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Storm v. McClusky

United States District Court, D. Idaho

October 30, 2019

RICKIE STORM, Plaintiff,
DAVID McCLUSKEY, et al., Defendants.



         The Clerk of Court conditionally filed Plaintiff Rickie Storm's Complaint because he is an inmate and he requested in forma pauperis request. The Court now reviews the Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file an amended complaint if Plaintiff desires to proceed.


         PLAINTIFF has filed a motion asking this Court to recuse itself from presiding over his case. A motion for recusal or disqualification of a judge must be timely and must show bias or prejudice. See 28 U.S.C. §§144, 455. The party seeking disqualification must file a “sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party.” 28 U.S.C. § 144. The affidavit must “state the facts and the reasons for the belief that bias or prejudice exists” and must be made in good faith. Id.

         Only after determining the legal sufficiency of a § 144 affidavit is a judge obligated to reassign the motion to another judge for a decision on the merits. Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988). Where the motion for disqualification asserts bias or prejudice, recusal or disqualification under § 144 and § 455 is required “only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding.” Id. at 1387-88 (internal citations omitted). Disagreements with the rulings of the court are “the basis for appeal, not recusal.” In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004). The only exception is where the Court's substantive rulings were products of deep-seated favoritism or antagonism that made fair judgment impossible.” Id. (internal citation and punctuation omitted).

         Here, Plaintiff articulates his reasons for recusal as follows: “Plaintiff's last experience with this Court ended where summary judgment was granted because of Plaintiff's inability to present matters to the Court appropriately, ” and “Plaintiff believes the matter before the court needs to be addressed for the betterment of society and to ensure people with sex offenses get rehabilitation and not just warehoused away from society and disregarded.” (Dkt. 9, p. 3.)

         These reasons clearly do not meet the standards for recusal set forth above. Simply because Plaintiff lost another case before this Court is not a matter for recusal- especially without any facts whatsoever to show why the case had the particular outcome it did. Neither does Plaintiff set forth any support for his position that the magistrate judges in this court would apply the law to the facts any differently from this Court. The motion will be denied.


         1. Screening Requirement

         The Court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary dismissal is appropriate. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).

         2. Pleading Standard

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint fails to state a claim for relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In other words, Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant's liability, ” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted).

         PLAINTIFF brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).

         3. Factual Allegations

         PLAINTIFF is a prisoner in the custody of the Idaho Department of Correction (IDOC). The IDOC website shows that Plaintiff is 59 years old, and that he is serving a sentence for forgery. He is parole-eligible on March 27, 2020, and his full-term sentence satisfaction date is March 26, 2027.[1]

         Attempting to prepare for his anticipated parole, Plaintiff asked the IDOC to transfer him to a community re-entry center (CRC) or work release program (WRP). On or about April 16, 2019, Defendants refused to grant him approval to be transferred because his record reflects that he was convicted of a sex offense 38 years ago. Defendants told Plaintiff that he must be within 18 months of a tentative parole date or a sentence satisfaction date before he potentially can be eligible for an Off Compound Approval (OCR). (Dkt. 3-1, p.1.) It appears that he is within that time frame, but the old sex offense is preventing him from the transfer options he desires. For simplicity's sake, in this Order the Court will refer to all of these programs collectively as “community release programs.”

         PLAINTIFF alleges that Defendants' policies, procedures, and placement matrices used to screen prisoners for parole are prejudicial to him and have caused him injury, including suffering from suicide ideation, depression, anxiety, and post-traumatic stress disorder. He asserts that an unbiased review should be afforded every sex offender in an individualized manner, allowing them to present facts about the age of the sex offense, institutional behavior, and parole behavior. He argues that the current “blanket” policies prevent sex offenders from interacting with “a normal and positive community” and instead keep sex offenders in prison where they “are required to survive every day with negative comments about being a sex offender or how sex offenders should be dead.” (Dkt. 3, pp. 4-5.) He brings his claims under the Eighth Amendment Cruel and Unusual Punishment Clause and the Fourteenth Amendment Due Process Clause and Equal Protection Clause. He also alleges that the policies violate the Idaho Constitution and Idaho statutes.

         4. Discussion

         A. Eighth Amendment

         PLAINTIFF's Eighth Amendment claim is unclear. Prisoner conditions-of-confinement claims are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment. See Farmer v. Brennan,511 U.S. 825, 832 (1994); Johnson v. Lewis,217 F.3d 726, 731 (9th Cir. 2000). The Eighth Amendment “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). While conditions of confinement may be harsh and restrictive without being a violation of the Eighth Amendment, they cross the line of acceptability when they (1) involve “the wanton and unnecessary infliction of pain, ” (2) are “grossly disproportionate to the severity of the crime warranting imprisonment, ” (3) ...

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