KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, incarcerated at the California Medical Facility ("CMF"), in Vacaville, California,
For the reasons that follow, the court recommends that defendants' motion for summary judgment be granted in part, and denied in part, and that this action proceed against defendants Carroll and Sisto on plaintiff's First Amendment Free Exercise and Fourteenth Amendment Equal Protection claims; and against defendants J. Johnson, Fowler, Jackura, San Nicholas and Kesterson on plaintiff's First Amendment retaliation and conspiracy claims. The court recommends that defendants' motion for summary judgment should be granted on plaintiff's Eighth Amendment sexual harassment claim against defendant J. Johnson; on plaintiff's Eighth Amendment excessive force claim against defendant Fowler; and on plaintiff's First Amendment retaliation and conspiracy claims against defendants Cervantes and Sisto.
This action proceeds on plaintiff's Amended Complaint ("AC" or "complaint"), filed April 6, 2009. (Dkt. No. 14.) Pursuant to initial screening under 28 U.S.C. § 1915A, the court found that the complaint stated potentially cognizable claims against eight named defendants, but not against five other named defendants. The court granted plaintiff leave to file a further amended complaint in an effort to state cognizable claims against all of the named defendants, or to proceed on his Amended Complaint against the eight identified defendants while consenting to dismissal of the remaining five defendants. (Dkt. No. 17.) Plaintiff chose to proceed on his Amended Complaint, thus agreeing to the dismissal of defendants Medinna, Abella, Fernandez, Ramirez and Fry. (Dkt. Nos. 18, 19.)
Thereafter, the remaining defendants — Carroll, Sisto, Cervantes, J. Johnson, Fowler, Jackura, San Nicholas and Kesterson — chose not to file a motion to dismiss, but instead filed an answer to the complaint. (Dkt. No. 21.) After setting a discovery and motion schedule in the case (Dkt. No. 24), subsequently extended pursuant to approval of the parties' stipulations (Dkt. Nos. 29-31), the undersigned, on March 2, 2011, granted plaintiff's motion for appointment of counsel (Dkt. Nos. 25, 26). After the close of discovery, defendants timely filed the instant motion for summary judgment (Dkt. No. 33); plaintiff timely filed an opposition (Dkt. No. 39); defendants filed a reply (Dkt. No. 40).
The complaint challenges three relatively distinct series of events that allegedly occurred on or about January 14, 2007, February 11, 2007, and April 26, 2007. Given these disparate dates, and the number of defendants, the court initially summarizes plaintiff's factual allegations and legal claims.
Plaintiff states that he is a Muslim who does not eat meat for religious reasons. The complaint alleges that, on January 14, 2007, shortly after plaintiff was transferred to California State Prison-Solano ("CSP-SOL"), Correctional Officer ("CO") Carroll confiscated plaintiff's Religious Diet Card previously issued by Old Folsom State Prison, and that such confiscation was motivated by discrimination against plaintiff's religion. Plaintiff alleges that defendant Sisto, CSP-SOL Warden, ratified Carroll's allegedly discriminatory conduct and, as a result, plaintiff never received a CSP-SOL Religious Diet Card or obtained religious meals while incarcerated at CSP-SOL. Plaintiff alleges that he suffered weight loss, stress, and difficulty sleeping, despite initially attempting to supplement his diet with acceptable food that he purchased from the canteen. On screening, the court found that these allegations stated potentially cognizable claims against defendants Carroll and Sisto, under the First Amendment's Free Exercise Clause, and the Fourteenth Amendment's Equal Protection Clause.
Next, the complaint alleges that, on February 11, 2007, defendant CO J. Johnson
Next, the complaint challenges plaintiff's placement in administrative segregation ("Ad Seg') on April 26, 2007, and his retention there during the next 17 months. The official rationale was premised on CO Jackura's purported discovery, on April 26, 2007, that plaintiff, when previously housed at CSP-SOL ten years before, assaulted CO San Nicholas; and that San Nicholas, upon learning of plaintiff's renewed presence at CSP-SOL, expressed concerns for his safety, and requested that plaintiff be moved to Ad Seg pending plaintiff's transfer to another institution. The court found that these allegations stated potentially cognizable First Amendment retaliation claims against defendants J. Johnson, Fowler, Cervantes, Jackura, San Nicolas, and Kesterson, based on plaintiff's allegations that these defendants conspired to place plaintiff in Ad Seg in retaliation for plaintiff's filing of the administrative grievance against J. Johnson.
The remainder of plaintiff's allegations concerning the hardships he endured while in Ad Seg are not before the court because they were not administratively exhausted or sound in habeas rather than civil rights, but these allegations include: plaintiff was denied a family visit when his father died; that he was allegedly "consistently harassed," including being convicted of three allegedly false rules violations instigated by defendants; that these findings impaired his parole eligibility; and that plaintiff "lost weight, and was suffering as if being tortured, and suffered from depression, and had to see the psychiatrist." (AC at 6-8.)
Defendants move for summary judgment and/or a finding of qualified immunity on each of plaintiff's claims against each defendant.
Summary judgment, in whole or in part (summary adjudication of issues), is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
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 exists.
