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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

NICHOLAS S. ROY,

Plaintiff,

v.

VICTORIA BARSHAW, et al.,

Defendants.

Case No. C06-5296FDB

REPORT AND

RECOMMENDATION

Noted for October 26, 2007

This case has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§

636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and MJR 4. The matter is

before the court on defendants’ motion for summary judgment (Doc. 44) and defendants’ motion to

dismiss (Doc. 58). After reviewing the motions, plaintiff’s opposition, and the remaining record, the

Court should grant defendants’ motion for summary judgment and dismiss plaintiff’s causes of action.

FACTUAL BACKGROUND

In his Amended Complaint (Doc. 7), under the section entitled, “IV. Statement of Claim” plaintiff

was directed to briefly describe the facts of his case and to describe how each named defendant was

involved. Plaintiff provided a seven-page chronological log of events beginning in June 2004 through

March 2006, describing events and allegations to support various claims made within the factual scenario. 

A summary of the allegations follows:

In June 2004, plaintiff prevailed in a consolidated lawsuit brought against the State of

Washington, and was awarded $183.00 in costs. Two months later, Plaintiff was awarded $795.00 in

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compensatory damages and costs of $97.32 in a lawsuit brought against the Department of Corrections

(“DOC”) and certain employees thereof. Because of his legal success noted above, plaintiff claims

defendants retaliated against him in the form of a transfer to a more restrictive unit, a recalculation and

eight-month enhancement to his prison sentence, and the filing of seven writs of garnishment in Asotin

County Superior Court. 

In February 2006 plaintiff negotiated a settlement in yet another unrelated lawsuit filed against the

Department of Corrections and certain employees thereof, including Risa Klemme, who is a defendant

named in the instant matter. Plaintiff received $450.00 to settle the matter, and the settlement agreement

specifically stated the funds would be placed in Plaintiff’s spendable trust account without any deductions

by the Department of Corrections. Plaintiff claims that in retaliation for his continued success defendants

in this action advised the Asotin County Court of the availability of funds which lead to Asotin County

Superior Court filing another writ of garnishment on his inmate trust account funds. (Eventually the

claim for funds made by Asotin County was released, and thus, plaintiff’s funds were not garnished, but

were frozen from March 20, 2006 until May 4, 2006.) 

Plaintiff claims defendants further retaliated against his success in bringing legal action against the

Department of Corrections and its employees by denying him a transfer into a minimum custody unit,

initiating several unwarranted minor infractions between December 2005 through April 2006, harassing

statements from prison officers, unnecessary difficulty in obtaining copies of his legal materials from his

prison counselor, not allowing plaintiff to attend his classification/review hearing, denial of his request

for an extended family visit with his mother, dismissal from his prison employment, the unnecessary use

of a risk management team to address unsubstantiated behavior problems, wrongful delay in allowing

plaintiff to transfer to conduct legal work, the loss of his housing assignment and lengthy denial of access

to his personal property, including his legal materials. In addition to retaliation, plaintiff claims

defendants acts, or omission to act, violated his rights protected by the First, Fifth, Eighth, and Fourteenth

Amendments to the United States Constitution. 

The Amended Complaint names the following four defendants: Victoria Barshaw, a former trust

account manager at DOC; Gricelda Medina-Hansen, a financial analyst for DOC; Risa Klemme, the

public disclosure coordinator for DOC; and Denise Felton, a custodial unit supervisor for DOC. Plaintiff

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seeks compensatory damages and punitive damages, in the amount of $50,000.00. In addition, plaintiff

asks the court for injunctive relief in the form of an order prohibiting any future retaliation.

On May 10, 2007, defendants filed a motion for summary judgment (Doc. 44). Defendants argue:

(i) Victoria Barshaw should be dismissed for lack of service; (ii) plaintiff fails to state a claim; (iii)

plaintiff fails to demonstrate defendants retaliated against him; (iv) plaintiff does not have a liberty

interest in the minor infractions he received; (v) plaintiff fails to allege personal participation of

defendants Klemme and Hansen; (vi) plaintiff fails to meet the heavy burden necessary for the court to

grant a permanent injunction; and (vii) defendants are entitled to qualified immunity. 

