DENNIS L. BECK, Magistrate Judge.
Plaintiff Thomas Goolsby ("Plaintiff") is a California state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on October 25, 2011, and it is now proceeding on Plaintiff's February 2, 2013, First Amended Complaint ("FAC") for retaliation in violation of the First Amendment against Defendants Gentry, Noyce, Eubanks, Tyree, Medrano, Holman, Holland and Steadman.
Defendants filed the instant motion for summary judgment on May 15, 2015. Plaintiff filed his opposition on July 6, 2015, and Defendants filed their reply on October 27, 2015. The motion is ready for decision pursuant to Local Rule 230(1).
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);
Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case.
In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence,
Plaintiff is currently housed at Pelican Bay State Prison. The events at issue occurred while he was incarcerated at the California Correctional Institution ("CCI") in Tehachapi, California.
Plaintiff alleges that Defendants Gentry, Noyce, Eubanks, Tyree and Medrano initiated a validation packet against him on the orders of Defendants Holland and Steadman. Plaintiff alleges that this was done in retaliation for filing appeals and lawsuits against them.
He explains that in June 2010, he was placed in Ad-Seg pending conclusion of an investigation into his gang activities. On August 27, 2010, Defendant Noyce concluded the investigation and found insufficient evidence to validate Plaintiff as an associate of a prison gang. On September 10, 2010, he was released back into the general population.
In December 2010, Plaintiff met with Defendant Holman in preparation for his inmate classification hearing. Defendant Holman told Plaintiff that Defendant Holland "told me to tell you to drop your lawsuits on her or . . . else your [sic] going back to the hole permanently validated." FAC, at 6 (ECF No. 15). Plaintiff did not reply and did not drop his lawsuits.
On February 11, 2011, Plaintiff was placed in Ad-Seg pending validation as an associate of the Nazi Low Rider prison ("NLR") gang. Defendant Eubanks gave him his validation packet and Defendant Tyree had signed his lock-up order. Plaintiff alleges that upon reviewing his packet, the documents in his validation packet were the same as those used by Defendant Noyce to find insufficient evidence six months prior.
On April 11, 2011, Plaintiff alleges that Defendant Eubanks admitted that the only reason that Plaintiff was validated was because of his lawsuits and appeals. He alleges that his placement in segregated housing has made it more difficult to conduct legal work, prosecute litigation and use the law library.
During all relevant times, Plaintiff was incarcerated at CCI.
The term "prison gangs" refers to those gangs that originated in prisons. Eubanks Decl. ¶ 2 (ECF No. 111-6). The California Department of Corrections and Rehabilitation ("CDCR") has determined that gangs and their activities are a threat to the safety and security of prisons and jails, and are a danger to public order and safety. Eubanks Decl. ¶ 2. CDCR's gang management strategy is to identify gang-affiliated inmates, track them, monitor their conduct and take interdiction action. Eubanks Decl. ¶ 2. CDCR's validation process is used to identify gang affiliated inmates.
The NLR are a designated prison gang under section 52070.17.2 of the Department of Operations Manual. The NLR is a White-supremacist prison gang primarily based in southern California, and was originally allied with the Aryan Brotherhood ("AB").
Defendant Eubanks has been an Assistant Institutional Gang Investigator ("IGI") at CCI since 2002. The Investigative Services Unit requires him to track and monitor White gangs, including the AB and NLR, at CCI. Eubanks Decl. ¶ 1. It was his responsibility to collect and document information regarding gang activities and transmit the information to Defendants Gentry or Noyce, the Institutional Gang Investigators. Eubanks Decl. ¶ 5.
On March 19, 2009, Defendant Eubanks was conducting an investigation into prison-gang matters unrelated to Plaintiff. During this investigation, Defendant Eubanks uncovered a handwritten note which was in the possession of a validated NLR inmate. The note identified Plaintiff as being involved in the assault of NLR member "Whitey" David Westley on the orders of NLR member "Hoss" Thomas Williams.
On April 6, 2009, Defendant Eubanks authored a Confidential Memo addressed to Defendant Gentry. The memo summarized the findings of the March 19, 2009, investigation and contained copies of the note he discovered. Eubanks Decl. ¶ 5. Because some of the information gathered on March 9, 2009, concerned Plaintiff, a copy of Defendant Eubanks' April 6, 2009, memo was placed in Plaintiff's file. Eubanks Decl. ¶ 6. The information referenced in the April 6, 2009, memo was used to validate Plaintiff as an NLR associate. Eubanks Decl. ¶ 6.
