GARY S. AUSTIN, Magistrate Judge.
Kevin Darnell Bryant ("Plaintiff"), a state prisoner proceeding with counsel, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 26, 2012. (ECF No. 1.) This case now proceeds with the First Amended Complaint ("FAC"), filed on December 2, 2013, against defendants Lieutenant (Lt.) Constance Waddle and Correctional Officer (C/O) E. Castellanos, for retaliation against Plaintiff in violation of the First Amendment. (ECF No.16.)
On April 1, 2016, defendant Waddle ("Defendant") filed a motion for summary judgment. Fed. R. Civ. P. 56. (ECF No. 96.) On June 16, 2017, Plaintiff filed an opposition, and on June 30, 2017, Defendant filed a reply.
Any party may move for summary judgment, and the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted);
Defendant does not bear the burden of proof at trial and in moving for summary judgment, he or she need only prove an absence of evidence to support Plaintiff's case.
However, in judging the evidence at the summary judgment stage, the court may not make credibility determinations or weigh conflicting evidence,
Plaintiff is presently incarcerated at Salinas Valley State Prison. The events at issue occurred in 2010 and 2011 at Kern Valley State Prison (KVSP) in Delano, California, when Plaintiff was incarcerated there.
Plaintiff alleges as follows in his amended complaint. On June 7, 2010, Plaintiff filed a form 602 prison appeal against C/Os R. Romero and Patrick Gallagher concerning Plaintiff's prison job assignment. On November 30, 2010, defendant Lt. Waddle found out that Plaintiff had filed the appeal, and she ordered Plaintiff locked up in administrative segregation (Ad-Seg) claiming that she and Captain Cano were doing this to prevent Gallagher and Romero from retaliating against him if they were disciplined because of an investigation. Plaintiff alleges, however, that Lt. Waddle did not do this to protect Plaintiff, but to have Plaintiff moved to Facility D so Waddle could have Plaintiff threatened and assaulted in order to force Plaintiff to drop his appeal against Gallagher and Romero. On March 10, 2011, C/O Redmon moved Plaintiff and his cell mate from Building 6 to Building 1, cell 225. Redmon told Plaintiff that Lt. Waddle wanted him moved.
Plaintiff alleges that Lt. Waddle conspired with C/O D. Sellers to get Plaintiff assaulted for filing the 602 appeal. Plaintiff has a signed declaration from inmate Cleave McCloud, J-55573, stating that C/O Sellers told McCloud to assault Plaintiff because of the appeal. On April 15, 2011, the day Sellers was planning to have Plaintiff assaulted, Associate Warden Wood called Plaintiff to the Captain's Office to speak to him. Plaintiff told Wood about Sellers and Waddle conspiring to have Plaintiff assaulted by inmates in Building 1. Wood issued an order to move Plaintiff to Building 8 to try to prevent the assault. Lt. Waddle spoke to Plaintiff on his way out, telling Plaintiff that she runs this place and none of Plaintiff's 602 appeals would ever be granted at KVSP again as she knows somebody in the appeals office who is going to see to that. Waddle also told Plaintiff to be very careful about who Plaintiff files appeals or complaints against.
Plaintiff was moved to Building 8. Lt. Waddle conspired with C/O Castellanos to have some inmates in Building 8 assault him. On May 8, 2011, Castellanos withheld one of Plaintiff's outgoing letters and stole 40 stamps out of it.
On June 6, 2011, in Plaintiff's other lawsuit in this court, 1:11-cv-00046,
On June 29, 2011, defendant Castellanos went into Plaintiff's cell while he was away at the law library, searched the cell, and deliberately ripped the cable off the back of Plaintiff's TV breaking off the whole piece that the cable screws onto. Now there is nothing to screw a cable onto.
In July 2011, defendant Castellanos told Plaintiff that he knew Plaintiff filed the staff misconduct appeal and the lawsuit against C/Os Gallagher and Romero, and that if he doesn't drop it all right away something bad is going to happen to Plaintiff.
On July 24, 2011, the building porter, inmate Moore #H-23858, told Plaintiff that defendant Castellanos told him to get some inmates together and have them all jump Plaintiff and hurt him badly. Inmate Moore also told Plaintiff that defendant Castellanos told him it was because of the lawsuit Plaintiff filed against his friends Gallagher and Romero.
On July 28, 2011, Sergeant (Sgt.) Rivera came to Building 8 to talk to Plaintiff. Defendant Castellanos, CCI Lane, and another officer were present. Sgt. Rivera asked Plaintiff to sign a pink 128 chrono he had, which was allegedly written by defendant Castellanos and falsely stated that Castellanos had interviewed Plaintiff about some inmates who may be out to get Plaintiff. Plaintiff told Sgt. Rivera that defendant Castellanos had not interviewed him about this. Sgt. Rivera asked Plaintiff if he knew of any inmates out to get Plaintiff. Plaintiff asked him if he and Castellanos knew of any. Sgt. Rivera refused to answer and told Plaintiff that if he didn't sign the chrono he would lock Plaintiff up in Ad-Seg. Plaintiff told him that his (Plaintiff's) only safety concerns were about the officers who are conspiring to harm him in retaliation for his appeals and lawsuit, and if any inmates are out to harm Plaintiff it's because one of the officers paid or manipulated them to do it. Plaintiff signed the chrono under reservation of rights by writing "All Rights Reserved" above his signature. As soon as he signed it, Mr. Lane told Plaintiff, "Now if you get stabbed we are not responsible or liable and you can't sue us." (ECF No. 16 ¶28.)
On July 30, 2011, defendants Waddle and Castellanos conspired to have Plaintiff stabbed by two inmates, during which time Plaintiff believes that they were going to have the Building 8 control booth officer shoot him with a mini 14 assault rifle and try to kill him. Inmate Moore came to Plaintiff's cell and told him that defendant Castellanos had paid two inmates to assault Plaintiff by stabbing him because of the lawsuit and his failure to drop it, like defendant Castellanos had threatened. Inmate Moore lied, saying it was two Mexican inmates and Castellanos who were going to open Plaintiff's door and let them stab Plaintiff, but Plaintiff saw it was two black inmates out in the rotunda waiting. Moore was trying to trick Plaintiff into coming out of his cell so they could stab him, where they had a clear shot to shoot him. Plaintiff refused to come out of his cell. Plaintiff began packing up all of his property in big trash bags and boxes. At noon pill call, Plaintiff handed C/O B. Rodriguez a note under his cell door that said, "My life is in danger. Somebody is out to kill me." (ECF No. 16 ¶32.)