In the endeavor to establish the existence of such 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 resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed.
On December 6, 2002, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 20.)
Defendants conclude their motion for summary judgment by asserting that each defendant is entitled to qualified immunity on each of plaintiff's claims.
"Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."
"`Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was `clearly established' at the time of the challenged conduct.'"
Although the court was once required to answer these questions in order, the Supreme Court has clarified that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory."
In resolving the question of qualified immunity, the court views the facts in the light most favorable to the plaintiff.
The following facts are either undisputed by the parties or, following the court's review of the evidence, are deemed undisputed for purposes of the pending motion. Disputed facts are also noted.
1. CDCR's "Religious Diet Program" is governed by regulations that require an inmate to submit the appropriate application (a CDCR Form 3030 ("Religious Diet Request")) to his institutional chaplain, and obtain written approval thereof; approved applications are to implemented within 30 days after receipt by the chaplain.
2. Plaintiff, who was born in 1972, has been incarcerated under the authority of CDCR since 1993. After three years incarceration at Pelican Bay State Prison, plaintiff was transferred to CSP-SOL on August 27, 1996, and remained there until January 14, 1998, when he was transferred to CSP-Sacramento, and then to Old Folsom State Prison. Plaintiff remained at Old Folsom State Prison until July 17, 2006, when he was transferred to the California Correctional Center in Susanville, California. Plaintiff was returned to CSP-SOL on January 9, 2007, and remained there until September 10, 2008, when he was transferred to Pleasant Valley State Prison. Plaintiff was transferred to CMF on September 24, 2009. (
3. Consistent with his Islamic religious beliefs, plaintiff has not eaten pork since he was seventeen years old, or red meat since September 1992. After his incarceration, plaintiff continued to be a vegetarian in observance of his sincerely-held religious beliefs. From 1992 until 2004, plaintiff observed his religious-based diet by communicating his requests for a vegetarian ("no meat" or "meat substitute") diet
4. Plaintiff first obtained a Religious Diet Card in 2004, when he was housed at Old Folsom State Prison; he received the card approximately one week after submitting his request. When plaintiff was transferred in 2006 to the California Correctional Center ("CCC"),
5. When plaintiff was transferred to CSP-SOL on January 9, 2007, his property was searched, but he was permitted to keep his Old Folsom Religious Diet Card. Using that card, plaintiff was able to obtain meat-substitute meals at CSP-SOL until January 14, 2007, when the card was allegedly confiscated by defendant Carroll.
6. Plaintiff never received a Religious Diet Card from CSP-SOL, and never obtained religious meals while incarcerated at CSP-SOL, despite allegedly submitting a Religious Diet Request to the chaplain within a day or two after plaintiff's January 2007 transfer to CSP-SOL.
a. There is currently no evidence of record to support plaintiff's averment that he submitted an application to obtain a CSP-SOL Religious Diet Card; however, defendants do not identify this matter as a disputed fact and concede, both in their briefing and at the hearing, for purposes of the instant motion only, that plaintiff submitted a Religious Diet Request to the CSP-SOL chaplain shortly after plaintiff's transfer to CSP-SOL.
b. Plaintiff avers, under penalty of perjury, that within a day or two after his transfer to CSP-SOL, he completed a Religious Diet Request and submitted it to the CSP-SOL Imam. Plaintiff further avers that the Imam then informed him that, while the process normally takes thirty days, there was a four-month back log at CSP-SOL, and instructed plaintiff to continue to use his Old Folsom Religious Diet Card. (Pltf. Depo. 26:16-27:10; Pltf. Decl. ¶ 6.)
c. Plaintiff further avers that, when he did not receive a CSP-SOL Religious Diet Card pursuant to his request, he filed an administrative appeal to obtain one, but never received a response; that defendant Cervantes was the Inmate Appeals Coordinator at the time.
7. Plaintiff alleges in his sworn declaration and deposition testimony that, on January 14, 2007, defendant CO Carroll confiscated plaintiff's Old Folsom Religious Diet Card.
a. Plaintiff avers that on January 14, 2007, defendant Carroll requested to see plaintiff's meal card while he was in line to receive a meat-substitute meal tray; that Carroll told plaintiff he couldn't use his Old Folsom card; that plaintiff responded there was a backlog in getting CSP-SOL meal cards, and that a CSP-SOL sergeant had told him he could use the Old Folsom Religious Diet Card.
b. Plaintiff further avers that, after dinner on January 14, 2007, while plaintiff was crossing the yard with another inmate (Willie Pace), defendant Carroll crossed the yard, cut plaintiff off and told plaintiff to surrender his Old Folsom Religious Diet Card. Plaintiff alleges that Carroll stated that he knew Muslims ate meat, and that plaintiff could "take the meat off the tray" or "just don't eat," or "eat it, because all you Muslims be faking it anyway." (Pltf. Decl. at 2, ¶ 8; Pltf. Depo. 24:15-25:20.) Plaintiff avers that "[t]he conversation went back and forth for about five minutes, [and] officer Carrol (sic) got more disrespectful making several bias comments toward Muslims." (Pltf. Decl. at 2, ¶ 8.) Plaintiff states that he asked to speak with a sergeant, but Carroll refused, and confiscated plaintiff's Old Folsom Religious Diet Card.
c. Plaintiff further avers that inmate Willie Pace was present throughout plaintiff's interaction with defendant Carroll. (
8. Defendant Carroll avers, in his sworn answers to interrogatories, that he has no recollection of asking plaintiff to see his dietary card on January 14, 2007, and no recollection of confiscating plaintiff's Old Folsom Religious Diet Card; moreover, defendant Carroll has no recollection of any interaction with plaintiff on or about January 14, 2007.