On May 15, 2009, Defendant Tyree conducted a search of Plaintiff's personal property as part of an investigation concerning Plaintiff's gang status. Defendant Tyree found an address book in Plaintiff's possession. Tyree Decl. ¶ 2. Defendant Tyree copied Plaintiff's address book, which was investigated and analyzed at a later time. Tyree Decl. ¶ 2. The address book was not analyzed immediately because of "economy of effort." Plaintiff's address book listed dozens of inmates. Each inmate must be identified and then their confidential file must be obtained and studied to determine if the inmate is affiliated with a gang. Analysis of the address book was a labor-intensive effort that was done only after it was certain that other evidence existed sufficient to validate Plaintiff. Tyree Decl. ¶ 2. Plaintiff admits that he had NLR members Pandolfi and Baumgaertel's names, CDCR numbers and addresses in this address book.
On May 15, 2009, Correctional Officer Robinson searched the personal property of "Dago" Samuel Bailey at CCI. Officer Robinson found a note purportedly authored by Plaintiff. He turned the note over to Defendant Tyree for investigation. Tyree Decl. ¶ 4.
In the note, Plaintiff identified himself and questions Bailey about the location of his CDCR-128 G Classification Chrono. He informed Bailey that he is "quite close" to Inmates Gehrke and Allen (both validated NLR members). Plaintiff also questioned Bailey about his status and why he didn't want to be included on the active White Inmate "Roll Call." The note was signed "W/R [with respect], Klumzy." Tyree Decl. ¶ 4. Plaintiff goes by the nickname "Klumzy." Tyree Decl. ¶ 5.
On July 26, 2009, Defendant Tyree authored a Confidential Memo addressed to IGI Lt. Defendant Gentry. The memo summarized the findings of the May 15, 2009, investigation and contained photocopies of the note. Tyree Decl. ¶ 6. The information referenced in the memo was used as evidence to validate Plaintiff as an NLR associate. Tyree Decl. ¶ 7.
On December 18, 2009, Security Squad Officer R. Frye searched the personal property of two validated NLR members (Inmates Gehrke and Allen) and discovered two rosters of White inmates housed in the SHU at CCI-IVB who were in good standing with the NLR. The lists contained the inmates' names, monikers, hometowns and CDCR numbers. Eubanks Decl. ¶ 7.
On January 26, 2010, in accordance with his duties, Defendant Eubanks authored a Confidential Memorandum to Defendant Gentry. The memo summarized the findings of the investigation into the rosters found on December 18, 2009, and contained photocopies of the rosters. Eubanks Decl. ¶ 9. The information referenced in the January 26, 2010, memo was used as evidence to validate Plaintiff as an NLR associate. Eubanks Decl. ¶ 11. Plaintiff admits that Inmates Gehrke and Allen had his name, prison number, hometown, and nickname "Klumzy" on a list in their cell.
On May 10, 2010, Assistant IGI Hopkins conducted a debriefing interview with an inmate wishing to disassociate from the NLR gang. During the debriefing, the inmate identified Plaintiff as being a courier of notes on behalf of the NLR and being involved in the assault of validated NLR member "Whitey" David Westley. The inmate told Hopkins that the assault on Westley was at the direction of validated NLR member "Hoss" Thomas Williams. Hopkins Decl. ¶ 3. The information provided by the inmate was considered reliable and met the criteria of Title 15, section 3321(c)(1)(2)(3). Hopkins Decl. ¶ 5.
On May 25, 2010, Hopkins authored a Confidential Memo summarizing the debriefing of the inmate on May 6, 2010. Hopkins Decl. ¶ 4. Officer Hopkins does not work at CCI, and he conducted the debriefing at Corcoran State Prison. Chief Deputy Warden Defendant Holland and Associate Warden Defendant Steadman of CCI were not involved with Hopkins' debriefing interview or his May 25, 2010, Confidential Memo. Hopkins Decl. ¶ 6. Hopkins was not instructed by Defendants Holland or Steadman to investigate Plaintiff or prepare a Confidential Memo to support his NLR validation. Hopkins Decl. ¶ 6; Holland Decl. ¶ 2; Steadman Decl. ¶ 2.