Plaintiff told C/O Rodriguez and defendant Castellanos that he wanted to be placed in Ad-Seg for his safety and wanted to talk to ISU Lt. Stiles. Defendant Castellanos became furious and started calling Plaintiff vulgar names and cursing him out. Castellanos demanded to know what Plaintiff was going to tell the lieutenant, and told Plaintiff not to go to Ad-Seg, begging Plaintiff to just let him move Plaintiff to Building 6 and not to tell anyone about this, promising not to have Plaintiff assaulted. Plaintiff refused his offer and demanded to be placed in Ad-Seg, so Castellanos began threatening Plaintiff, stating that if he told ISU Lt. Stiles that he was trying to have Plaintiff assaulted, he would send somebody to kill Plaintiff's family members and have him murdered in Ad-Seg or wherever he went. Defendant Castellanos told Plaintiff to keep his mouth shut and drop the lawsuit and 602 appeals he filed, or Plaintiff and his family, including his kids, would be killed.
Defendant Castellanos and C/O Rodriguez boxed up Plaintiff's property out of Plaintiff's sight, while Plaintiff was locked in the shower stall, and Castellanos stole over $500 worth of Plaintiff's property, including photos of Plaintiff and his family and two address books containing their addresses. They moved Plaintiff to a holding cage in the program office where Castellanos continued to threaten Plaintiff and asked him not to go to Ad-Seg or tell ISU what happened. Defendant Castellanos told Plaintiff he stole Plaintiff's property and admitted that he deliberately broke Plaintiff's TV on June 29, 2011, because he did not drop the lawsuits and appeals, and told Plaintiff he would not get his property back unless he did this right now.
On or about August 2, 2011, Lt. Waddle came to Ad-Seg to allegedly videotape his statement, but Plaintiff refused to talk to her unless ISU Lt. Stiles was present. She became furious, cursed Plaintiff, and told Plaintiff he would get what he had coming. She tried to trick Plaintiff into giving a statement, but he did not fall for it.
Before Plaintiff gave any statement or saw anyone from ISU, defendant Waddle and Captain Henderson generated a false investigation report which stated they had investigated all of Plaintiff's allegations and nothing was found. They recommended that Plaintiff be sent back to D-yard. Plaintiff explained to Warden Martin D. Biter on August 9, 2011, that the report was untrue.
On August 17, 2011, defendant Waddle arranged to have inmate Cleave McCloud put in Plaintiff's cell by force, because Plaintiff refused to accept him. McCloud admitted to Plaintiff that Lt. Waddle told him to assault Plaintiff and force him to drop his lawsuit and appeals, and stop Plaintiff from telling ISU what she and Castellanos conspired to do to Plaintiff. Plaintiff has a second signed declaration from McCloud stating what Lt. Waddle told him to do.
Plaintiff also found out that defendant Castellanos wrote a false 115 RVR stating that he found a razor blade in Plaintiff's property on July 30, 2011. Castellanos had told Plaintiff he was going to do this if Plaintiff didn't do what Castellanos wanted.
All the time that the defendants threatened to harm Plaintiff and his family, he was in constant fear for his life and his family's lives, and he had to repeatedly talk to his psychiatric case workers about his fears, and they documented it every time. Plaintiff was interviewed about these events by ISU Lt. Stiles and each interview was recorded by him, and he alleged that an investigation would be conducted. Prison officials, ISU staff, and the defendants conspired to cover it all up to protect the defendants.
Based on these allegations, Plaintiff claims violations of the First Amendment.
Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit.
"[T]o properly exhaust administrative remedies prisoners `must complete the administrative review process in accordance with the applicable procedural rules,' [ ]—rules that are defined not by the PLRA, but by the prison grievance process itself."
Moreover, the Ninth Circuit has recognized that a grievance suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To provide adequate notice, the prisoner need only provide the level of detail required by the prison's regulations.
A prisoner may be excused from complying with the PLRA's exhaustion requirement if he establishes that the existing administrative remedies were effectively unavailable to him.
A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available to him.
In submitting an inmate grievance, California regulations require a prisoner to "list all staff members involved" and to "describe their involvement in the issue." Cal. Code Regs. tit. 15, § 3084.2(3). However, the Ninth Circuit has recently held that "a prisoner exhausts such administrative remedies as are available . . . under the PLRA despite failing to comply with a procedural rule if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process."
Nonetheless, for administrative remedies to be exhausted by California prisoners as to defendants who were not identified in the inmate grievance, there must be a "sufficient connection" between the claim in the appeal and the unidentified defendants such that prison officials can be said to have had "notice of the alleged deprivation" and an "opportunity to resolve it."
The court takes judicial notice of the fact that the State of California provides its prisoners and parolees the right to appeal administratively "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). The process is initiated by submitting a CDCR Form 602.
California prisoners are required to submit appeals within thirty calendar days of the event being appealed, and the process is initiated by submission of the appeal at the first level.
The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion.
Summary judgment is appropriate when it is demonstrated that there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
In a summary judgment motion for failure to exhaust administrative remedies, the defendants have the initial burden to prove "that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy."