After reviewing the motion for summary judgment and other pending motions, on May 25, 2007,

the undersigned directed service of the amended complaint on Victoria Barshaw, and extended the time

for plaintiff to file opposition to the motion. Thereafter, defendant Barshaw appeared in the matter and

filed a motion to dismiss (Doc. 58). The motion to dismiss reflects many of the arguments made in the

motion for summary judgment, i.e., defendant Barshaw argues plaintiff has failed to state a claim,

plaintiff has failed to demonstrate defendant Barshaw retaliated against him, plaintiff does not have a

liberty interest in the minor infractions he received, plaintiff has failed to meet his burden to support a

permanent injunction, and defendant Barshaw is entitled to qualified immunity. 

DISCUSSION

Summary judgment is proper only where "the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). 

The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257. Mere disagreement or the bald assertion that a

genuine issue of material fact exists no longer precludes the use of summary judgment. California

Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987),

cert. denied, 484 U.S. 1006 (1988). Defendants' have met their burden of demonstrating that there are no

genuine issues of material fact and that they are entitled to judgment as a matter of law. Plaintiff has

failed to avert summary judgment by showing that a issue of material fact remains for trial.

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A. PLAINTIFF HAS FAILED TO SHOW PERSONAL PARTICIPATION BY DEFENDANTS KLEMME AND HANSEN

Defendant argues plaintiff fails to show or demonstrate the necessary personal participation by

defendants Klemme and Hansen to maintain a cause of action against these named defendants. Having

reviewed this argument this court agrees – plaintiff has failed to sufficiently describe how defendants

Klemme and Hansen were personally involved in the alleged deprivations. 

In order to state a claim under 42 U.S.C. § 1983, a complaint must allege facts showing how

individually named defendants caused or personally participated in causing the harm alleged in the

complaint. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). A defendant cannot be held liable

under 42 U.S.C. § 1983 solely on the basis of supervisory responsibility or position. Monell v. New York

City Dept. of Social Services, 436 U.S. 658, 694 n.58 (1978). A theory of respondeat superior is not

sufficient to state a § 1983 claim. Padway v. Palches, 665 F.2d 965 (9th Cir. 1982). 

Here, defendants Gricelda Medina-Hansen and Risa Klemme are named in the individual

capacities employed as a financial analyst and public disclosure coordinator, respectively, for the DOC. 

Plaintiff does not provide sufficient details in his Amended Complaint to explain either of these

defendants specific role in the alleged deprivations or violations of his federal civil rights. A review of

the Amended Complaint reflects no mention of defendant Hansen, other than one note indicating she was

a named defendant in one of plaintiff’s state civil action. Defendant Klemme name was utilized more

often, but again it was only in the context that she was an employee of DOC, an associate of the other

defendants, and she was also identified as a defendant in one or more of plaintiff’s state court civil

lawsuits. Plaintiff’s Amended Complaint fails to show how either of these two defendants personally

participated in the alleged claims or causes of action.

Similarly, plaintiff fails to show how defendants Klemme or Hansen personally participated in the

alleged claims in his pleadings filed in opposition to the motion for summary judgment. Plaintiff attempts

to link defendants Klemme and Hansen to the complaint by stating they were each “principles” or “coconspirators” to certain acts. For instance, plaintiff alleges defendant Klemme was a “principle” or “coconspirator” of defendant Barshaw’s when Asotin County was contacted and informed that plaintiff had

funds in his inmate trust account which led to garnishment of his funds. Plaintiff further states defendants

Klemme and Felton acted as “principles” or “co-conspirators” when his extended family visit application

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was denied, when his request for off-cite work crew was denied and when he was denied the opportunity

to attend his classification hearing. Plaintiff admits, “Ms. Klemme retaliated against Plaintiff by and

through her subbordinates [sic] as she herself didn’t have direct contacts with Plaintiff at AHCC.”

To show defendant Hansen participated in the alleged violations, plaintiff states defendant

Hansen’s job duties make her a “co-conspirator.” Plaintiff explains, “Hansen had to of had direct or

indirect knowledge of the acts of retaliation that were committed by her or Victoria Barashaw [sic](Ms.

Hansen’s supervisor at DOC). Ms. Hansen is just as guilty as a co-conspirator of violating Plaintiff’s

Constitutional Rights.” Plaintiff’s Opposition Brief (Doc. 57) at 21. 

 As stated above, after reviewing the specific details of the alleged participation of defendants

Klemme and Hansen, the undersigned finds that plaintiff has not shown sufficient facts to support a 

§1983 claims against either of these defendants. Ms. Klemme and Ms. Hansen cannot be held liable

based on their supervisory capacity, as noted above, nor their alleged knowledge of the claims plaintiff is

making. Allegations of a conspiracy must be supported by specific factual allegations to establish a

claim. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 626 (9th Cir.1988). The court

should dismiss defendants Klemme and Hansen from this matter.