Because Hopkins' May 25, 2010, Confidential Memo referenced Plaintiff, a copy was placed in his Central File. Hopkins Decl. ¶ 5. The memo mentions over seventy inmates, many of whom were not housed at Corcoran, where the briefing took place. It could therefore take as long as six months for the memo to be placed in an inmate's Confidential File.
On July 1, 2010, the ICC informed IGI Lt. Defendant Noyce that Plaintiff was placed in Ag-Seg after he was caught checking the 128-G Chronos of other inmates. The ICC asked Defendant Noyce if checking other inmates' 128-G Chronos indicated that Plaintiff was participating in gang-activity such that the safety and security of the institution required that he remain in Ad-Seg or be placed in the SHU.
In responding to the ICC, Defendant Noyce considered whether Plaintiff should be retained in Ad-Seg pending submission of a gang validation package at that time. Therefore, Defendant Noyce reviewed Plaintiff's C-file to determine if there were enough source items to support gang validation. Noyce Decl. ¶ 6. Defendant Noyce's review on August 27, 2010, was not a gang validation packet review. No validation packet had been prepared. Rather, he was simply responding to the ICC's inquiry.
Defendant Noyce does not recall which documents he reviewed before drafting the August 31, 2010, memo, nor can it be ascertained from the record which documents were in Plaintiff's file when he conducted the review.
Defendant Noyce concluded that there were not enough source items at the time he wrote his memo.
Although Title 15 only requires three source items, it is Defendant Noyce's and Eubanks' practice to obtain more than three to ensure that validation will be approved should one or more items be rejected by the Office of Correctional Safety.
Defendant Noyce did not conclude that Plaintiff's C-file contained unreliable evidence or that the Confidential Memos were deficient in any way.
Plaintiff was released from the IV-A SHU on September 10, 2010. Eubanks Decl. ¶ 19.
On October 11, 2010, Defendant Eubanks conducted a debriefing of a validated gang member regarding his request for Sensitive Needs Yard placement. The inmate stated that prior to Plaintiff's release from the IV-A SHU, Plaintiff was in control of 8 Building in IV-A SHU on behalf of a validated AB leader.
On October 14, 2010, an outgoing letter authored by Plaintiff was reviewed. At the time, Plaintiff was housed in the general population. Defendant Eubanks suspected that the letter was coded and sent it to the Cryptanalysis & Racketeering Records Unit of the FBI in Quantico, Virginia. Plaintiff's letter was decoded by the FBI and contained business related to the AB. Eubanks Decl. ¶ 22.
On November 28, 2010, Defendant Eubanks wrote a Confidential Memo to Defendant Noyce summarizing the information gained in decoding Plaintiff's October 14, 2010, letter. Eubanks Decl. ¶ 23. This memo was not used to validate Plaintiff as an NLR associate. However, the letter was further indication that Plaintiff was associating with White prison gangs and that the investigation should continue.
On January 13, 2011, Defendant Eubanks conducted an interview with Plaintiff regarding his current gang status. Plaintiff admitted to being a member of "The Chosen Folk" (TCF) Skinhead disruptive group. Plaintiff also stated that he has been a member of TCF for five years. Pictures were taken of Plaintiff's tattoos, which included a large swastika across his stomach, an Iron Cross on his chest and a Celtic Cross on the back of his head with the letters "TCF." Eubanks Decl. ¶ 24.
In January 2011, Assistant IGI Defendant Medrano analyzed Plaintiff's address book and found that it contained the names of two validated members of the NLR prison gang-R. Pandolfi and D. Baumgaertel. Tyree Decl., Ex. A; Eubanks Decl. ¶ 27(e). On February 8, 2011, Defendant Medrano wrote a non-confidential CDCR 128-B Chrono memorializing his findings. This was used as evidence to validate Plaintiff. Tyree Decl., Ex. A; Eubanks Decl. ¶ 27(e).
On February 11, 2011, Defendant Eubanks completed the investigation of Plaintiff's NLR gang status and assembled a gang-validation packet to be sent to the Office of Correctional Safety.