Defendant argues that there is no evidence, except Plaintiff's vague allegations in the FAC, that Plaintiff filed any 602 appeals against Defendant. In support of this argument, Defendant cites Plaintiff's FAC (ECF No. 16); the declarations of defendant Waddle (Appendix, Exh. B, ECF No. 96-2 at 24-28), Appeals Coordinator D. Tarnoff (
In the FAC, Plaintiff alleges that he was obstructed from exhausting his administrative remedies as to Defendant at the institutional level, but that he repeatedly filed appeals anyway, which were rejected by Appeals Coordinator B. Daveiga to prevent exhaustion. (FAC at 4.) Defendant asserts that Plaintiff never provided copies of the supposed rejections or what they say, and that he fails to identify any dates when he allegedly filed these appeals. Defendant provides evidence that Plaintiff admitted in his deposition that he does not recall if he ever filed a 602 against Defendant, and he does not think that he ever had an appeal go to the third level regarding Defendant. (Exh. A to Appendix, ECF No. 96-2, Bryant Depo. at 74:19-25, 84:8-9.) Defendant also asserts that there is no record at KVSP of Plaintiff submitting any appeal against Defendant for retaliating against him and/or trying to have him assaulted by other inmates, (Exh. C to Appendix, ECF No. 96-2, Tarnoff Decl. ¶5), or having an appeal decided by the Office of Appeals at the third level of review relating to the allegation that Defendant tried to have other inmates attack Plaintiff or that she retaliated against him in any other way, (Exh. D to Appendix, ECF No. 96-2, Voong Decl. ¶9). Defendant argues that there is no evidence that she (Waddle), the Appeals Coordinator, or anyone else interfered with his ability to exhaust Plaintiff's administrative remedies. Defendant provides evidence that she never instructed former KVSP Appeals Coordinator Daveiga or anyone else to screen out appeals filed against her by Plaintiff or any other inmate. (Exh. A to Appendix, ECF No. 96-2, Waddle Decl. ¶18.)
Plaintiff claims that he did submit 602 appeals against Defendant, but that his appeals were improperly screened out, such that Plaintiff could not pursue his administrative remedies. Plaintiff submits as evidence his declaration and attached exhibits (ECF No. 203) and inmate Cleave McCloud's declaration of June 21, 2015. (
Plaintiff argues that he satisfied his requirement to exhaust remedies because he submitted several 602 appeals against Defendant between August 18, 2011, and March 27, 2013, and these 602 appeals were repeatedly screened out for improper reasons or never responded to. (Bryant Decl. ¶7 and documents attached as Exhibit A thereto (ECF No. 203). Plaintiff declares that Appeals Coordinator Daveiga wrongfully screened the appeals out as duplicates or as "living conditions" appeals, when the appeals were not duplicates and addressed staff misconduct, not living conditions. (
Plaintiff asserts that Defendant deceptively claims, in her motion for summary judgment, that Plaintiff failed to file a 602 appeal against her. Specifically, Plaintiff asserts that Defendant took one page of Plaintiff's deposition out of context and fails to provide the court with subsequent pages that explain that Plaintiff stated he filed a 602 appeal against Waddle and his appeals were improperly screened.
(Bryant Depo. at 75: 8-18.)
Plaintiff set forth in his FAC:
(FAC, ECF No. 16 at 3.)
Plaintiff further testified during his deposition why his 602 appeal against Defendant was screened out:
(Bryant Depo. at 78: 6-10)
Q. So that's—specifically about your complaint against Lieutenant Waddle was screened out because it said it's about living conditions?
(Id. at 78:24 to 79:10).
(Id. at 79:17 to 80: 6).
Plaintiff also finds Defendant's claims deceptive that "Bryant also admits that he does not think that he ever had an appeal go to the third level regarding Lieutenant Waddle," because Defendant has extracted one question out of context that does not provide Plaintiff's complete testimony. Plaintiff asserts that in his deposition, he clarified that he believed he appealed the 602 to the third level, although he was not required to do so as his 602 appeals were improperly screened out at the first level.
(Id. at 84: 8 to 85:4).
Plaintiff also asserts that he received letters from Appeals Coordinator Daviega, screening out the 602 appeals he filed against Defendant. Plaintiff submits three CDC-695 forms, which serve as first level screening for 602 appeals. (Bryant Decl., ECF No. 203-2 at ¶7 and Exh. A at 12-14.) These forms are dated September 12, 2011, November 22, 2011, and December 27, 2011. (
(Bryant Decl., ECF No. 203-2 at 15-16 (Exh. A).
Plaintiff also filed other appeals against Defendant after the FAC was filed, including one dated January 16, 2013, and another dated March 27, 2013. (
Defendant asserts that Plaintiff does not dispute that he never had an appeal regarding his retaliation claims against her decided at the third level. In reply to Plaintiff's argument that he filed several appeals which were improperly screened, Defendant argues that the appeals produced by Plaintiff in his opposition are insufficient to show that administrative remedies were not available to him. Defendant discusses Plaintiff's appeals dated January 16, 2013, March 27, 2013, November 9, 2011, and November 15, 2011. The court shall address these appeals and Defendant's arguments in the discussion that follows.
There is no dispute that KVSP has a process available for prisoners to file grievances against prison staff. In her motion to dismiss, Defendant provides sufficient evidence that there is no record at KVSP that Plaintiff submitted any appeal during the relevant time, accepted or screened out, against Defendant for retaliating against him and/or trying to have Plaintiff assaulted by other inmates. (Tarnoff Decl., ECF No. 96-2 at 32-33 ¶¶7, 8.) Defendant also cites Plaintiff's deposition testimony in which Plaintiff states that he does not recall if he ever filed a 602 appeal against Defendant, and he does not think that he ever had an appeal go to the third level regarding Defendant. (ECF No. 96-2, Exh. A to Appendix, Bryant Depo. at 74:19-25, 84:8-9.) The court finds that Defendant has carried her initial burden to prove that there was an available administrative remedy and that Plaintiff did not exhaust that available remedy. Therefore, the burden shifts to Plaintiff to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.