9. Plaintiff avers that he is opposed to receiving meal trays that contain meat, and then removing the meat, because he believes that even the temporary presence of meat contaminates the rest of his food, and thus violates plaintiff's religious beliefs and practices. Because of this belief, after January 14, 2007, plaintiff purchased meals from the canteen rather than receive meat trays; however, he had limited funds for such purchases. On April 26, 2007, plaintiff was moved to Ad Seg, where he received regular meals without meat ever being placed on his tray, but without a meat substitute. Plaintiff avers that he lost weight (he went from 170 to 157 pounds), felt stressed and had difficulty sleeping.
10. Plaintiff states that, on two occasions between January 14, 2007, and April 26, 2007, he attempted to obtain a meat-substitute meal by waiting in the line designated for Religious Diet Card holders, but was turned away; there were approximately 15 or 20 other inmates in line for religious meals. Plaintiff's Old Folsom Religious Diet Card did not include a picture of plaintiff, while the CSP-SOL-issued Religious Diet Cards did include inmate pictures. Plaintiff testified that, in his 19 years in prison, he knew of no inmate forging a document to obtain a special diet.
11. Plaintiff avers, supported by the record, that he filed and exhausted an administrative appeal challenging defendant Carroll's alleged confiscation of plaintiff's Old Folsom Religious Diet Card, and defendant Carroll's allegedly discriminatory statements to plaintiff, wherein plaintiff alleged violations of his First, Eighth and Fourteenth Amendment rights. (Log No. CSP-S-07-00273;
a. The alleged facts set forth in plaintiff's administrative grievance include the further allegations that Carroll "actually interfered with another officer who had the card and was dealing with the situation;" that Carroll "walked up-on (sic) the conversation, asked to see the card, then took over the conversation and situation displaying a discriminatory disposition toward Islam thereforth (sic) his actions [were] capricious and vindictive and [were] done for no other purpose but to impinge upon appellant's practise (sic) of his religion and spiritual belief." (Dkt. No. 39-7 at 5.) Pursuant to this administrative grievance, plaintiff sought the freedom to practice his religious belief that he should eat no meat, while still obtaining the daily amount of calories recommended by federal nutritional standards; that plaintiff be given a pass permitting him to obtain meat-substitute trays pending receipt of his new Religious Diet Card; that plaintiff be provided with a copy of the rule allegedly supporting Carroll's confiscation of plaintiff's Old Folsom Religious Diet Card; that the appeal be construed as a citizen's complaint against Carroll; and that there be no retaliation or reprisal against plaintiff for filing the grievance. (
b. This appeal was partially granted at the First and Second Level Reviews. Pursuant to the First Level Review, plaintiff was interviewed by Correctional Lt. Parks, who reportedly provided plaintiff with a CDCR 3030 Religious Diet Request form and explained the process for submitting the application. Plaintiff was informed that his card was confiscated because "there is no standard card used by the Department . . . and therefore staff are not able to verify the validity of each card that [is] issued from other institutions. . . ." (Dkt. No. 39-7 at 6.) At the Second Level Review, issued on March 8, 2007, by defendant Sisto, plaintiff was again informed of the procedure for obtaining a Religious Diet Card, and informed that "Some Muslims eat meat. If you have not received your dietary card, you can eat the meal that is issued to you and eliminate the meat;" and ruled that the appeal would not be logged as a citizens' complaint because "it was properly characterized as [a] religious program issue. . . ." (
c. At the Director's Level Review, issued on July 2, 2007, CSP-SOL Appeals Coordinator Grannis denied the appeal on the following grounds (
12. In answers to interrogatories, defendant Warden Sisto made the following sworn statements:
a. During the relevant period, an inmate at CSP-SOL "would generally not have been able to use a religious diet card issued at a different institution because the [CDCR] did not have a standard religious diet card. It was impractical to verify the authenticity of a card issued at a different institution and there were frequent attempts by inmates to forge and otherwise tamper with religious diet cards." (Sisto's Answ. to Amd. Interr. No. 2.)
b. During the relevant period, "it was the standard practice to confiscate an inmate's religious diet card issued at another institution when he arrived at [CSP-SOL]. The purpose for this was that there was no standard card issued by every institution. It was therefore impossible to confirm the authenticity of a religious diet card issued at another institution. Inmates without a genuine need for a religious diet may attempt to forge or otherwise tamper with religious diet cards from other institutions." (Sisto's Answ. to Amd. Interr. No. 3.)
c. During the relevant period, "inmates arriving [at CSP-SOL] from other institutions were not issued temporary cards concerning religious diets. . . . The department policies did not provide for the provision of temporary cards while the inmate completed the process for obtaining a religious diet card. (Sisto's Answ. to Amd. Interr. No. 4.)