Investigations supporting gang validations may take years to complete. In Plaintiff's case, the investigation was ongoing since April 2009. Validation was complex because he was associating with members of the AB as well as the NLR, and some source items evidenced association with both gangs. Eubanks Decl. ¶ 28.
On February 14, 2011, Defendant Noyce approved Defendant Eubanks' chrono to validate Plaintiff as an associate of the NLR prison gang. Defendant Noyce independently reviewed the evidence and confirmed that the source items used in the validation met the requirements of Title 15. Noyce Decl. ¶ 10. After Defendant Noyce's review, the validation package was sent to the Office of Correctional Safety, where the evidence was again scrutinized and weighed. Noyce Decl. ¶ 10; Eubanks Decl. ¶ 30. The Office of Correctional Safety approved Plaintiff's validation as an associate of the NLR on March 29, 2011. Noyce Dec. ¶ 10.
Plaintiff was validated as an associate of the AB prison gang on May 5, 2011. Noyce Decl. ¶ 12.
Plaintiff alleges that Defendants retaliated against him because of
Plaintiff alleges that Defendant Holland retaliated against him because of
Plaintiff alleges that Defendant Holland retaliated against him because of
Plaintiff alleges that Defendant Holland retaliated against him because of
Defendant Holland chaired an ICC hearing on September 9, 2010. ECF No. 123, at 261.
Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim.
There is no dispute that Plaintiff's lawsuits and appeals were protected conduct, that gang validation is an adverse action, and that such action chilled Plaintiff's First Amendment rights. The parties therefore agree that this analysis focuses on the remaining two elements of Plaintiff's retaliation claim: (1) whether the alleged actions were taken because of Plaintiff's appeals and lawsuits; and (2) whether the action did not reasonably advance a legitimate correctional goal. These issues will be examined in light of the question remaining in this action — whether there were any additional documents, or some other explanation, to support the different results reached in the reviews of August 2010 and February 2011.
Additionally, Plaintiff concedes that Defendant Gentry did not take any adverse action against him and that summary judgment should be granted in his favor. ECF No. 123, at 20.
To raise a triable issue as to motive, Plaintiff must offer evidence that Defendants knew about the protected conduct.
Defendants argue that Plaintiff cannot show that Defendants Holland and Steadman, whom he contends ordered the retaliatory validation, knew of his lawsuits and/or appeals.
The undisputed facts show that Plaintiff filed numerous appeals in 2009 and 2010, many of which were answered by Defendants Holland and/or Steadman. Plaintiff also filed the following lawsuits: (1)
The parties spend a great deal of time disputing whether Defendants Holland and Steadman knew of these appeals and actions at any time prior to Plaintiff's February 2011 validation. Defendants contend that they do not keep track of inmate appeals and were not aware of Plaintiff's appeal history when he was validated. Holland Decl. ¶ 4; Steadman Decl. ¶ 4. They also contend that they were not aware of Plaintiff's lawsuits at the time he was validated. Hollman Decl. ¶ 3; Steadman Decl. ¶ 3.
Plaintiff, on the other hand, contends that Defendant Holland demonstrated that she knew about his appeals and lawsuits during the ICC meeting that she chaired on September 9, 2010. Plaintiff alleges that during the hearing, Defendant Holland became upset and angry, and threatened him. She made comments such as, "Uhh. I hate jailhouse lawyers. When are you going to stop? You're always complaining about everything-yard, medical. Every week I have to answer one of your appeals. I am sick of it. You need to knock this shit off or I am going to make you stop." Pl.'s Decl. ¶ 8 (ECF No. 123, at 84).
Plaintiff also alleges that on December 1, 2010, his counselor, Defendant Holman, passed on a message from Defendant Holland threatening Plaintiff to drop his lawsuits or else he'd be validated. Pl.'s Decl. ¶ 9 (ECF No. 123, at 84). Also on December 1, 2010, Plaintiff states that he appeared at a hearing chaired by Captain Lundy. According to Plaintiff, Captain Lundy also passed on Defendant Hollman's threat. Pl.'s Decl. ¶ 10 (ECF No. 123, at 85).
Finally, Plaintiff contends that Defendant Eubanks, in January 2011, told Plaintiff that Defendant Hollman told him to validate Plaintiff as an NLR associate. Pl.'s Decl. ¶ 11(ECF No. 123, at 85). Plaintiff also alleges that Defendant Eubanks confirmed the retaliatory validation in April 2011, stating that Plaintiff "pissed all the AW's off with [his] 602s and lawsuits." Pl.'s Decl. ¶ 12 (ECF No. 123, at 85-86).