Plaintiff does not dispute the fact that he never successfully completed a form 602 appeal against Defendant through all three levels of review. However, Plaintiff declares that he submitted appeals against Defendant that were either improperly screened out or not responded to. Plaintiff provides copies of letters and 602 appeals he submitted and responses that he received in Exhibit A to his declaration. (ECF No. 203-2, Exh A.) Plaintiff states that he could not find copies of two of the appeals. (Bryant Decl., ECF No. 203-2 ¶7.) Plaintiff declares that the documents found in Exhibit A are "true and correct copies of some of the 602 appeals he submitted and the rejection letters described herein." (
Plaintiff provides copies of letters dated August 2, 2011, August 3, 2011, August 9, 2011, September 28, 2011, March 7, 2012, March 19, 2012, June 3, 2012, and October 6, 2012, handwritten by Plaintiff to various places, including the Appeals Coordinator, Internal Affairs, and the Prison Law Office. (ECF No. 203-2, Exh. D.) Plaintiff also provides copies of responses he received, some which clearly informed him that "[i]t is important to note that the filing of a letter does not meet the criteria of the Prison Litigation Reform Act for exhaustion administrative remedies," and informing him of his right to file a 602 appeal. (
Two of Plaintiff's appeals are dated January 16, 2013, and March 27, 2013. (ECF No. 203-2 at 8-10.) Defendant argues that these two appeals are dated two years after Plaintiff claims that Defendant allegedly threatened him, and the current appeals coordinator at KVSP has verified that there is no record that these appeals were ever submitted, accepted, or screened out by the appeals office. (Gonzales Decl., ECF No. 206-3 at 3 ¶4.) The court finds that these two appeals provide no evidence that Plaintiff still had administrative remedies available when he filed suit, because they are dated after December 26, 2012, the date he filed this lawsuit. Prisoners are required to exhaust the available administrative remedies prior to filing suit.
Appeal KVSP-0-11-01416 was submitted by Plaintiff at the first level of review on November 9, 2011. Plaintiff complained as follows:
(ECF No. 203-2, Exh. C.)
Plaintiff requested action as follows:
(
Defendant argues that this appeal fails to satisfy the exhaustion requirement because it does not pertain to Plaintiff's allegations against Defendant, but instead relates to Plaintiff's allegations that a bald correctional officer allegedly punched him in the mouth on November 9, 2011. Defendant asserts that the appeal does not mention Defendant or indicate that she was involved in any way. This appeal was accepted for review at the second level, but there is no evidence that it was reviewed at the second level, improperly screened out, or sent to the third level.
Plaintiff's appeal dated November 15, 2011, complains as follows:
(
Plaintiff requested this action be taken:
(
Defendant argues that this appeal fails to satisfy the exhaustion requirement as to Defendant, because the appeal does not mention Defendant. Defendant further asserts that Plaintiff's complaint does not mention being hit by the correctional officer, which is a separate issue.
Plaintiff submits three of the prison's responses to his appeals, which notified him that the appeals were being returned to him without a decision. The response dated September 12, 2011, rejects the appeal, referred to as "Segregation/SHU, 09/07/2011," at the first level of screening because "[y]our appeal has been rejected pursuant to the California Code of Regulations, Title 15, Section (CCR) 3084.6(b)(3) [because y]ou have exceeded the allowable number of appeals filed in a 14 calendar day period pursuant to CCR 3084.4(g)." (ECF No. 203-2 at 12.) Plaintiff has not argued that this appeal was screened out improperly.
The other two responses appear to be rejections of Plaintiff's November 15, 2011, appeal discussed above, which was re-submitted after the first rejection. The response dated November 22, 2011, rejects Plaintiff's appeal, titled by the prison as "Living Conditions, Other, 11/12/2011," at the first level of screening as a "[d]uplicate of appeal received on 11/17/11." (ECF No. 203-2 at 13.) Plaintiff argues, in notations on the response, that that this rejection is improper because his appeal is about "safety and security," not living conditions, and is not a duplicate appeal, "because I have never requested a DRB Review or Referral ever before." (
Defendant argues that these rejections are not improper because Plaintiff did file a similar appeal just six days prior, and that Plaintiff's allegations against the correctional officer had already been processed and everything else Plaintiff noted in his appeal related to future events. Defendant also notes that Plaintiff was the one who characterized the November 11, 2011, appeal as a "Request for warden to make DRB Referral re imminent danger." (ECF No. 203-2 at 15-16, 24-26.)
The court finds the screening-out of Plaintiff's November 15, 2011, appeal on November 22, 2011, and December 27, 2011, to be improper on the bases that (1) it is a duplicate of his November 9, 2011, appeal, (2) it concerns an anticipated action or decision, (3) it improperly requests a DRB referral, and (4) it refers to previously filed staff complaints.
First, the court finds that the November 15, 2011, appeal was improperly rejected as a duplicate of the November 9, 2011, appeal. In the November 9, 2011, appeal, Plaintiff reports that a correctional officer slapped him in the mouth and took his property, and the appeal requests financial compensation for the assault and his missing property, to be allowed to send his property home, and to be transferred to another prison.
The November 15, 2011, appeal reports a life or death emergency due to an imminent threat of serious injury from retaliation by staff. While the appeal does mention the assault by the correctional officer and Plaintiff's loss of property, these incidents are used as examples of recent retaliation and harassment by staff. Plaintiff also reports that there is a recorded interview from November 30, 2010, in which he told Lt. Stiles and Lt. Harden about what is happening to him. Plaintiff also alleges that he is being mentally tortured by staff. In the November 15, 2011, appeal, Plaintiff requests to be transferred to a safe place and to have this issue referred to the Departmental Review Board (DRB) so they can listen to the recorded interview. Based on these differences between the November 9, 2011, appeal and the November 11, 2011, appeal, the court finds that the November 15, 2011, appeal was improperly screened out as a duplicate of the November 9, 2011, appeal.
To the extent that the appeals coordinator considers Plaintiff's report of "an imminent threat of serious injury from retaliation by staff," to be an "anticipated action or decision" the court finds the rejection of the appeal on this basis to be improper, particularly because retaliation stems from an adverse action against Plaintiff and "the mere threat of harm can be an adverse action. . . ."
The court also finds the rejection of the appeal because Plaintiff "may not appeal to receive a DRB referral [and t]he appeal form is not a request form," to be improper. The appeal form clearly is a "request form," as it includes a section for the prisoner to write down the "Action requested" by the prisoner. (ECF No. 203-2 at 15.) While it may be accurate that the appeals process is not the proper vehicle for requesting a DRB referral, rejecting Plaintiff's appeal on this basis alone, considering the substance of Plaintiff's appeal, appears improper, because pursuant to Cal. Code Regs. tit. 15, § 3084.1(a), the State of California provides its prisoners and parolees the right to appeal administratively "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare."