13. Sergeant Fowler, a defendant in this action based on other allegations, made the following pertinent statements in his October 27, 2011 deposition testimony. (
a. Defendant Fowler testified that Religious Diet Cards were confiscated at CSP-SOL only if they were forged; he was not aware of any cards being confiscated because issued by another CDCR facility. In response to questioning by plaintiff's counsel, Fowler testified (Fowler Depo. 17:5-18):
b. Defendant Fowler testified that the use of forged Religious Diet Cards is "[v]ery common," but that Fowler had confiscated only five or six cards in his ten years working for CDCR, and estimated that the last time he or another officer confiscated a forged diet card was five years before. (Fowler Depo. 17:19-24; 18:17-23.)
c. Defendant Fowler testified that "[t]he chaplain and the supervising cook" are in charge of the Religious Diet Card program; that the officer and cook assess the validity of cards; and that, if a card wasn't valid, "the officer who supervises the steam line and/or the cook would just confiscate it." (
d. Defendant Fowler testified that there is no training for correctional officers relative to the Religious Diet Card program; the only training is for "[t]he inmates that participate in the program and the cooks and the chaplains that give it. . . ." (
e. Defendant Fowler testified that he never heard a correctional officer say, or discerned a sentiment among officers that, Religious Diet Cards "are just a way for inmates to get this better food[.]" (
14. After his transfer to Pleasant Valley State Prison ("PVSP"), on September 10, 2008, plaintiff received a Religious Diet Card within an undisclosed period of time. Plaintiff testified at his deposition, on August 30, 2011, that his PVSP Religious Diet Card was thereafter honored at CMF, where plaintiff was transferred on September 24, 2009, and continues to be honored at CMF.
15. Defendant J. Johnson is a correctional officer at CSP-SOL, who has been employed with CDCR since 2006. On February 11, 2007, in the "strip-out" room adjacent to the visiting room, J. Johnson conducted an unclothed body search of plaintiff. No other inmates were present during J. Johnson's search of plaintiff, but one other staff member was present, identified by plaintiff as Office Price. (Pltf. Depo. 39:3, 12.)
16. Under departmental policy, inmates leaving the prison's visiting area are subject to unclothed body searches. The unclothed body search includes, among other things, asking the inmate to turn around, squat, pull his buttocks apart, and cough. The use of a flashlight is permitted during these searches to aid officers in determining whether an inmate may have hidden contraband within a body crevice. It is a concern of custody staff that inmates may bring contraband into the prison after meeting with friends and family.
17. The facts of the search are disputed. Plaintiff makes the following allegations in his complaint (Dkt. No. 14 at 4):
18. Defendant J. Johnson testified at his deposition that, due to plaintiff's refusal to comply with the routine procedures of the search, defendant had to issue several commands to plaintiff to comply. J. Johnson testified that plaintiff became very animated, and became verbally volatile and abusive toward defendant during the final part of the search, calling defendant names and appearing angry. J. Johnson testified that he had to ask plaintiff "to squat and cough multiple times" because plaintiff would not do so when asked. J. Johnson has no recollection of shining a flashlight on plaintiff's buttocks during this search. Defendant J. Johnson testified that he was not sexually aroused during his search of plaintiff. (J. Johnson Depo. 37:1-40:25; J. Johnson Answ. to Amd. Interr. Nos. 3-5.)
19. What transpired next is also disputed. J. Johnson testified that plaintiff refused orders to leave the search area, so J. Johnson placed plaintiff in handcuffs and escorted him to the Facility 3 program office where, states defendant, he "counseled the plaintiff on the need to comply with verbal orders during the unclothed body search so that the plaintiff could be processed through quickly. [I] then returned to [my] post." (J. Johnson Answ. to Amd. Interr. No. 8.) Defendant avers that, thereafter, "he has no recollection of speaking with anyone about his interactions with the plaintiff on or about February 11, 2007, at any time prior to the initiation of this lawsuit." (
20. Plaintiff testified that, after defendant J. Johnson handcuffed plaintiff, he placed plaintiff in a holding cage and removed the handcuffs. Plaintiff stated that J. Johnson returned fifteen minutes later and escorted plaintiff, unhandcuffed, to the Facility 3 Program Office ("center complex"). Plaintiff testified that in the conference room were COs Ramirez, Abella and Medina, Sergeants Fowler and Fernandez, an unnamed Sergeant, and defendant J. Johnson. Plaintiff testified that J. Johnson took off his glasses, put on black gloves, and asked plaintiff, "What [do you] want to do, what's up, [you] got a big mouth, and so forth," as he stepped in front of plaintiff with his fists balled. Plaintiff states that he and J. Johnson exchanged several comments, that J. Johnson called plaintiff a fool and asked him what he was going to do, that plaintiff called J. Johnson a fool but said, "I'm not going to do nothing." "After about five or ten minutes of this Sgt. Fowler intervened and told officer Ramirez to go search my property and told him, "you know what to do," and told J. Johnson to step out. (Pltf. Depo. 43:22-48:11; Pltf. Decl. ¶¶ 15-18.)
