies of those policies, but the Court takes judicial notice of DOC’s publicly
available policies and procedures (P&Ps), including P&P 810.01, which discusses
telephone restrictions.13 For the reasons discussed below, the Complaint is
dismissed for failure to state a claim upon which relief could be granted. However,
the Court grants Plaintiff leave to file an amended complaint in accordance with
the guidance in this order. With any amended complaint, Plaintiff should include
as attachments any available copies of his correspondence with DOC (RFI,
grievances, DOC responses, etc.) regarding the alleged events.
SCREENING STANDARD
Under the Prison Litigation Reform Act, a federal district court is required to
screen complaints brought by prisoners seeking relief against a governmental
entity or officer or employee of a governmental entity.14 In this screening, a court
shall dismiss the case at any time if the court determines that the action:
12 United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
13 The current DOC policies and procedures are available on DOC’s website at
https://doc.alaska.gov/commissioner/policies-procedures.
14 28 U.S.C. §§ 1915, 1915A.
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(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.15
To determine whether a complaint states a valid claim for relief, courts
consider whether the complaint contains sufficient factual matter that, if accepted
as true, “state[s] a claim to relief that is plausible on its face.”16 Before a court may
dismiss any portion of a complaint, a court must provide a plaintiff with a statement
of the deficiencies in the complaint and an opportunity to amend or otherwise
address the problems, unless to do so would be futile.17 Futility exists when “the
allegation of other facts consistent with the challenged pleading could not possibly
cure the deficiency.”18
DISCUSSION
I. Civil Rights Claims under 42 U.S.C. § 1983
To state a claim for relief under 42 U.S.C. § 1983 (“Section 1983”), a plaintiff
must allege plausible facts that, if proven, would establish (1) the defendant acting
under color of state law (2) deprived the plaintiff of rights secured by the federal
15 28 U.S.C. § 1915(e)(2)(B).
16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
17 See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citing Albrecht v. Lund,
845 F.2d 193, 195 (9th Cir. 1988)).
18 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.
1986).
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Constitution or federal statutes.19 Section 1983 does not confer federal
constitutional or federal statutory rights. Instead, it provides a mechanism for
remedying violations of pre-existing federal rights.20 Section 1983 does not
provide a mechanism for remedying alleged violations of state law21 or prison
policies.22 A state correctional officer acting within the scope of his employment is
a state actor. However, as pleaded, Plaintiff has not stated a plausible claim for a
violation of his rights under the U.S. Constitution or federal law. Therefore, the
Court must dismiss the Complaint. However, the Court grants Plaintiff leave to file
an amended complaint in accordance with the guidance provided in this order.
A. Due Process Claims under the Fourteenth Amendment
The Fourteenth Amendment provides that the State shall not “deprive any
person of life, liberty or property, without due process of the law.”23 The due
process clause protects two distinct but related rights: procedural due process and
substantive due process.24 A threshold requirement to both substantive and
19 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
20 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
21 Galen v. Cty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).
22 Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting Gardner v. Howard, 109
F.3d 427, 430 (8th Cir. 1997)).
23 U.S. Const. amend. XIV, § 1.
24 Albright v. Oliver, 510 U.S. 266, 272 (1994).
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procedural due process claims is a showing of a protected liberty or property
interest.25
1. Protected Liberty Interests
“A liberty interest may arise from the Constitution itself, by reason of
guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or
interest created by state laws or policies.26 For a person in state custody, state
created liberty interests will “be generally limited to freedom from restraint which
... imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”27 A federal court must look to the nature of the
deprivation to determine if the state has created some “underlying substantive
interest” that rises to the level of a legitimate claim of entitlement.28 There is no
single standard for determining whether a prison hardship is atypical and
significant, and the “condition or combination of conditions or factors ... requires
case by case, fact by fact consideration.”29 However, recognizing a liberty interest
for any change in an inmate’s prison conditions “would subject to judicial review a
wide spectrum of discretionary actions that traditionally have been the business of
25 Stiesberg v. State of Cal., 80 F.3d 353, 356 (9th Cir. 1996) (quoting Wedges/Ledges of
California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994)).
26 Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (internal citations omitted).