Finally, the court considers whether Plaintiff's November 15, 2011, appeal was sufficient to put defendants on notice of the nature of the wrongs alleged in his complaint against Defendant. Plaintiff alleged in that appeal, as he does in his FAC, that prison officials have retaliated against him since 2010, placing him in danger of further assault. Plaintiff alleged that prison officials cannot be trusted to investigate themselves because staff at KVSP will not go against each other over an inmate. Plaintiff alleges that an interview with Plaintiff was recorded by Lt. Stiles, Lt. Harden, and Sgt. A. Sells on September 30, 2010, concerning the wrongs against him.
Plaintiff was not required to identify defendant Waddle by name to exhaust the grievance against her. Neither the PLRA itself nor the California regulations require an inmate to identify responsible parties or otherwise to signal who ultimately may be sued.
Having found that Plaintiff filed an inmate appeal that sufficiently put the prison on notice of the nature of the wrong alleged in his retaliation claims, the court finds that Defendant has not established that Plaintiff failed to exhaust his available administrative remedies prior to filing suit.
As discussed by the Ninth Circuit in
Not every allegedly adverse action will support a retaliation claim.
To raise a triable issue as to motive, a plaintiff must offer "`either direct evidence of retaliatory motive or at least one of three general types of circumstantial evidence [of that motive]', which usually includes: `(1) proximity in time between protected speech and the alleged retaliation; (2) [that] the [defendant] expressed opposition to the speech; [or] (3) other evidence that the reasons proffered by the [defendant] for the adverse . . . action were false and pretextual.'"
The Court must "`afford appropriate deference and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory."
Unless otherwise noted, these facts are undisputed by the parties or as determined by the court based on a thorough review of the record.
1. Plaintiff, Kevin Bryant, a prisoner of the State of California, was housed at Kern Valley State Prison from 2009 to 2013. He is currently housed at Salinas Valley State Prison. (Exh. I to Appendix, Bryant's Movement History.)
2. Defendant Waddle is currently employed by the California Department of Corrections and Rehabilitation ("CDCR") as a Correctional Lieutenant at Kern Valley State Prison ("KVSP"). She has held this position since 2008. (Exh. B to Appendix, Waddle Decl. ¶ 2.)
3. Lieutenant Waddle interviewed inmate Bryant about his allegations on November 15, 2010. On December 8, 2010, Inmate Bryant was informed that an inquiry to his allegations was conducted and staff did not violate CDCR policy. (Exh. B to Appendix, Waddle Decl. ¶ 5; Exh. G to Appendix, Staff Complaint Response to Appeal #KVSP-O-10-02161.
4. On November 30, 2010, Lieutenant Waddle endorsed Plaintiff for placement in Ad-Seg. The Administrative Segregation Unit Placement Notice states that the reason for placement is "jeopardizes integrity of an investigation of alleged serious misconduct or criminal activity." (Exh. B to Appendix, Waddle Decl. ¶ 6; Exh. H to Appendix, Administrative Segregation Unit Placement Notice from November 30, 2010.)
5. California Code of Regulations Title 15 Section 3335 states that one of the reasons an inmate will be placed in Administrative Segregation is if he endangers the institution's security or jeopardizes the integrity of an investigation of an alleged serious misconduct. (Exh. B to Appendix, Waddle Decl. ¶ 6.)
6. Plaintiff claims that Lieutenant Waddle told him she was placing him in Administrative Segregation for his protection. (Exh. A to Appendix, Bryant Depo at 88:18-23.)
7. Ultimately, the institution decided to move Bryant to Facility D Sensitive Needs Yard instead of Administrative Segregation. This decision was made by the facility captain, who signed the Administrative Segregation Unit Placement Notice on December 1, 2010. (Exh. B to Appendix, Waddle Decl. ¶ 8.)
8. According to inmate Bryant's movement history, he was moved to Facility D Sensitive Needs Yard on December 4, 2010. (Exh. B to Appendix, Waddle Decl. ¶9; Exh. I to Appendix, Bryant's Movement History.)
9. Bryant was never assaulted by any inmates he alleges were enlisted by Defendant Waddle. (Exh. A to Appendix, Bryant Depo at 90:17-20.)
10. Bryant does not allege that Lieutenant Waddle told him that she was going to have inmates assault him in building 1. (Exh. A to Appendix, Bryant Depo at 97:19-22.)
11. Bryant never heard Lieutenant Waddle and Correctional Officer Sellers allegedly talk about having him assaulted. (Exh. A to Appendix, Bryant Depo at 98:10-17.)
12. Inmate McCloud was never offered compensation.
13. Bryant never saw Lieutenant Waddle speak to inmate Moore about allegedly assaulting him. (Exh. A to Appendix, Bryant Depo at 104:15-17.)
14. Bryant never saw Lieutenant Waddle speak to inmate Moore about allegedly assaulting him. (Exh. A to Appendix, Bryant Depo at 104:15-17.)
15. Bryant never heard Lieutenant Waddle and Officer Castellanos discuss having him assaulted.
16. Inmate Moore never assaulted Bryant.
17. Bryant never saw any Mexican inmates come to his cell to attack him on the day he alleges that inmate Moore set him up to be attacked. (Exh. A to Appendix, Bryant Depo at 29:16-30:9.)
18. Bryant believes that inmate Moore had enlisted two black inmates nicknamed Psych and Tennis to assault him. Bryant saw these inmates peek around the window in the rotunda. These inmates never actually attacked Bryant or said that they were going to. (Exh. A to Appendix, Bryant Depo at 104:20-105:13; 107:7-9.)
19. Bryant never saw Lieutenant Waddle speak to the control booth officer or anyone about doing anything to him. (Exh. A to Appendix, Bryant Depo at 109:19-22.)
20. Lieutenant Waddle never assaulted inmate Bryant.
21. Bryant was never assaulted.
22. There is no record that Bryant had an appeal decided by the Office of Appeals at the Third Level of review relating to the allegation that Lieutenant Waddle tried to have other inmates attack inmate Bryant or retaliated against him in any other way. (Exh. D to Appendix, Voong Decl. ¶ 9.)
23. Bryant does not recall specifically speaking to the appeals coordinator about an appeal regarding Lieutenant Waddle. (Exh. A to Appendix, Bryant Depo. at 86:14-19.)