21. Although plaintiff testified that defendant J. Johnson made threatening gestures toward plaintiff, and allegedly sought to provoke him into a fight, plaintiff stated that J. Johnson made no physical contact with plaintiff. (Pltf. Depo. 47:15-16.)
22. Defendant Fowler is a correctional sergeant employed at CSP-SOL. Defendant Fowler avers under penalty of perjury that he has no recollection of being in the Facility 3 Program Office on February 11, 2007, when plaintiff was allegedly brought there by defendant J. Johnson. Defendant Fowler states that he has no recollection of any of the events that plaintiff alleges took place that day. (
23. Pursuant to his deposition testimony and sworn declaration, plaintiff alleges that, after J. Johnson left the conference room, defendant Fowler rushed up on plaintiff, while officers Medinna and Abella held plaintiff against the wall.
a. As set forth in plaintiff's declaration (Pltf. Decl. ¶ 19 (sic)):
(
b. Plaintiff avers that defendant Fowler then told plaintiff "to get out and wait on the bench[;] I had been in the room approximately 30 minutes and as I was waiting on the bench officer Ramirez walk in with my T.V. and Radio. I was then allowed to leave and go back to the building. When I got to my bunk area Ramirez had search[ed] and trash[ed] my personal property. . . . [T]hey refuse[d] to give me back my identification card [so] I was forced to go without receiving my medication, which cause[d] me to not be able to sleep for approximately three days." (Pltf. Decl. ¶ 20.)
c. Plaintiff alleges that, following this incident, defendant Fowler "made it a point at least three or four times . . . to walk directly in front of me forcing me to step out of the way, it got to the point that I would look for him on the yard just to avoid him." (
24. On February 14, 2007, plaintiff signed and submitted an administrative grievance (Log No. CSP-S-07-02026), challenging the alleged sexual harassment by defendant J. Johnson, and the alleged incidents in the conference room, including the confiscation of plaintiff's property, wherein plaintiff noted the presence and alleged conduct of the other officers, but identified only J. Johnson. (Dkt. No. 39-4 at 3-5.)
a. On February 22, 2007, the appeal was returned to plaintiff by Inmate Appeals Coordinator Cervantes, with a notation that the appeal was "incomplete," because "without supporting documentation," specifically, that it failed to identify which of three CSP-SOL correctional officers named "J. Johnson" whom plaintiff referenced, and failed to include a search receipt. (
b. On February 16, 2007, plaintiff wrote a letter to the Internal Affairs Office, describing the alleged February 11, 2007 incidents, without identifying any correctional officers. Plaintiff stated that, as a prisoner, he had been a victim of retaliation and religious discrimination, had his personal property taken by staff, and been in verbal and physical confrontations, but "by far this is the worse of the worse to have the integrity of my manhood aggress upon in such a manner;" plaintiff stated that he was "completely at a lost (sic) of resolution on how to deal with this situation." (Dkt. No. 14 at 22.)
c. On March 4 or 6, 2007, plaintiff wrote a letter to "All Concerned Parties," wherein he asserted that "[t]he appeals coordinator has unreasonably denied to process" plaintiff's appeals, noting in pertinent part that the appeals coordinator could readily identify the correct "J. Johnson," based on the date and location of the challenged incident, or should simply "process the appeal, because the hearing officer as part of the investigation can easily uncover which J. Johnson is being spoke[n] of." (Dkt. No. 39-4 at 9.)
d. On April 17, 2007, plaintiff wrote a letter to the Chief of Inmate Appeals, inquiring about the status of his appeal. (Dkt. No. 14 at 27.)
e. On June 6, 2007, Inmate Appeals Chief Grannis returned plaintiff's submissions, on the ground that plaintiff first needed to exhaust his appeal through the second level before seeking Director's Level Review. (Dkt. No. 39-4 at 8.)
f. On June 8, 2007, Warden Sisto sent plaintiff a letter responsive to plaintiff's "letter addressed to the office of the Inspector General, dated March 4, 2007." (Dkt. No. 14 at 32.) Sisto identified each of plaintiff's concerns, relative to the Religious Diet Program, the alleged sexual misconduct, and the confiscation of plaintiff's property. Sisto generally noted that it was his "expectation that every staff member conduct themselves in a professional manner." (
g. In a decision rendered August 22, 2007, pursuant to a First Level Review of Log No. CSP-S-07-02026, CSP-SOL Associate Warden Brumfield noted that plaintiff had been interviewed by Sergeant Oliver, on August 11, 2007, who explained that defendant J. Johnson's conduct complied with the strip-search procedures following inmate visitations; Brumfield further noted that plaintiff had informed Sergeant Oliver that his property was returned. On these bases, plaintiff's appeal was "granted" at the First Level. (Dkt. No. 39-4 at 4, 13.)
h. On November 17, 2007, a Second Level Review, signed on behalf of defendant Sisto, also "granted" the appeal, on the ground that plaintiff's request for an explanation of the procedures pertaining to unclothed body searches had been provided. The decision found that plaintiff had "failed to provide compelling evidence or facts to substantiate your claim that staff acted in a less than professional manner." (Dkt. No. 14 at 20.) Plaintiff did not further pursue this twice "granted" administrative grievance.