27 Sandin, at 484.
28 Johnson v. Ryan, 55 F.4th 1167, 1193 (9th Cir. 2022) (citing Town of Castle Rock, 545 U.S.
at 757)
29 Keenan, 83 F.3d at 1089.
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prison administrators rather than of the federal courts.”30 While many restrictions
“may not feel trivial to an inmate who has been isolated and experienced only
limited social contact[;] they do not represent a beyond-standard deviation from
the ordinary circumstances of prison life” sufficient to implicate a liberty interest
under the due process clause.31 In sum, the Complaint does not plausibly allege
that the phone restriction violates a protected liberty interest under the due process
clause.
2. Procedural Protections
Only if a protected liberty interest is implicated will a federal court consider
whether the alleged deprivation was accompanied by sufficient procedural
protections.32 Plaintiff claims he should have had a disciplinary hearing before his
telephone privileges were restricted.33 Plaintiff argues his claims are supported by
“Alaska Statutes, the Alaska Constitution, and case law.”34 However, as explained
above, Plaintiff has not plausibly alleged a state-created liberty interest to bring a
federal constitutional claim under the due process clause. And contrary to
Plaintiff’s assertion, Defendants do not appear to have violated state law or DOC’s
30 Wilkinson, at 225
31 Cf. Johnson, at 1196.
32 Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (a court “need reach the question of what process
is due only if the inmates establish a constitutionally protected liberty interest.”).
33 Docket 1 at 4–5.
34 Docket 1 at 5.
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P&Ps. Plaintiff’s telephone restriction is allegedly based on an individualized
determination and not “in connection with placement in administrative segregation
or by disciplinary action.”35 Therefore, pursuant to DOC policy, Plaintiff “may only
challenge those restrictions by filing a grievance pursuant to [Alaska] DOC P&P
808.03 (Prisoner Grievances).”36 Plaintiff is not entitled to a disciplinary hearing or
any specific procedural protections, and inmates lack a separate constitutional
entitlement to a specific prison grievance procedure.37
B. Challenging a Prison Policy
The Ninth Circuit has “stated in dicta that ‘prisoners have a First Amendment
right to telephone access, subject to reasonable security limitations.’ ”38 Liberally
construed, the restriction on Plaintiff’s telephone usage could implicate a prisoner’s
rights under the First Amendment. But to the extent Plaintiff seeks to challenge the
policy regarding telephone restrictions, he has failed to provide sufficient facts to
state a claim upon which relief could be granted.
35 DOC P&P 810.01(I)(4), https://doc.alaska.gov/pnp/pdf/810.01.pdf at page 2.
36 DOC P&P 810.01(I)(5), https://doc.alaska.gov/pnp/pdf/810.01.pdf at page 2.
37 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639,
640 (9th Cir.1988)).
38 Valdez, at 1048 (quoting Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.1996). But see Overton
v. Bazzetta, 539 U.S. 126, 131 (2003) (freedom of association is among the rights least
compatible with incarceration).
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A prison regulation that impinges on an inmate's constitutional right “is valid
if it is reasonably related to legitimate penological interests.”39 A federal court must
consider four factors in determining whether a prison policy is reasonably related
to legitimate penological interests: (1) whether there is a “valid, rational connection”
between the regulation and a legitimate governmental interest put forward to justify
it; (2) whether there are alternative means of exercising the asserted constitutional
right that remain open to the inmates; (3) whether and the extent to which
accommodation of the asserted right will have an impact on prison staff, inmates,
and the allocation of prison resources generally; and (4) whether the regulation
represents an “exaggerated response” to prison concerns.40
When considering the reasonableness of a prison regulation, “it [is]
important to inquire whether prison regulations restricting inmates' First
Amendment rights operated in a neutral fashion.”41 Variations in the enforcement
of an otherwise legitimate policy will not always rise to the level of inconsistent
application; however, evidence of inconsistent application may be proof that the
policy is not neutral.42 A federal court must then consider whether the unequal
39 Turner v. Safley, 482 U.S. 78, 89 (1987).
40 Id. at 89-91.
41 Jones v. Slade, 23 F.4th 1124, 1137 (9th Cir. 2022).
42 Id. at 1138.
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application of the policy defeats the rational relationship between the policy and
the government's asserted justification.