24. Lieutenant Waddle is not aware of any appeals that inmate Bryant has filed against her regarding his allegations that she conspired to have him assaulted, which is the subject of this complaint. Lieutenant Waddle has never seen such an appeal, nor has any staff ever told her that such an appeal exists. (Exh. B to Appendix, Waddle Decl. ¶ 17.)
25. In 2010, the policy stated that if an appeal is not properly or timely submitted, it will be "screened out" and returned to the inmate without assigning a log number, with the reason for the screening, and instructions on how to correct the defect, if correction is possible. An inmate may resubmit his appeal for a subsequent review, and the appeal will then be logged into the Inmate Appeal Tracking System (IATS) if the inmate followed all instructions given on the "screen out" and resubmitted it in a timely manner. (Exh. C to Appendix, Tarnoff Decl. ¶ 6.)
Defendant Waddle moves for summary judgment on Plaintiff's claim for retaliation against her, on the grounds that there is no evidence that Plaintiff was assaulted, that Defendant ever conspired with anyone to have Plaintiff assaulted, or that Defendant's actions were motivated by Plaintiff's appeals or legal action against Officers Gallagher and Romero. Defendant asserts that although Plaintiff claims he was told by inmates McCloud and Moore that they were enlisted by Defendant to assault him, these inmates have signed statements flatly denying such allegations. Defendant further asserts that the undisputed evidence shows that Defendant moved Plaintiff to administrative segregation to preserve the integrity of the investigation as to his complaint against Officers Gallagher and Romero, not to have him assaulted or in retaliation for pursuing legal action.
Defendant offers as evidence the declarations of Defendant Waddle, inmate McCloud, and inmate Moore; Plaintiff's deposition testimony; and prison records including Bryant's Movement History, the Staff Complaint Response to Plaintiff's Appeal #KVSP-O-10-02161, and the November 30, 2010, Administrative Segregation Unit Placement Notice.
Defendant argues that there is no evidence that Plaintiff's Ad-Seg placement was an adverse action, and that evidence shows that Defendant approved Plaintiff to go to Ad-Seg to protect him while the investigation of his allegations against Officers Romero and Gallagher were pending. Defendant offers the following evidence.
California Code of Regulations Title 15 Section 3335 states that one of the reasons an inmate will be placed in Ad-Seg is if he jeopardizes the integrity of an investigation of an alleged serious misconduct. 15 CCR § 3335. Plaintiff himself admitted at his deposition that Defendant told him she was placing him in Ad-Seg for his protection:
(Exh. A to Appendix, Bryant Depo at 88:18-23.)
Defendant asserts that throughout the FAC, Plaintiff states that whenever he felt threatened by other inmates or staff, he would ask to be placed in Ad-Seg. Defendant offers this example from the FAC: "I told both Rodriguez and Castellanos that I want to be put in Ad-Seg for my safety." (FAC at 8 ¶33.)
Defendant also argues that there is no evidence that she conspired with Officer Sellers and inmate McCloud to have Plaintiff assaulted in April 2011, because a conspiracy requires a meeting of the minds, and there is no evidence of a meeting of the minds to have Plaintiff assaulted in alleged retaliation for pursuing legal action against Officers Romero and Gallagher. As evidence, Defendant offers excerpts from her declaration inmate McCloud's declaration, and Plaintiff's deposition testimony.
Lieutenant Waddle declared:
(Exh. B to Appendix, Waddle Decl. ¶¶ 12-13.)
(
Plaintiff testified:
(ECF No. 96-2, Exh. A to Appendix, Bryant Depo at 103:15-17.)
Inmate McCloud declared:
(Exh. 6 to Castellanos MSJ, ECF No. 92-9, McCloud Decl. ¶ 5.)
At his deposition, Plaintiff testified that he never saw or heard Defendant and C/O Sellers talk about having him assaulted, and he has no evidence, except McCloud's alleged words, that Defendant enlisted inmate McCloud to assault him:
(ECF No. 96-2, Exh. A to Appendix, Bryant Depo. at 98:10-17.)
Regarding whether inmate McCloud ever signed any declarations for Plaintiff, McCloud declared:
(Exh. 6 to Castellanos MSJ, ECF No. 92-9, McCloud Decl. ¶4.)
(
Defendant also argues that Plaintiff has no evidence of a conspiracy to assault him in July 2011, and asserts that Plaintiff's claims are even more convoluted and specious. Plaintiff testified in his deposition:
(ECF No. 96-2, Exh. A to Appendix, Bryant Depo. at 104:20-105:13.)
(
Inmate McCloud denied this bizarre scenario:
(Exh. 6 to Castellanos MSJ, ECF No. 92-9, McCloud Decl. ¶3.)
Defendant states that Plaintiff has no evidence that she was involved, and that there is no connection between her and inmate Moore, or between her and the inmates who were allegedly going to stab Plaintiff. Plaintiff testified:
(ECF No. 96-2, Exh. A to Appendix, Bryant Depo. at 103:19-20.)
Inmate R. Moore declared:
(Exh. 7 to Castellanos MSJ, ECF No. 92-9, Moore Decl. ¶2.)
(
Defendant argues that Plaintiff cannot establish that the retaliatory act was "because of" Plaintiff's protected conduct. Defendant argues there is no direct evidence that her motive to act was to retaliate against Plaintiff for pursuing legal action against Officers Romero and Gallagher, as shown by Plaintiff's deposition testimony that he never saw or heard Defendant discuss or plan the attempted assaults on him with any officer or inmate.
Defendant also asserts that there is no circumstantial evidence supporting Plaintiff's claim based on the timing of events, because Plaintiff alleges that Defendant found out about his claims against officers Romero and Gallagher in November 2010, but Plaintiff alleges that Defendant orchestrated the inmate attacks against him 5-7 months later, in April and July 2011. Defendant argues that Plaintiff cannot show that she expressed opposition to his protected conduct, because Defendant denied it in her declaration, discussed above, and also denied that she threatened Plaintiff in any way.
(ECF No. 96-2, Exh. B to Appendix, Waddle Decl. ¶16.)