25. Meanwhile, on April 26, 2007, plaintiff was placed in Ad Seg.
26. Defendant Jackura, who has been employed by CDCR since 1995, is a correctional counselor at CSP-SOL, and was plaintiff's assigned counselor during the relevant period. Defendant San Nicholas is a correctional officer at CSP-SOL, employed with CDCR for approximately 24 years. Defendant Kesterson was a correctional lieutenant at CSP-SOL during the relevant period; she is now a correctional captain with CDCR's Out-of-State Correctional Facilities.
27. Under CDCR policy, when an inmate's presence in an institution's general population presents an immediate threat to the safety of the inmate or others, endangers institutional security, or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity, the inmate shall be immediately removed from the general population and placed into Ad Seg.
28. If a staff person at CSP-Solano reports that he is concerned about his safety due to an inmate, that inmate will be automatically placed in Ad Seg.
29. The decision to place an inmate in Ad Seg may be discussed with the sergeant on a facility, but the ultimate decision lies with the lieutenant or above.
30. It is standard CDCR practice for correctional counselors to conduct an annual review of the central file of each inmate he or she is assigned. It is also standard practice for the correctional counselor at a sending facility to review an inmate's central file before endorsing the inmate for transfer to a new facility. Typically, when an inmate is transferred, his central file is not immediately available for review. The transferred inmate is asked to complete a form CDC-128X, which enables the receiving facility to make an initial determination about the inmate's housing, e.g., racial compatibility, enemy concerns, gang affiliations, medical concerns, etc. Plaintiff asserts that an additional purpose of the form CDC-128X is to determine whether an inmate poses a threat to officer safety.
31. On or about April 26, 2007, defendant Jackura conducted a review of plaintiff's CDCR central file. Jackura asserts that the review was routine; plaintiff asserts that the review was undertaken, in conspiracy with the other defendants, with the intent to contrive a reason to move plaintiff to Ad Seg.
32. Defendant Jackura avers that, during the course of his allegedly routine review of plaintiff's central file, he found a CDC 115 (also known as a "rules violation report" or "RVR"), that indicated plaintiff had been found guilty of a 1997 battery on CO San Nicholas, when plaintiff was previously incarcerated at CSP-SOL. Jackura states that he has no independent recollection of informing San Nicholas of plaintiff's renewed presence at CSP-SOL, but that he has no reason to doubt the accuracy of the general chrono later authored by Lt. Kesterson which states that Jackura, upon discovering the 1997 RVR, so informed San Nicholas. (Jackura Ans. to Amd. Interr. No. 3).
33. Defendant Kesterson's Ad Seg placement notice states that she interviewed San Nicholas on April 26, 2007, at approximately 9:00 a.m., and reminded him of the 1997 RVR, which she summarized as follows (Dkt. No. 14 at 29; Dkt. No. 33-6 at 19):
(
34. In answers to interrogatories, defendant San Nicholas states that he first learned of plaintiff's 2007 incarceration at CSP-SOL when so informed by defendants Jackura and Kesterson on April 26, 2007; that this information gave San Nicholas "concerns for his safety" (although San Nicholas clarified that he "did not use the term `threatened'"), and so he requested that plaintiff be moved to administrative segregation and transferred to another institution. (San Nicholas Ans. to Amd. Interr. Nos. 5-7.)
35. Plaintiff asserts that he did not pose a threat to institutional security at CSP-SOL in April 2007, and that his Ad Seg placement was the result of a conspiracy by defendants (apparently referencing defendants J. Johnson, Fowler, Jackura, San Nicholas and Kesterson), to retaliate against plaintiff for verbally challenging the authority of CSP-SOL officers, and filing the grievance against defendant J. Johnson.
36. Plaintiff challenges any inference that CSP-SOL prison officials were unaware of plaintiff's 1997 RVR until defendant Jackura reviewed plaintiff's central file on April 26, 2007. Plaintiff asserts that, even if his central file was not available for review when he was transferred to CSP-SOL, defendant Jackura, on January 9, 2007, approved and signed plaintiff's "Initial Housing Review" intake form, which denoted with an asterisk, in the box entitled "Other Special Concerns," that plaintiff had a "Battery on Staff at Solano." (
37. Plaintiff disputes defendants' averment that the first time San Nicholas became aware that plaintiff was incarcerated at CSP-Solano was on April 26, 2007, when so informed by Jackura, and that San Nicholas felt threatened when he learned of plaintiff's return to CSP-SOL. Plaintiff testified at his deposition that, in January or February 2007, shortly after his transfer to CSP-SOL, he had interactions with San Nicolas four or five days in a row, and that these interactions support a reasonable inference that San Nicholas recognized plaintiff and had no safety concerns. Specifically, plaintiff avers that San Nicolas worked for four or five days in Building 17, where plaintiff was housed; that, during this time, San Nicolas wrote plaintiff a pass to the visitor center, and unlocked the door for him to go to and from the yard; and that, when San Nicholas processed plaintiff's pass to the visitor center, it had plaintiff's name and CDCR number on it. Plaintiff states that, on one occasion, he told San Nicholas his name and CDCR number; and, on another occasion, he showed San Nicholas his identification card containing plaintiff's name, number and picture. (Pltf. Depo. 56:5-58:14.)