B. RETALIATION

The bulk of plaintiff’s Amended Complaint is focused on a claim of retaliation. To state a claim

for retaliation, a plaintiff "must allege both that the type of activity he engaged in was protected 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). An inmate must show that he or she was retaliated against for

exercising constitutional rights and that the retaliatory action did not advance legitimate penological

goals, such as preserving institutional order and discipline. Barnett v. Centoni, 31 F.3d 813, 186 (9th Cir.

1994).

Defendants argue that the actions alleged to be retaliatory by plaintiff were necessary and proper

responses to plaintiff’s behavior. For example, defendants explain that plaintiff’s application for an

extended family visit was denied by the Facility Risk Management Team because plaintiff had not been

programming for a minimum of six months, and he had received a serious infraction within the previous

12 months. Plaintiff contests these reasons, but the court further notes that Plaintiff does not have a right

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to extended family visits protected by the U.S. Constitution. Toussaint v. McCarthy, 801 F.2d 1080, 113

(9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987). The denial of his application for an extended family

visit does not support his claim or retaliation or any other cause of action.

Similarly, plaintiff’s claims of denial of access to his legal material or his placement in a particular

prison unit do not support a claim of retaliation or a separate cause of action. First, inmates do not have a

constitutionally protected liberty interest in either remaining in the general prison population or,

alternatively, in not being placed in administrative segregation. Smith v. Noonan, 992 F.2d 987 (9th Cir.

1993). . See Toussaint v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir. 1986)(an inmates transfer to

administrative segregation falls within the terms of confinement ordinarily contemplated by a sentence);

May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997)(placement in segregation resulting in the loss of

recreation time and other privileges does not rise to a constitutional deprivation requiring adequate due

process safeguards). 

Plaintiff claims defendants retaliated against him when he was denied transfer to a particular unit,

which consequently caused him to lose temporary access to his personal property, including his legal

materials. The Supreme Court has held that prisoners have a constitutional right of meaningful access to

the courts premised on the Due Process Clause. Bounds v. Smith, 430 U.S. 817, 821 (1977). "Right of

access" claims that do not allege inadequacy of the law library or inadequate assistance from persons

trained in the law, must allege an "actual injury" to court access. Sands v. Lewis, 886 F.2d 1166, 1171

(9th Cir. 1989). An "actual injury" consists of some specific instance in which an inmate was actually

denied access to the courts. Id. Only if an actual injury is alleged may plaintiff's claim survive. Id

Here, plaintiff does not show any “actual injury” to support an independent “access to court”

claim against defendants. Moreover, the transfer and temporary loss of use of his personal property was

within the discretion of the DOC. Plaintiff had been transferred in the pat to accommodate his need to

access a legal library, and it appears his placement has been due in part to his behavior. The court finds

no basis for a claim of retaliation. Transfer from one institution to another does not implicate due

process. Meachum v. Fano, 427 U.S. 215, 225 (1976). 

In sum, the court finds no factual basis sufficient to support a claim of retaliation. The court

should grant defendant’s motion to dismiss plaintiff’s retaliation claims, as well as plaintiff’s claims

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related to the denial of his application for an extended family visit, plaintiff’s access to courts, and

plaintiff’s claim of improper transfer to another unit or custody level. 

C. CRUEL AND UNUSUAL PUNISHMENT

 To state a claim of cruel and unusual punishment plaintiff must satisfy two requirements:

First, the deprivation alleged must be, objectively, "sufficiently serious" . . .. For a claim (like

the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated

under conditions posing a substantial risk of serious harm.

Farmer v. Brennan, 114 S.Ct. 1970, 1977 (1994). Second, "[t]o violate the Cruel and Unusual

Punishment Clause, a prison official must have a `sufficiently culpable state of mind' . . .. [T]hat state of

mind is one of `deliberate indifference' to inmate health or safety." Id. (citations omitted). The prison

official will be liable only if "the official knows of and disregards an excessive risk to inmate health and

safety; the official must both be aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference." Id. at 1979.

Here, plaintiff claims defendants continued retaliatory actions constitute cruel and unusual

punishment. As explained in this report, plaintiff has failed to show defendants alleged behavior

amounted to retaliation. More importantly, plaintiff has not shown that defendant’s acts or omissions to

act have been sufficiently serious to support an Eighth Amendment claim. The court further finds that

the prison records indicate that the actions taken allegedly against plaintiff were not taken with the intent

to violate the Cruel and Unusual Punishment Clause of the U.S. Constitution. Accordingly, defendants’

motion for summary judgment should be granted and plaintiff’s claim(s) based on cruel and unusual

punishment should also be dismissed.