Based on the foregoing, the court finds that Defendant has met her burden of setting forth evidence that there is no genuine issue of material fact for trial, which shifts the burden to Plaintiff to submit admissible evidence showing the existence of genuine issues for trial.
Plaintiff argues that a genuine dispute of material fact exists. Plaintiff submits as evidence the Complaint, FAC, Undisputed Facts, declarations of inmate McCloud, Plaintiff's own declaration, copies of Plaintiff's 602 appeals and responses, excerpts from Plaintiff's deposition testimony, and the court docket in case
On June 30, 2017, Defendant filed objections to Plaintiff's evidence on hearsay grounds, for lack of foundation, as irrelevant, as speculative, as unduly prejudicial, and for lack of authentication. (ECF No. 206-2.) The court notes Defendant's objections. If the court refers to any of Plaintiff's evidence in this order without addressing the objections, by implication the objections to that evidence are overruled.
Plaintiff argues that there is a genuine dispute of fact as to what actions Defendant took against him and whether they were adverse.
Plaintiff asserts that there is a dispute of fact as to whether Defendant told inmate McCloud to assault Plaintiff. A dispute exists because McCloud's declaration signed on April 24, 2017, contradicts McCloud's declaration signed on June 21, 2015. In the June 21, 2015, declaration, upon which Defendant relies, McCloud recants statements he made in prior declarations he signed in 2011, which supported Plaintiff's allegations:
(Exh. 6 to Castellanos MSJ, ECF No. 92-9, McCloud Decl. ¶ 5.)
In the April 24, 2017, declaration, McCloud changes his story again:
(Exh. B to Plaintiff's Declaration, ECF 203-2 at 20.)
Plaintiff argues that this evidence creates a genuine dispute of material fact as to what Defendant told McCloud and the veracity and credibility of both with respect to their testimony regarding the same.
Plaintiff argues that the facts differ as to why Defendant tried to place Plaintiff in Ad-Seg. Plaintiff claims that Defendant tried to place him in Ad-Seg so he could be assaulted:
(Bryant Decl., ECF 203-2 ¶¶4, 5.)
However, Defendant claims that the only reason she attempted to place Plaintiff in Ad-Seg was to protect him and ensure his safety while an investigation as to his allegations of Romero and Gallagher were looked into:
(Waddle Decl., Exh. B to Appendix, ECF No. 96-2 at 25 ¶¶6-7.) Attached as Exhibit "H" is a true and accurate copy of the Administrative Segregation Unit Placement Notice from November 30, 2010. Defendant argues that her approval therefore was not an adverse action nor was it done to jeopardize Plaintiff's safety, but the very opposite.
As to whether Defendant acted because of Plaintiff's appeals against Officers Romero and Gallagher, Defendant claims that she only knew about Plaintiff's staff conduct complaint against Gallagher and Romero for interfering with his mail and appeals, not about Plaintiff's complaint against them for having him assaulted:
(Waddle Decl., Exh. B to Appendix, ECF No. 96-2 at 25 ¶5.)
Plaintiff questions Defendant's credibility in stating that she did not know about Plaintiff's staff misconduct complaint against Gallagher and Romero for having Plaintiff assaulted, because this complaint raises safety concerns that would warrant moving Plaintiff to Ad-Seg, whereas the appeal concerning mail and appeals does not raise such concerns.
Plaintiff also argues that Defendant's claim that she transferred Plaintiff to Ad-Seg for his safety is suspect because Defendant did not recommend Plaintiff's placement in Ad-Seg until November 30, 2010, over two weeks after Defendant claims to have interviewed Plaintiff regarding his staff complaint on November 15, 2010. (Waddle Decl., Exh. B to Appendix, ECF No. 96-2 at 25 ¶6) (quoted hereinabove).
Plaintiff argues that there is a dispute of fact whether there was a direct connection between Defendant and Inmate Moore. Defendant refers to testimony in Plaintiff's deposition in support of her argument that there was no direct connection:
(ECF No. 96-2, Exh. A to Appendix, Bryant Depo. at 103:15-21.)
Plaintiff asserts that Defendant deceptively left out lines of testimony that show a connection between Waddle and Moore, for example:
(
Plaintiff also points to his deposition testimony stating that "Inmate Moore told me that Castellanos told him to assault me and ma[k]e me drop my cases and my complaints against staff." (ECF No. 203-2, Exh. E to Plaintiff's Declaration, Bryant Depo. at 11:20-22.) However, the court finds that inmate Moore's statement is inadmissible hearsay. Fed. R. Evid. 802.
The court finds genuine issues of material fact as to whether Defendant acted adversely against Plaintiff and whether her actions were in retaliation for Plaintiff filing appeals and a lawsuit.
The parties do not dispute that on October 2, 2010, Plaintiff filed a form 602 prison appeal against Officers Romero and Gallagher for interfering with Plaintiff's mail and appeals, that Plaintiff filed an appeal regarding his claim that Officer Romero and Officer Gallagher conspired to have him assaulted, that on March 17, 2011, Plaintiff filed a lawsuit against Officers Romero and Gallagher, and that Plaintiff filed several appeals against defendant Waddle in 2011 through 2013. These facts are sufficient to satisfy the first element of a retaliation claim, demonstrating that Plaintiff exercised his protected rights under the First Amendment.
The parties do not dispute that on November 30, 2010, Defendant recommended that Plaintiff be placed in Administrative Segregation, or that the form signed by Defendant stated that Plaintiff was being placed there "after making allegations of staff misconduct [and] based upon the aforementioned information you will remain in Administrative Segregation pending investigation into staff misconduct." (ECF No. 96-2, Appendix Exh. H.) However, the parties dispute the reason that Defendant recommended this placement for Plaintiff. Plaintiff contends that Defendant sought to place him in Ad-Seg to have him assaulted by other inmates, whereas Defendant declares that Plaintiff was recommended for Ad-Seg pursuant to California Code of Regulations Title 15 Section 3335, which states that one of the reasons an inmate will be placed in Ad-Seg is if he endangers the institution's security or jeopardizes the integrity of an investigation of an alleged serious misconduct. (Waddle Decl., ECR No. 96-2, Appendix Exh. B ¶7.)