Defendants dispute Plaintiff's accounts, contending that Defendant Holland did not take part in the investigations or validation, and did not direct anyone to validate him. Holland Decl. ¶ 2.
Taking Plaintiff's evidence in the light most favorable to him, he has presented direct evidence that Defendant Holland knew of his lawsuits and appeals and threatened him with retaliation if he did not stop complaining.
Defendants argue that the factual context makes Plaintiff's claims "implausible," and that in such circumstances, Plaintiff must present "more persuasive evidence than would otherwise be necessary in order to show that there is a genuine issue for trial."
The Court recognizes that Plaintiff's only evidence of retaliation comes from his own testimony. However, given the deference that must be afforded to pro se litigants and the requirement that the Court draw all justifiable inferences in Plaintiff's favor, the Court is hesitant to impose additional burdens under a theory that his testimony is implausible.
The existence of the above disputed facts, however, does not end the inquiry. Even assuming, as the Court must, that Plaintiff's facts are true, Plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains.
There is no dispute that prisons have a legitimate interest in curtailing prison gang activity, and in this regard, Defendants argue that "the evidence supported his validation to such a degree that even if Defendants had a bad motive to validate Goolsby, he would have been validated anyway." ECF No. 111-1, at 30.
Indeed, it is undisputed that the investigation into Plaintiff's NLR affiliation began in March 2009, during an investigation unrelated to Plaintiff. Evidence gathered from March 2009 through January 2011 tied Plaintiff to the NLR. The Court need not list the evidence piece by piece because Plaintiff admits that there were sufficient source items to validate him as an associate of the NLR. ECF No. 123, at 28.
To avoid summary judgment, Plaintiff argues that his February 2011 validation was based on the same documents that Defendant Noyce reviewed in August 2010, when he found insufficient evidence to support a validation. However, it is undisputed that Defendant Noyce does not recall what documents he reviewed, and that it cannot be ascertained from the record which documents were in his file at the time of the August 2010 review.
While the parties dispute what documents were in Plaintiff's file during Defendant Noyce's review, there is at least one document that could not have been in the file at the time because it did not exist as of August 2010. Although Plaintiff's address book was originally confiscated in May 2009, it was not fully analyzed until January 2011 because it was a labor-intensive review that was not undertaken until it became certain that there was other evidence to support a validation. Plaintiff disputes this, arguing that the address book was in his file at the time of the August 2010 review and that the January 2011 analysis was performed to carry out the alleged retaliation. Plaintiff's argument, however, is simply speculation.
The speculative nature of Plaintiff's contention is apparent given the events after the September 2010 hearing. On October 11, 2010, Defendant Eubanks received information from another inmate suggesting that Plaintiff was involved with the AB, another White-supremacist gang. The information was not used to validate Plaintiff, but it did suggest that the investigation should continue. Similarly, in October 14, 2010, Defendant Eubanks sent a letter from Plaintiff to the FBI for decoding. The letter contained business related to the AB, and although it was not used to validate Plaintiff, it suggested that the investigation should continue. The NLR was originally aligned with the AB, and it is common for White inmates to be involved with more than one White-supremacist gang.
Plaintiff also argues that Defendant Noyce's August 2010 review completed any investigation into his gang affiliation. It is undisputed, however, that Defendant Noyce's review was performed in the context of responding to the ICC's inquiry about inmates checking other inmate's chronos, and the review did not end the inquiry. As noted above, it is undisputed that further information arose after September 2010, and Defendant Noyce's memo shows that he contemplated such circumstances as warranting further investigation.
To the extent that Plaintiff argues that Defendant Noyce's August 2010 finding somehow invalidated the February 2011 validation, he is incorrect. The Court has previously determined that Defendant Noyce's August 2010 conclusion did not invalidate the subsequent validation, or prove that it was a "sham." ECF No. 85, at 8.
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Defendants are entitled to summary judgment on the retaliation claim.
The Court finds that Defendants' motion for summary judgment should be GRANTED.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies may be filed within fourteen (14) days of service of objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.
