ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a former state prisoner
Currently pending are the parties' cross-motions for summary judgment.
This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 302(c), and Local General Order No. 262. For the reasons that follow, this court recommends that plaintiff's motion for summary judgment be denied, and defendant's motion for summary judgment be granted.
Summary judgment is appropriate when the moving party "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). Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact."
When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case."
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
The opposing party must demonstrate that the fact in contention is material,
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."
In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party."
In applying these rules, district courts must "construe liberally motion papers and pleadings filed by pro se inmates and ... avoid applying summary judgment rules strictly."
Unless otherwise noted, the following facts are undisputed by the parties
• At all times relevant to this action, plaintiff Anthony Barron was a prisoner in the custody of CDCR at California State Prison-Solano (CSP-SOL).
• At all times relevant to this action, defendant was employed by CDCR as a Security & Investigations Correctional Officer in the Institutional Gang Investigation (IGI) Unit at CSP-SOL. Defendant Whitfield's duties included gathering and documenting information pertinent to suspected inmate gang involvement, including interviewing suspected gang members and associates. Whitfield Decl., ¶¶ 2, 5, 9.
• Prison gangs are a threat to the security of CDCR correctional institutions.
• A prisoner's tattoos may be relied on as source items for validation as a prison gang member or associate, as may conduct that reflects the behavior or business of a gang.
• The IGI had determined that the rules and regulations of the Northern Structure/Nuestra Raza (NS/NR) prison gang include a prohibition on cooperating with gang investigations, and that inmate refusal to answer questions about gang involvement demonstrates compliance with that rule, known as "Bond Number 7." Whitfield Decl., ¶¶ 9, 10.
• On January 10, 2009, plaintiff was placed in administrative segregation (Ad Seg) for contraband surveillance watch (CSW).
• On January 15, 2009, plaintiff appeared before the Institution Classification Committee (ICC) for review of his Ad Seg placement. An officer initially informed plaintiff, while still in his cell on CSW, that he had committee. Plaintiff, who remained in waist and leg restraints, was escorted to the committee room by two officers; he was seated and an officer stood over him.
• The ICC members were seated when plaintiff arrived. The members included the CSP-SOL Warden, an associate warden, a facility captain, a doctor, a Correctional Counselor II [CCII], an Ad Seg sergeant, and defendant Whitfield. Pltf. Depo. at 20:23-4; Whitfield Decl., ¶ 2, Ex. 1.
• Plaintiff described the ICC meeting room as "more like a cubicle that's set up inside the [Ad Seg] building itself." Pltf. Depo. at 21:13-7.
• A committee member informed plaintiff of the reasons for his Ad Seg placement, then the committee acted to retain plaintiff's placement pending completion of his CSW. The committee meeting lasted a total of six or seven minutes. Pltf. Depo. at 23:7-9.
• During the meeting, defendant Whitfield attempted to interview plaintiff about his possible involvement with the Northern Structure/Nuestra Raza (NS/NR) prison gang. This interaction lasted "a minute or two, if that." Pltf. Depo. at 28:4-7.
• Defendant Whitfield memorialized the attempted interview in a CDC 128B Chrono he authored the same day, January 15, 2009, as follows,
• Plaintiff disputes defendant Whitfield's assertion that plaintiff said, "I have no comment."
• When asked at his deposition, "Did you ever say, I am exercising my fifth amendment right?" during his interview with Whitfield, plaintiff answered, "Not that I recall." Pltf. Depo at 28:11-3.
• Plaintiff relies in part on defendant Whitfield's responses to plaintiff's Requests for Admissions to recount the parties' pertinent interaction. Although defendant objected to each of the following requests, and stated that he had no specific recollection, defendant relied on the "Discussion" section of the March 26, 2009 Second Level Review decision addressing plaintiff's relevant appeal to "admit" each of the following matters in discovery,
• Plaintiff also relies on the following facts from the "Discussion" section of plaintiff's appeal on Second Level Review,
• Plaintiff's tattoos were previously photographed by prison officials in 2003 and are presumably retained in plaintiff's central file. Pltf. Depo. at 24:10-25:6.
• Under prison regulations during the relevant period, three source items were needed to validate an inmate as a member or associate of a prison gang; one source item must be a "direct link." Lujan Decl., ¶ 6; see Cal. Code Regs. tit. 15, § 3378.2.