38. San Nicholas states that he was not an officer in Building 17, but worked as an escort officer, and may have worked in Building 17 during an overtime shift; however, San Nicholas states that he has no recollection of seeing plaintiff during this period of time. (San Nicholas Ans. to Amd. Interr. Nos. 3, 4.)
39. The Ad Seg lock-up order was served on plaintiff by defendant Fowler. (See Dkt. Nos. 14 at 30; 33-6 at 49.) As recalled by defendant Fowler, in response to questioning by plaintiff's counsel (Fowler Depo. 37:19-38:1):
40. Plaintiff's recollection of defendant Fowler serving plaintiff the Ad Seg lock-up order is distinctly different (Pltf. Decl. ¶¶ 23-24):
(
41. The parties agree that lengths of stays in Ad Seg vary greatly depending on the reason for the placement. Inmates awaiting transfer to other institutions must frequently wait a substantial length of time for a bed to become available in another institution (although plaintiff denies that this factor contributed to his 17-month stay in Ad Seg at CSP-SOL). Generally, inmates in Ad Seg awaiting transfer would not be transferred if they are awaiting a scheduled hearing before the parole board. (Plaintiff asserts that this factor did not contribute to the length of his Ad Seg placement because his parole hearing was never actually calendared and, even when the Institutional Classification Committee ("ICC") realized that no hearing was pending, it still declined to transfer plaintiff.)
42. The ICC initially reviewed plaintiff's Ad Seg placement on May 3, 2007. It was noted that plaintiff's placement was based on "staff safety concerns," and that San Nicholas had requested that plaintiff be moved to Ad Seg and transferred to another institution. It was further noted that plaintiff's Initial Parole Consideration Hearing ("IPCH") appeared to be scheduled for June 2007. It was determined that plaintiff would be retained in Ad Seg "pending [Parole] Board action and subsequent transfer." (Dkt. No. 33-6 at 21.)
43. The ICC next reviewed plaintiff's Ad Seg placement on July 12, 2007. The same reasons were noted for plaintiff's placement. It was further noted that plaintiff's IPCH "was tentatively scheduled for 6/2007, however due to an administrative error the Board desk was not aware that the subject should have been on calendar. At this time his Board Report is just being assigned to a CCI [Correctional Counselor I] for completion. This process will be expedited, if at all possible. An additional ASU [Administrative Segregation Unit] extension is needed to complete the Board Report and subject will be reviewed again by ICC, for possible transfer consideration, upon completion of subject's Initial Board Report." (Dkt. No. 33-6 at 23.) It was again determined that plaintiff would be retained in Ad Seg pending the Board's action and plaintiff's subsequent transfer. (
44. The ICC next reviewed plaintiff's Ad Seg placement on September 13, 2007. The same reasons were noted for plaintiff's placement. It was noted that "the Board desk was contacted and states subject's Board Report has been completed by CCI Jackura and [plaintiff] will not be placed on calendar until March 2008 according to Sacramento's scheduling. Due to subject's anticipated BPH date being over three months away, the recommendation is to refer subject for transfer to an alternate facility." (Dkt. No. 33-6 at 25.) It was determined that plaintiff would be retained in Ad Seg "pending transfer." (
45. On October 5, 2007, Classification Staff Representative ("CSR") Donnelly noted that CMF had declined plaintiff's transfer, and that San Quentin was closed to intake; however, plaintiff was accepted to the California Substance Abuse Treatment Facility ("SATF"), located at CSP-Corcoran. CSR Donnelly approved plaintiff's Ad Seg retention pending plaintiff's transfer. (Dkt. No. 33-6 at 27.)
46. The ICC again reviewed plaintiff's Ad Seg placement on January 10, 2008. The same reasons were noted for plaintiff's Ad Seg placement. It was further noted that "the subject is scheduled to appear before the BPH on 1-30-08," and that plaintiff's "transfer will no[t] occur until after the BPH." (Dkt. No. 33-6 at 29.)
47. The plaintiff was again seen by the ICC on July 10, 2008. The ICC noted that, while in Ad Seg, plaintiff had "completed zero periods disciplinary-free, and zero periods assigned to work. [His] score has increased to 31 due to 3 disciplinaries [but plaintiff] has a mandatory minimum of 19. BPH postponed until 6/09." (Dkt. No. 33-6 at 31.) It is unclear whether plaintiff's BPH was postponed due to plaintiff's Ad Seg disciplinary record. Nevertheless, the ICC elected to retain plaintiff in administrative segregation pending only his transfer to another prison. (
48. Plaintiff was released from CSP-SOL Ad Seg, and transferred to Pleasant Valley State Prison, on September 10, 2008.
49. Plaintiff alleges that, due to his 17 months in Ad Seg, he lost weight, lost sleep, developed migraine headaches and bed sores, became depressed and had a mental breakdown. Plaintiff also alleges, inter alia, that he was unable to have a contact visit with his father, who died while plaintiff was in Ad Seg, and that his grandparents were twice denied visitation. Plaintiff avers that he was found guilty of three false rules violations, at least one set up by defendant J. Johnson, who worked in Ad Seg three days each week. Plaintiff also avers that defendant Jackura prepared plaintiff's Parole Board Report without interviewing plaintiff and that the report contained false information.
