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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CHARLES G. FELTS,

Plaintiff,

v.

DOUG WADDINGTON, et al.,

Defendants.

Case No. C05-5818RBL

REPORT AND

RECOMMENDATION

Noted for November 10, 2006

This matter comes before the court on Defendants’ motion for summary judgment (Doc. 59) and

Plaintiff’s “dispositive motion” (Doc. 56). Plaintiff has requested oral argument on these matters. The

court does not find oral argument necessary. After carefully reviewing the record, the undersigned

recommends that the Court grant summary judgment in favor of Defendants and dismiss plaintiff’s

complaint and causes of action.

FACTUAL AND PROCEDURAL BACKGROUND

The Complaint in this case was submitted by Plaintiff, Charles Felts, on or about December 20,

2005, along his application to proceed in forma pauperis (“IFP”), without paying the filing fee. Plaintiff’s

IFP application was granted on January 20, 2006, and the clerk was directed to serve the Complaint on

defendants. Mr. Felts alleges the following facts in his Complaint:

An officer Rydman whom I have never seen before! (I’ve been here five years). States a

shank fell out of my socks when searching my property in my cell G1-A12-L here at

Stafford Creek. There was no shank or anything else there except for some Naproxin for

my arthritis that another inmate gave me, who will remain unnamed! The I&I investigator’s

told me it was a toothbrush with a razor blade ----ed into the handle! At the hearing all of a

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sudden it became a razor handle with a blade wedged in it. Not mine! If it was mine I

would claim it, no finger prints were taken as far as I know if they were , not my

fingerprints on the razor handle or blade. My house was searched on 11-15-05, my

property was not searched until 11-24-05 after I filed the grievance stating I had some

Naproxin there & razor blades, they found the pills & two razors with no handles (1 three

(3) blade)(1 two (2) blade). No other blades were found! When I asked to have this charge

brought against me be put in court on the street that was denied. They the (I&I) said --. 

All we need is 51%. What ever that means! They have no grounds for any of this except

for the appeal I filed with the Supt. Back in Aug. ‘05 which I never got an answer back on. 

Appeal stating they cannot infract me for failing to program, or refusing to go to school. 

(I’m 63 years old), or refusing to work, as they are not on my J&S, so infract the Idiot

counselors, as I try to avoid them, I don’t like idiots! Thank you! The only reason they

found the pills was because I stated I had them in the grievance!

Complaint (Doc. 14) at 3. The Complaint names four defendants: Doug Waddington, the prison’s

superintendent; Mr. Karlow, the superintendent’s designee; Ruben Rivera, the I&I investigator; and Lt.

Haley, the hearings officer.

Plaintiff filed a “dispositive motion” (Doc. 56), received by the court on July 17, 2006. Plaintiff’s

motion seeks a jury trial, without judges, magistrate judges, or attorneys. On July 31, 2005, Defendants

filed the motion for summary judgment (Doc. 59). Defendants argue: (i) Plaintiff has failed to state a

cognizable claim; (ii) Plaintiff has failed to show that his due process rights were violated; (iii) Plaintiff’s

claims are precluded by Edwards v. Balisok and Heck v. Humphrey; (iv) Plaintiff has failed to allege

personal participation of defendants; and (v) Plaintiff’s has not alleged sufficient facts or arguments

necessary to support his request for injunctive relief. On September 18, 2006, the court reviewed the

record and advised Plaintiff as required by Rand v. Rowland, 154 F.3d 952, 962-963 (9th Cir. 1998). See

Doc. 66.

DISCUSSION

A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.2d

1221, 1228 (9th Cir. 1984). When a complaint is frivolous, fails to state a claim, or contains a complete

defense to the action on its face, the court may dismiss an in forma pauperis complaint before service of

process under 28 U.S.C. § 1915(d). Noll v. Carlson, 809 F.2d 1446, 575 (9th Cir. 1987) (citing Franklin

v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)). A plaintiff must allege a deprivation of a federally

protected right in order to set forth a prima facie case under 42 U.S.C. §1983. Baker v. McCollan, 443

U.S. 137, 140 (1979). In order to state a claim under 42 U.S.C. § 1983, a complaint must allege that (l)

the conduct complained of was committed by a person acting under color of state law and that (2) the

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conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the

United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v.

Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an alleged wrong only if

both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985), cert.

denied, 478 U.S. 1020 (1986). Section 1915(e) of the PLRA requires a district court to dismiss an in

forma pauperis complaint that fails to state a claim. 28 U.S.C. § 1915; Barren v. Harrington, 152 F.3d

1193, 1194 (9th Cir.1998).

After reviewing the pending motions and the balance of the record, the court finds the complaint

does not present a cognizable claim, and Plaintiff’s complaint and causes of action should be dismissed. 

The Complaint clearly fails to provide a constitutional basis upon which relief could be granted. The

search of Mr. Felts cell does not provide a basis for a violation of his federal constitutional rights. Inmates

have no reasonable expectation of privacy in their cells or their possessions inside their cells. Hudson v.

Plamer. 468 U.S. 517, 525-526, 104 S.Ct.3194, 3199-3200 (1984); see also Mitchell v. Dupnik, 75 F.3d

517 (9th Cir. 1996)(where the Ninth Circuit held that jail officials did not violate a prisoner's constitutional

rights by searching an inmate's legal papers in his cell outside the presence of the inmate). Moreover,

Plaintiff admitted that the Naproxin pills were in his sock, and he does not challenge the seizure of the pills

as unauthorized contraband. Prison officials have a legitimate interest in not allowing contraband to be

circulated or exchanged between prisoners. 

Arguably, Mr. Felts raises an issue of due process when he was infracted by prison officials for

having a shank with a razor blade wedged into its handle, which was found in the cell search. Mr. Felts

strongly denies that the shank was his, but nonetheless he was given a hearing to present his testimony and

he was given an opportunity to appeal that decision to the Superintendent. Regardless, the court is

prohibited from entertaining such a claim under Edwards v. Balisok, 520 U.S. 641, 649 (1997) and Heck

v. Humphrey, 512 U.S. 477, 487 (1997). These two cases state that a prisoner may not bring a 42 U.S.C.

§ 1983 claim for damages if a judgment in his favor would “necessarily imply the invalidity of the

punishment imposed” at a prison disciplinary hearing. Here, Mr. Felts did not properly challenge the

infraction and he has not been exonerated at any level for the possession of the pills or the shank found in

his personal belongings by the custodial officer.

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Finally, Plaintiff alludes to the cell search as possibly a retaliatory action to his earlier filing of a

grievance dealing with refusal to program or attend school classes in prison. To state a claim for

retaliation, a plaintiff "must allege both that the type of activity he engaged in was protected under the

constitution and that the state impermissibly infringed upon his right to engage in the protected activity." 

Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). As explained above a cell search is not an action

taken by prison officials that impermissibly infringed on Plaintiff’s rights to engage in the filing of

grievances. In fact the record shows that Plaintiff filed a grievance related to the cell search. 

 CONCLUSION

For the reasons outlined above the undersigned recommends GRANTING summary judgment in

favor of Defendants. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil

Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also

Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. 

Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is

directed to set the matter for consideration on November 10, 2006, as noted in the caption. 

DATED this 20th day of October, 2006.

/s/ J. Kelley Arnold J. Kelley Arnold

United States Magistrate Judge

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