• On September 3, 2009, a gang validation package for plaintiff was received by CDCR's Special Services Unit (SSU) from CSP-SOL IGI Lt. R. Soria. Lujan Decl., ¶ 4, Ex. 1. Six source items were included,
• Defendant Whitfield contends that he was not involved in the preparation, submission, or review of plaintiff's gang validation package and, as an S&I Officer, was not authorized to prepare, submit, or review gang validation packages. Whitfield Decl., ¶ 11. The decision whether to include defendant Whitfield's January 15, 2009 CDC 128B Chrono in plaintiff's validation package was made by IGI Lt. Soria. The SSU made the final determination that all of the items in plaintiff's validation package met validation requirements. Lujan Decl., ¶ 9.
• Plaintiff disputes defendant's assertion that he "was not involved in the preparation, submission and/or review of my validation package" on the ground that defendant intended that the chrono he prepared be used in validating plaintiff.
• On October 23, 2009, Plaintiff was validated as an Associate of the Northern Structure prison gang and transferred to the institution's Security Housing Unit (SHU) for an indeterminate term. Lujan Decl., ¶ 5, Ex. 1. The conditions of the SHU are significantly more restrictive than general population housing.
• Although the January 15, 2009 CDC 128B Chrono authored by defendant Whitfield was included in plaintiff's validation package, even if it were not plaintiff still would have been validated because only three sources items were required and the "direct link" requirement was met by another source item. Lujan Decl., ¶ 10, Ex. 1.
• Plaintiff asserts that each of the source items underlying his validation were illegitimate and "insufficient."
Plaintiff contends that the Fifth Amendment guaranteed his right to remain silent under the circumstances; defendant prepared the subject chrono in retaliation for plaintiff's exercise of his constitutional rights; and defendant's preparation of the chrono was not supported by a legitimate penological goal. Defendant contends that no Fifth Amendment right attached to the questioning of plaintiff; a legitimate penological goal justified defendant's writing of the chrono; and, even assuming plaintiff had a Fifth Amendment right to remain silent, plaintiff has failed to demonstrate that defendant's preparation of the chrono was motivated by plaintiff's exercise of his constitutional rights. Alternatively, defendant contends that he is entitled to qualified immunity.
"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal."
The alleged adverse action need not itself be an independent constitutional violation.
To sustain a retaliation claim, plaintiff must plead facts that support a reasonable inference that plaintiff's exercise of his constitutionally protected rights was the "substantial" or "motivating" factor behind the defendant's challenged conduct.
For the reasons set forth below, the court finds that the evidence fails to support a reasonable inference that defendant's preparation of the subject chrono was motivated by plaintiff's exercise of his constitutional rights. Rather, the evidence demonstrates that defendant reasonably construed plaintiff's silence as behavior consistent with the rules and regulations of the Northern Structure/Nuestra Raza prison gang, and his documentation of this assessment advanced a legitimate penological goal.
In the following discussion, the court initially addresses the evidence that supports plaintiff's retaliation claim, then turns to the remaining elements of the claim that are unsupported by the evidence.
The parties do not dispute that defendant's challenged conduct was an "adverse action" supporting the first element of plaintiff's retaliation claim. Defendant's took "adverse action" by authoring of the CDC 128B Chrono on January 15, 2009 immediately following his interaction with plaintiff at the ICC hearing, in which he found that plaintiff's refusal to be interviewed regarding his possible involvement with the Northern Structure/Nuestra Raza prison gang was itself evidence that plaintiff was abiding by the gang's rules of silence, and should be considered as one source item in support of plaintiff's validation as a member of the gang. Subsequently, this chrono became part of the evidentiary record relied on to validate plaintiff as an Associate of the Northern Structure prison gang.
Plaintiff contends that his refusal to answer defendant's questions at the ICC hearing reflected the exercise of his Fifth Amendment privilege against self-incrimination/right to remain silent, citing
Defendant vigorously maintains that no constitutional right attached to plaintiff's conduct at the ICC hearing, principally on the ground that plaintiff was not being interrogated about, or charged with, a crime. However, because this court finds that plaintiff's retaliation claim is unsupported in other ways, the undersigned concludes that the nature of plaintiff's conduct should not be revisited.
