Myers v. Bacon

• Decision Date: 24 September 2019
• Docket Number: CASE NO. C19-1169-RSM-BAT
• Parties: ANTHONY ALLEN MYERS, Plaintiff, v. TROY BACON, et al., Defendant.
• Court: U.S. District Court — Western District of Washington

ANTHONY ALLEN MYERS, Plaintiff, v. TROY BACON, et al., Defendant.

CASE NO. C19-1169-RSM-BAT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

September 24, 2019

REPORT AND RECOMMENDATION

Plaintiff Anthony Allen Myers, is currently confined at King County Jail - Regional Justice Center, and filed a 28 U.S.C. § 1983 prisoner civil rights complaint on June 6, 2019. Dkt. 1, 4, 10. The Court declined to serve the complaint because Mr. Myers failed to allege facts sufficient to state a constitutional violation. Dkt. 6. Despite these deficiencies, the Court granted Mr. Myers leave to file an amended complaint. Id.

On September 5, 2019, Mr. Myers filed an amended civil rights complaint in which he names several new defendants and attempts to raise new claims. Dkt. 10. Because Mr. Myers' amended complaint remains fatally deficient, the Court recommends that Mr. Myers' amended complaint be dismissed without prejudice prior to service for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A.

FACTUAL ALLEGATIONS

In his amended complaint Mr. Myers names the following defendants, all employees at King County Department of Adult and Juvenile Detention (KCDAJD): Troy Bacon (Captain), Kelly N. Washington (Grievance Coordinator), Tamra Culver (Kitchen Staff Supervisor), Chelsea Troutman (cook/baker), Frida Ochoa (cook/baker), Rozell Beleford (correctional officer), John Does #1-4 (correctional officers), Sergeant Garret V. Ferreiro (Sergeant, internal investigations unit), and Katherine Marciana Orth (Sergeant). Dkt. 10, at 1. Mr. Myers alleges at the time of the events giving rise to his claim he was a pretrial detainee. Id. He alleges that for a period of time when he first arrived at KCDAJD, he was not given access to mental health treatment or medication for his mental illness of intermittent explosive personality disorder, bipolar, anxiety, and ADHD. Id., at 17. Mr. Myers alleges he was discriminated against by jail staff based upon his mental illness. Id. He states he feels he was punished for manifestations of his mental illness that were brought on by "non-stop organized harassment." Id.

Mr. Myers states he was arrested on September 16, 2018, and classified as medium security. Id., at 18-21. He states at a classification review on October 25, 2018, he was granted a security override to minimum security with the privilege of becoming a jail trustee. Id. Mr. Myers indicates he worked in the AM and PM kitchen without incident for some weeks. Id. In November he requested a job change to midnight custodial and on November 23, 2018, was removed and placed back on medium security over "a poor attitude." Id. Mr. Myers indicates he remained on medium security classification until December 20, 2018, when he was granted another override at a classification hearing. Id. He indicates "classification was willing to grant me the privilege of going to trustee again" but advised him that it was his "last chance." Id.

Mr. Myers states he was assigned to AM kitchen on December 21, 2018, and that "over the next few days groups of inmates would position themselves around me" and "I would be harassed every time I would use the restroom." Id. Mr. Myers states that when he asked why this was happening the inmates would always pretend like nothing happened. Id. He states "I had no idea that it could have been staff initiated or why." Id. He states "after several days of this I would notice a pattern with certain inmates along with defendants Troutman and Ochoa." Id. He states he begged for this to stop but all he received in response was laughter. Id. Mr. Myers states on December 28, 2018, he noticed defendant Ochoa appeared to be "blowing kisses at me." Id. He states that he was confused by this and chose to ignore it. Id. He states that after defendant Troutman overheard him relating this "harassment" to another inmate defendant Troutman also "appears" to be blowing kisses at me. Id. Mr. Myers states that the inmates would also "chant weird comments, repeat things I talk about, isolate my issues, and try to make me feel like I'm going crazy." Id.

Mr. Myers states that he has intermittent explosive personality disorder and when he gets overwhelmed he has outbursts. Id. He indicates that due to this harassment he had an outburst and started yelling at defendant Troutman to "leave me alone" and used profanity. Id. Mr. Myers indicates Correctional Officer Beleford responded to an officer report which stated he was heard yelling at defendant Troutman "'Chelsea leave me alone, get away from me Chelsea.'" Id. Mr. Myers indicates that defendant Beleford asked him what happened and he told him he believed staff was singling him out and harassing him and that defendants Troutman and Ochoa were blowing kisses at him. Id. Mr. Myers indicates he was told by another correctional officer that he would remain a trustee until an infraction was served and then at the hearing Classification would decide. Id.

