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Jones v. Rojas

United States District Court, D. Oregon, Pendleton Division

September 30, 2019

M. ROJAS, et al., Defendants.



         On July 1, 2019, this court dismissed plaintiff's 42 U.S.C. § 1983 claim against defendant Andre Johnson, an inmate legal assistant at Snake River Correctional Institution (“SRCI”), because plaintiff failed to allege facts showing that Johnson acted under color of state law. Order, ECF #51. Plaintiff has filed a Motion to Supplement Complaint (ECF #60) to which he has attached a proposed Second Supplemental Complaint (ECF #60-1), alleging supplemental claims against defendant M. Rojas and realleging his claims against Johnson. ECF #60. Defendants do not object to plaintiff's proposed supplemental claims against Rojas. Resp. 2, ECF #65. However, as defendants contend, plaintiff's claims against Johnson should again be dismissed because he has failed to sufficiently allege that Johnson acted under color of state law. Id.


         I. Plaintiff's Claims Against Johnson

         In his proposed Second Supplemental Complaint, plaintiff continues to assert that Rojas, a law librarian, denied him “pleading paper or white typing paper” “because [she] specifically knew she would be a defendant in the civil rights complaint plaintiff was seeking to prepare. . . .” Second Supp. Compl. ¶ 46, ECF #60-1. On September 16, 2017, plaintiff submitted an inmate communication form, requesting pleading paper or typing paper “that can be used under federal and state court rules.” ECF #60-1, at 35. He complained that, although he was allowed to use the word processor in the law library to prepare his pleadings, it was “time restricted, ” and he needed pleading paper or typing paper to take back to his cell so he could finish handwriting his complaint.[1] Id. at 35-36. Plaintiff contends he was told that, following a rule change in 2017, [2]the prison was no longer providing pleading paper to inmates in general population, and only providing it to inmates in special housing units, such as disciplinary segregation and administrative segregation. Id. Plaintiff claimed the rule change was “being used to obstruct and delay [his] access to the court by denying [him] paper.” Id. at 36.

         In response to plaintiff's inmate communication form, Rojas asked plaintiff to cite “the rule requiring pleading paper for your legal document” and gave plaintiff “options.” Id. at 35. Rojas also called plaintiff's housing unit officer on September 19, 2017, and requested that plaintiff be given 10 sheets of “indigent paper.” Id.

         On October 9, 2017, plaintiff filed a grievance form, complaining that the indigent paper was “brown, ” and insisted that he needed “pleading paper.” Id. at 39. He cited to this court's Local Rule 5-5, which pertains to “Paper Requirements, ” and provides that “[p]aper copies filed with the clerk must be on one-sided 8 ½” x 11” white paper of good quality.” Id. at 41. Plaintiff also claimed that he could not place lined paper underneath the “brown” indigent paper and see through it to keep his writing even.[3] Id. at 42. Plaintiff's grievance was denied because he “refused to provide staff with sufficient information to verify [his] eligibility for pleading paper/white paper.” Id. at 44. Plaintiff filed an appeal, which was denied because he failed to meet his “obligation to provide documentation to support [his] requests for supplies beyond those allowed by” O.A.R. 291-139. Id. at 51.

         Plaintiff subsequently filed another grievance on December 11, 2017, complaining again that he was being denied “pleading paper/white paper.” Id. at 73. In response, Rojas noted that plaintiff had been advised “multiple times of the rules and requirements, of the Legal affairs (inmate) Division l 39 of the OAR, and the requirements for Electronic filing with the U.S. District Court.” Id. at 79. Regarding O.A.R. 291-139, Rojas explained:

September 2017 was the implementation of the new rules of Division 139 and starting September 2017 the Pleading Paper was no longer handed out in the law libraries for General Population, unless it is required by court rule. AIC Jones has been advised that according to the rules, he can be provided with paper, which is available, to indigent inmates, in all General Population Housing Units as well as in the Law library.

Id. at 79. Rojas also elaborated about the requirements of this court's e-filing pilot program with SRCI:

SRCI is currently into a Pilot Program with the U.S. District Court for E-Filing as of October 2017. The U.S. District Court has provided SRCI with the requirements for this Pilot Program for E-Filing. The requirements are clearly specified on the SCANNING REQUEST forms which are provided to all inmates who are filing with the U.S. District Court and states “By order of the Federal Courts[.]” The requirements are listed on the forms and the only specification, requested by the court, is 8 ½ x 11 inch paper, single sided only. This is the size paper that is provided for all indigent inmates in SRCI and that is available in all housing units for General Population.

Id. Rojas concluded, “To date [plaintiff] has not been able to show me the rule that states a 1983 Civil Suit requires pleading paper.” Id. Plaintiff's appeals of this grievance were denied. Id. at 88

         In his Second Supplemental Complaint, plaintiff alleges that Johnson conspired with Rojas to deny him the paper:

62. Defendant Johnson in conspiratorial concert and joint action with defendant Rojas have sought to deny plaintiff “pleading or plain white typing paper, ” which is provided to prisoners housed in special housing, to prepare their complaints, in retaliation against plaintiff for seeking to exercise plaintiff's access to court and redress of grievance against defendant Rojas, other prison officials, and both defendant Rojas and Johnson, conspiratorily [sic] acts to deny plaintiff “pleading or plain white typing paper” served no legitimate penological interest and placed chilling effect upon plaintiff['s] right to seek access to court and redress of grievance in violation of plaintiff['s] First Amendment right under the United States Constitution.
63. Defendant Rojas in conspiratorial concert and in joint action with defendant Johnson denied plaintiff “pleading/plain white typing paper, ” and arbitrarily treated plaintiff differently from other prisoners similarly situated . . . and there was no rational basis by defendant Rojas, in conspiratorial concert and in ...

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