Plaintiff's evidence of Defendant's state of mind when she recommended Ad-Seg for Plaintiff is disputed. Plaintiff declares that in April 2011, Defendant told him that "the only way I would leave the prison was in a body bag and that I better be very careful about which staff I write 602 appeals, complaint and lawsuits against and what I say in those documents." (Bryant Decl., ECF No. 203-2 at 2 ¶6.) Defendant declares that she "never threatened or assaulted inmate Bryant." (Waddle Decl., ECF No. 96-2, Appendix Exh B. ¶12.) Thus, the parties dispute whether Defendant made threats to Plaintiff and whether she was in a state of mind to have Plaintiff assaulted for filing appeals.
Plaintiff also alleges that Defendant conspired with other officers and inmates to have him assaulted. However, Plaintiff has presented no admissible evidence of a conspiracy, and Defendant denies any conspiracy. Plaintiff declares that Inmate McCloud "told him in 2011 that he had assaulted inmates when asked by Waddle in exchange for payment and favors from Waddle" and that "on or about August 16, 2011, Waddle told him to assault me in Ad Seg." (Bryant Decl., ECF No. 203-2 at 3 ¶9.) Plaintiff also declares that he "learned from inmate Moore that Castellanos and Waddle were trying to have me assaulted by him and other inmates." (
Based on the evidence, the court finds that a genuine issue exists as to whether Defendant took an adverse action against Plaintiff.
The facts are disputed as to whether Defendant acted against Plaintiff because Plaintiff filed prison appeals and a lawsuit. Plaintiff declares that on November 30, 2010, before Defendant recommended that Plaintiff be placed in Ad-Seg, she "escorted me from my cell to the program office where she showed me the October 2, 2010, staff misconduct complaint that I filed against Officers Gallagher and Romero." (Bryant Decl., ECF No. 203-2 at 2 ¶4.)
Plaintiff also alleges that Defendant was friends with Officers Romero and Gallagher, declaring:
(
Defendant declares:
(Waddle Decl., ECF No. 96-2, Appendix Exh B. ¶16.)
Plaintiff's allegation that Defendant warned him that he better be very careful about which staff he writes 602 appeals, complaints, and lawsuits against and what he says in those documents is also a disputed fact, as discussed above.
Based on the evidence, the court finds that a genuine issue exists as to whether Defendant took an adverse action against Plaintiff because Plaintiff filed appeals or a lawsuit.
As to a chilling effect, the Ninth Circuit has explained that the proper analysis of such a retaliation claim is not whether a plaintiff was actually chilled in the exercise of his constitutional rights.
While Defendant argues that she recommended Plaintiff's placement in Ad-Seg for a legitimate correctional purpose, the proximity in time to Defendant allegedly showing Plaintiff a copy of his inmate appeal could reasonably support a jury finding for Plaintiff on the issue. Defendant may very well have believed that Plaintiff posed a threat to the institution based on the possibility he may jeopardize an ongoing investigation. And after considering the testimony of Defendant as well as Plaintiff, a reasonable jury might fully credit Defendant's explanation for her recommendation to transfer Plaintiff to Ad-Seg. Preserving institutional order, discipline, and security are legitimate penological interests that, if they in fact motivated acts taken, will defeat a retaliation claim.
In sum, the court finds that Plaintiff has submitted sufficient evidence to establish a genuine issue of material fact as to whether Defendant retaliated against him. A trier of fact will consider the credibility of the parties and their witnesses and determine the weight to give to that testimony, a determination which cannot be made on summary judgment.
Defendant argues that she is entitled to qualified immunity for endorsing Plaintiff to be housed in Ad-Seg.
"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct."
To determine whether a government official should be granted qualified immunity, under the first prong, the facts are to be viewed "in the light most favorable to the injured party."
Under the second prong, clearly established law is not to be defined "at a high level of generality."
"To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right."
Defendant argues that she did not violate Plaintiff's First Amendment rights, as there is no evidence that she took adverse action against Plaintiff or that her alleged actions were motivated to chill Plaintiff's right to pursue appeals and legal claims. Defendant also argues that it would not have been clear to a reasonable official that her actions in the same circumstances as defendant Waddle could have violated Plaintiff's constitutional rights, specifically that it was unlawful for her to approve Plaintiff for Ad-Seg. to preserve the integrity of an investigation under California Code of Regulations Title 15 Section 333.
Plaintiff responds that Defendant failed to address all of Plaintiff's allegations when arguing that qualified immunity applies, including allegations that Defendant solicited Castellanos, Moore, and McCloud to assault Plaintiff or arranged to have others do it. Plaintiff argues there can be no qualified immunity for those actions as no reasonable prison official would have any doubt that such conduct was a blatant violation of Plaintiff's civil rights. With respect to the allegation that Defendant attempted to place Plaintiff in Ad-Seg., Plaintiff argues that because a dispute of fact exists as to the real reason defendant was placing Plaintiff in Ad-Seg, qualified immunity will not allow her to escape liability at this juncture.
As discussed above, triable issues of fact exist as to whether Defendant recommended Plaintiff for placement in Ad-Seg, threatened Plaintiff, or attempted to arrange assaults against Plaintiff as retaliation for filing an inmate appeal or lawsuit. Nonetheless, the state of the law in 2010, when the alleged constitutional violations took place, was well established and sufficient to give defendant fair warning that she could not retaliate against an inmate for filing an appeal or lawsuit. As early as 1995, "the prohibition against retaliatory punishment [was] clearly established law in the Ninth Circuit for qualified immunity purposes."
The court finds, based on the record before it, that Plaintiff exhausted his available administrative remedies for his retaliation claim before filing suit, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). As for the retaliation claim itself, the court finds that genuine factual disputes exist as to whether Defendant took any adverse action against Plaintiff because Plaintiff exercised his right to file prison appeals and lawsuits. Further, the court finds that Defendant is not entitled to qualified immunity for her actions. Accordingly, Defendant's motion for summary judgment, filed on April 1, 2016, should be denied.
Therefore, based on the foregoing,
3. Defendant Waddle's request for summary judgment based on qualified immunity, filed on April 1, 2014, be DENIED.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).
IT IS SO ORDERED.