D. DUE PROCESS

The Due Process Clause of the Fourteenth Amendment provides that no state shall deprive “any

person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV. Procedural

due process does not protect the actual deprivation of the life, liberty, or property in question, but ensures

that individuals are given an adequate opportunity to challenge the government action. Carey v. Piphus,

435 U.S. 247, 259 (1978). To state a claim for a violation of procedural due process, plaintiffs must show

(1) a protected interest has been taken, and (2) procedural safeguards are inadequate. Board of Regents v.

Roth, 408 U.S. 564, 569-70 (1972).

The Supreme Court changed the analysis employed in determining whether a state has created a

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protected liberty interest entitling an inmate to the procedural protections afforded by the Due Process

Clause. Sandin v. Conner, 115 S.Ct. 2293, 2300 (1995). We no longer focus on the language of prison

regulations to determine whether such regulations place substantive restrictions on an official's

discretion. Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir.1995).

In Sandin, the Supreme Court was called upon to determine whether Hawaii prison regulations or the

Due Process Clause afforded Sandin a protected liberty interest that would entitle him to procedural

protections before transfer into segregation. The Court held that prisoners have liberty interests protected

by the Due Process Clause only where the contemplated restraint "imposes atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison life." Sandin, 115 S.Ct. at 2300. In its specific

application to inmate Sandin, the Court stated the test another way: "Based on a comparison between

inmates inside and outside disciplinary segregation, the state's actions in placing [Sandin] there for 30 days

did not work a major disruption in his environment." Id. at 2301. The Court rejected its prior test

traditionally used to determine whether a prison regulation creates a liberty interest, to wit: whether the

relevant regulation contains language that is mandatory or discretionary. Id. at 2298-2300. The Court in its

new approach seeks to prevent turning every rule or regulation that establishes a procedure or requires the

provision of an amenity into a right that implicates a liberty interest. It cited examples, inter alia: tray lunches

rather than sack lunches, any book that is not a security threat, and cells with TV and electric outlets.

Here, plaintiff claims a violation of his due process rights when he was transferred into another

custody level, denied the opportunity to attend his classification review hearing, and received numerous

infractions. As explained above, prisoners to not have a protected liberty interest in remaining in one prison

unit over another. Furthermore, plaintiff’s infractions did not result in the loss of good time or any other

protected liberty interest. As such, plaintiff’s due process claim must fail. Defendant’s motion to dismiss

plaintiff’s due process claims should be granted.

E. QUALIFIED IMMUNITY

State officials are entitled to qualified immunity unless he or she violated clearly established law

of which a reasonable person should have known. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727,

2732 (1982). When evaluating the issue of qualified immunity, the court must follow a two-part test for

qualified immunity announced in Saucier v. Katz: (1) whether the facts alleged "show [that] the officer[s']

conduct violated a constitutional right"; and (2) whether the constitutional right in question was "clearly

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established" such that "it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted." 533 U.S. 194, 201-02 (2001); see also Estate of Ford v. Ramirez-Palmer, 301

F.3d 1043, 1050 (9th Cir.2002).

Here, plaintiff claims defendants retaliated and violated his U.S. Constitutional rights when

Victoria Barshaw contacted Asotin County Superior Court and informed the court funds in plaintiff’s

inmate trust account were available to be garnished. The undersigned is not aware of any federal law or

standard that clearly prevents state prison officials from contacting a state government creditor to inform

them of available monies. Accordingly, the claimed right has not been clearly established, and defendant

Barshaw could reasonably believe her actions were lawful. Defendant Barshaw is entitled to qualified

immunity. 

CONCLUSION

The undersigned has reviewed all of plaintiff’s allegations and causes of action. Based on the

foregoing discussion, the Court should GRANT both defendants’ motion for summery judgment 9Doc.

44) and defendant Barshaw’s motion to dismiss (Doc. 58). When presented with the factual allegations

and support provided by the parties in support of and opposition to defendants’ dispositive motions, no

reasonable juror could find that plaintiff was retaliated against, denied due process, subjected to cruel and

unusual punishment or otherwise denied any constitutional right as alleged by plaintiff. 

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 October 26, 2007, as noted in the caption. 

DATED this 4th day of October, 2007.

/s/ J. Kelley Arnold J. Kelley Arnold

United States Magistrate Judge

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