Mr. Myers alleges on December 28, 2018, Classification made an entry in his behavior log stating "Inmate was heard yelling 'Chelsea leave me alone. Get away from me Chelsea.' Several inmates reported that this inmate acts mentally at night. Cook Troutman felt uncomfortable and feared for her safety. Several of the inmates stated that this inmate was after cook/baker Troutman. Was removed from 8 south, loss of o/r and placed back into MDM custody. Do not return to wks." Id. Mr. Myers states that on December 29, 2018, 14 hours after being placed in restrictive housing, Classification held a "contraindication review" with Sergeant Katherine Marciana Orth. Id. Mr. Myers indicates he never received notice of this hearing and was never provided with its decision or instructed how to appeal and no infraction was issued. Id. Mr. Myers indicates he was in restrictive housing for 24 hours then moved back to medium security unit without a hearing. Id., at 22.

Mr. Myers indicates he filed several grievances related to this occurrence and that some of his grievances were not responded to, were not responded to in a timely way, or he was not satisfied with the response he received. Id., at 22-27.

Mr. Myers states on February 25, 2019, Sergeant Garret V. Ferreiro called him in for a verbal interview and asked him "a string of questions about [Prison Rape Elimination Act] PREA." Id. He claims at that time Sergeant Ferreiro informed him he had "images" of the accusations he made. Id. Mr. Myers indicates he told Sergeant Ferreiro that he did not know why the "harassment" occurred and that "I could be severely mistaken. But I don't think it was sexual in nature." Id. He states he told Sergeant Ferreiro about his mental illness and that "I think they were messing with my mind or trying to drive me crazy." Id. Mr. Myers contends he spoke to Sergeant Ferreiro again in July 2019 and Sergeant Ferreiro told him there were no images orvideo supporting the accusations Mr. Myers made. Id. On August 6, 2019, Mr. Myers received a letter from Sergeant Ferreiro which states:

This letter serves to respond to grievances 0119-074, 0519-012, 0519-031, and 0719-116. These documents relate to your original allegation and complaint of Cook/Baker Ochoa allegedly "blowing kisses" at you on December 28, 2018, and subsequently firing you as a kitchen worker.

If you recall, when I first spoke to you on February 25, 2019 about your allegations, I believed you may have been the victim of a staff Prison Rape Elimination Act (PREA) violation. During that interview you told me you could be "severely mistaken" and admitted that you had been yelling and that you called a Cook/Baker a "bitch." You also stated you did not believe that there was sexual harassment but that you considered it was "messing with your mind". In addition, you provided information on some of your medical issues which may have affected your perception.

Records indicate that you were terminated as an inmate worker on November 23, 2018, for a "poor attitude" and your security override was revoked. You were given another chance as an inmate worker on December 20, 2018 and were terminated over this incident on December 28, 2018. Regardless of what any of the 8 South officers may have told you they thought might happen with your case, those are the facts as recorded in your classification record. This evidence does not show that you were singled out; it represents standard practice for inmate workers.

Shortly after we spoke, I reviewed reports form kitchen staff and reviewed video recordings. These recordings did not show any of the activities you described. I spoke to you later when you were in ITR being transferred to the MRJC, and again while you were enroute to trial. As I told you each time, I do not doubt your sincerity in reporting this incident, have no doubt that the incident has affected you and that you feel unfairly targeted. You asked me to review the video again, but additional video recordings are not available.

Based on the information available, I have found no evidence that corroborates your allegations, which must be closed as unfounded.

Dkt. 10-1, at 27.

DISCUSSION

The Court must dismiss the complaint of a prisoner proceeding in forma pauperis "at any time if the [C]ourt determines" that the action: (a) "is frivolous or malicious"; (b) "fails to state a claim on which relief may be granted"' or (c) "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a), (b). A complaint isfrivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984).

Before the Court may dismiss the complaint as frivolous or for failure to state a claim, though, it "must provide the [prisoner] with notice of the deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal." McGucken v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); see also Sparling v. Hoffman...