Accordingly, for purposes of the instant motions, this court applies the "law of the case" doctrine and accepts as settled the determination that, under the circumstances presented here, plaintiff's refusal to answer defendant's questions or have his tattoos photographed at the ICC hearing reflected the exercise of his Fifth Amendment right to remain silent.
Ninth Circuit case law requires the chilling of First Amendment rights to support a prisoner retaliation claim.
"[T]he proper First Amendment inquiry asks whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities."
Defendant does not directly address whether the evidence satisfies this element of plaintiff's retaliation claim. This absence of argument, together with plaintiff's demonstrated harm, supports the finding that this element is undisputed.
To sustain a retaliation claim, plaintiff must introduce evidence demonstrating that the adverse action taken by defendant "did not reasonably advance a legitimate correctional goal."
Plaintiff's concession that the identification and control of prison gang activity is a legitimate correctional goal of CDCR and its employees supports a finding that defendant's authoring of the subject chrono advanced a legitimate penological goal. Plaintiff's efforts to refute this finding are premised on his allegations concerning defendant's motivation for authoring the chrono, not on the ground that the chrono lacked a legitimate correctional objective. Therefore, the court finds this element undisputed in defendant's favor.
The remaining inquiry is whether plaintiff has submitted evidence demonstrating that the exercise of his constitutional rights, rather than a legitimate penological objective, was the primary or substantial motivation for defendant's preparation of the subject chrono. Plaintiff contends that defendant prepared the subject chrono "because of" plaintiff's exercise of his constitutional right to remain silent. Defendant contends that he prepared the chrono "because of" plaintiff's adherence to Northern Structure prison gang rules of silence.
To survive summary judgment on a retaliation claim, plaintiff must present evidence that supports a reasonable inference that plaintiff's exercise of his constitutionally protected rights was the "substantial" or "motivating" factor behind the defendant's challenged conduct.
"To raise a triable issue as to motive, [plaintiff] must offer `either direct evidence of retaliatory motive or at least one of three general types of circumstantial evidence [of that motive].'"
Applying this analysis, the court finds no direct evidence of retaliatory motive in this case. The only circumstantial evidence supporting an inference of retaliatory motive is the proximity in time between plaintiff's protected conduct and defendant's alleged retaliation. Specifically, defendant authored the challenged 128 B Chrono on the same day that plaintiff exercised his right to remain silent.
Plaintiff has offered no evidence of the second type of relevant circumstance, defendant's expressed opposition to plaintiff's protected conduct. On the contrary, the record demonstrates that defendant expressly acknowledged to plaintiff at the ICC hearing that he had the right to refuse photographs. Although defendant informed plaintiff that his silence would be counted as a validation point because consistent with the rules of the Northern Structure/Nuestra Raza prison gang, this consequence was required by prison regulations and defendant's professional responsibilities. Defendant did not express opposition to plaintiff's silence per se, but rather informed plaintiff that his silence evidenced gang activity that defendant was required to document. Plaintiff has submitted no evidence supporting a contrary inference.
Nor has plaintiff identified any circumstances supporting an inference that defendant's asserted reason for his adverse action was pretextual. Plaintiff's arguments on this point rest entirely on conjecture.
Accordingly, the court finds that the circumstantial evidence of retaliatory motive reflected in the timing of defendant's challenged conduct is both objectively weak and outweighed by (1) the absence of any evidence that defendant opposed plaintiff's conduct, and (2) the existence of regulations and investigatory practices of general application that directed defendant to take the challenged adverse action. On this basis, the court finds that plaintiff has failed to support the causation element of his retaliation claim.
In summary, the court finds that three of the five elements of plaintiff's retaliation claim are undisputed by the parties and/or supported by the evidence: (1) plaintiff engaged in protected conduct, (2) after which defendant took the adverse action of preparing the subject chrono, and (3) this adverse action chilled the further exercise of plaintiff's First Amendment rights. However, the court finds that the evidence fails to support a reasonable inference that defendant's action was motivated by plaintiff's protected conduct or failed to advance a legitimate correctional goal. In the absence of evidence supporting a reasonable inference in favor of plaintiff on each of the five elements of his retaliation claim, summary judgment must be granted in favor of defendant.
Alternatively, defendant seeks summary judgment based on qualified immunity. The qualified immunity analysis involves two inquiries: whether the facts alleged by plaintiff establish a constitutional violation, and whether the right at issue was clearly established at that time.
For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