CONCLUSION
For the reasons above, the Complaint is dismissed for failure to state a
claim. However, Plaintiff is accorded 60 days from the date of this order to file an
amended complaint. An amended complaint replaces the prior complaint in its
entirety.43 Any claim not included in the amended complaint will be considered
waived. However, an amended complaint need only contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.”44 An amended
complaint need not contain legal research or analysis, but each claim must contain
sufficient facts that state a plausible claim for relief. A claim is “plausible” when the
facts alleged support a reasonable inference that the plaintiff is entitled to relief
from a specific defendant for specific misconduct. An amended complaint should
not contain a narrative. Although Plaintiff has been given the opportunity to file an
amended complaint, he shall not unjustifiably expand the scope of the case by
alleging new unrelated claims. An amended complaint may not include any claims
or defendants for which Plaintiff lacks a sufficient legal or factual basis. An
amended complaint must set out each claim for relief separately. Each claim
should identify (1) the specific injury that the plaintiff is alleging has occurred, (2)
43 See Fed. R. Civ. P. 15; Local Civil Rule 15.1.
44 Fed. R. Civ. P. 8(a)(2).
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when that injury occurred, (3) where that injury was caused, and (4) who the
plaintiff is alleging caused that specific injury. Plaintiff should attach to the
amended complaint the grievance(s) he submitted to the institution that challenged
the phone restriction and the institution’s response(s) to that challenge.
IT IS THEREFORE ORDERED:
1. The Complaint at Docket 1 is DISMISSED for failure to state a claim upon
which relief can be granted. However, the Court grants Plaintiff leave to file an
amended complaint.
2. Plaintiff is accorded 60 days from the date of this order to file either:
a. First Amended Complaint, in which Plaintiff restates his claims for
damages to address the deficiencies identified in this order. An
amended complaint should be on the Court’s form, which is being
provided to Plaintiff with this order; OR
b. Notice of Voluntary Dismissal, in which Plaintiff elects to close and
end this case.
3. If Plaintiff does not file either an Amended Complaint or Notice of
Voluntary Dismissal on the Court form within 60 days from the date of this order,
this case may be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B) without
further notice to Plaintiff. This dismissal would count as a “strike” against Plaintiff
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under § 1915(g).45 A voluntary dismissal does not count as a “strike” under 28
U.S.C. § 1915(g).
4. Plaintiff’s application to waive prepayment of the filing fee at Docket 4 is
GRANTED.
5. The Court cautions that prisoners may only waive prepayment of the filing
fee. Should Plaintiff's claims pass through the required statutory screening the
Court shall issue a separate fee order that shall collect the entire filing fee
incrementally from Plaintiff's prisoner trust account.46
6. Self-represented litigants are expected to review and comply with the
Federal Rules of Civil Procedure, the Local Civil Rules, and all Court orders.47
Failure to do so may result in the imposition of sanctions authorized by law,
including dismissal of this action.
7. At all times, all parties shall keep the Court informed of any change of
address or phone number. Such notice shall be titled “Notice of Change of
Address.” The Notice shall contain only information about the change of address,
45 28 U.S.C. § 1915(g) prohibits a prisoner who files more than three actions or appeals in any
federal court in the United States which are dismissed as frivolous or malicious or for failure to
state a claim upon which relief may be granted, from bringing any other actions without
prepayment of fees unless the prisoner can demonstrate that he or she is in “imminent danger
of serious physical injury.”
46 28 U.S.C. § 1915(b) (“if a prisoner brings a civil action or files an appeal in forma pauperis,
the prisoner shall be required to pay the full amount of a filing fee.”).
47 Federal Rules of Civil Procedure: https://www.uscourts.gov/rules-policies/current-rules-
practice-procedure/federal-rules-civil-procedure; Alaska District Court’s Local Rules:
https://www.akd.uscourts.gov/court-info/local-rules-and-orders/local-rules.
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and its effective date.48 The Notice shall not include requests for any other relief.
If a plaintiff fails to keep a current address on file with the Court, that may result in
a dismissal of the case without further notice.
8. With this order, the Clerk is directed to send: (1) form PS01, with “FIRST
AMENDED” written above the title “Prisoner’s Complaint Under the Civil Rights Act
42 U.S.C. § 1983”; (2) form PS09, Notice of Voluntary Dismissal; and (3) form
PS23, Notice of Change of Address.
DATED this 19th day of April 2024, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
48 See Local Civil Rule 11.1(b) (requiring a notice of change of address to be filed, as “[s]elf-
represented parties must keep the court and other parties advised of the party’s current address
and telephone number”).
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