50. Meanwhile, on May 22, 2007, plaintiff signed and submitted an administrative grievance challenging his placement in Ad Seg and requesting his return to the general prison population (Log. No. CSP-S-07-01570). (Dkt. No. 33-6 at 45-48.)
a. Plaintiff averred that he did not pose a threat to the safety and security of the prison, and opined that the asserted rationale for his placement, based on a "10 year old incident," "has a scent of vindictiveness" (
b. On June 28, 2007, plaintiff's appeal was denied at the First Level Review by Capt. Fry, acting on behalf of Associate Warden Moore. (Dkt. No. 33-6 at 51-52.) The decision noted plaintiff's concern "that you are scheduled for a Parole Board Hearing within 30 days and are concerned that your present housing in ASU may have a prejudicial impact on the hearing." (
The court initially notes two pertinent changes to CDCR regulations implemented on February 2, 2010. While these changes do not directly impact the merits of plaintiff's claims regarding the confiscation of his Religious Diet Card in 2007, they provide an important perspective.
First, the regulations now expressly provide that an inmate with a Religious Diet Card issued by one institution, who is transferred to another institution, shall be able to participate in the receiving institution's Religious Diet Program.
CDCR ISOR Jan. 12. 2009, at 2. The pertinent CDCR regulation now provides:
15 U.S.C. § 3054(c).
Second, CDCR implemented a statewide "Religious Meat Alternate Program," that provides halal meat as a religious diet option.
CDCR ISOR Jan. 12. 2009, at 1. This proposal was incorporated in CDCR's regulations:
15 U.S.C. §§ 3054.3(a)
Against this current backdrop, the court examines plaintiff's challenges to the confiscation of his Religious Diet Card in 2007.
"[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system."
In
Defendants do not dispute that plaintiff's dietary preferences are premised on his sincerely held religious beliefs. Further, although supporting documentary evidence appears to be lacking, defendants rely on the fact that "plaintiff admits that he followed this procedure [completion of a Religious Diet Request Form (Form 3030)] and submitted the request shortly after arriving in CSP-Solano." (Dfts.' Mtn., Dkt. No. 33-1 at 21;
It is also not disputed that plaintiff arrived at CPS-SOL with a Religious Diet Card, issued by Old Folsom State Prison, that plaintiff had used for the past year, without incident, to obtain meat-substitute meals at CCC. Plaintiff obtained meat-substitute meals with this card for approximately four days at CSP-SOL, before the card was confiscated.
Finally, although defendant Carroll asserts a lack of recollection, he has presented no evidence to refute plaintiff's allegations, both at the administrative level and before this court, that, on January 14, 2007, Carroll confiscated plaintiff's Old Folsom meal card while verbally denigrating plaintiff's Islamic faith. At the hearing, for purposes of this motion, defense counsel conceded that defendant Carroll confiscated plaintiff's Religious Diet Card, but not that Carroll denigrated plaintiff's religion.
Plaintiff does not challenge CDCR's regulations underlying the Religious Diet Program, other than their failure to authorize one standard CDCR Religious Diet Card that an inmate can use in all CDCR institutions. Rather, plaintiff challenges defendants' contention that Carroll's alleged conduct reflected reasonable and standard authorized procedures at CSP-SOL.
Initially setting aside plaintiff's allegations that defendant Carroll was motivated by, and/or expressed, religious animus when he confiscated plaintiff's Old Folsom meal card, the court first considers defendants' contention that Carroll's challenged conduct was authorized by CSP-SOL policies that were reasonably related to the successful implementation and enforcement of the Religious Diet Program. It is defendants' contention that, during the relevant period, it was "generally" the "standard practice" of staff to confiscate a Religious Diet Card issued by another institution because the lack of a standard CDCR diet card rendered it "impractical" or "impossible" to verify the authenticity of a card issued at a different institution, and "there were frequent attempts by inmates to forge and otherwise tamper with" such cards. (Sisto's Answer to Amd. Interr. Nos. 2, 3.) Further, assert defendants, CSP-SOL officials declined to issue temporary Religious Diet Cards because this option was not authorized by department regulations. (
The existence and enforcement of defendants' asserted policy, and its underlying rationale, are disputed based on the existing record. Defendant's qualified language ("generally") suggests inconsistent application of the policy, viz, inconsistent confiscations of non-CSP-SOL Religious Diet Cards by CSP-SOL staff (and hence the inconsistent honoring of such cards at CSP-SOL). This inference is supported by the undisputed fact that plaintiff was initially permitted to retain his Old Folsom Religious Diet Card after his transfer to CSP-SOL, following an official a search of his possessions. It is more broadly supported, department-wide, by plaintiff's use of his Old Folsom Religious Diet Card at CCC prior to his arrival at CSP-SOL, and plaintiff's subsequent use of his PVSP Religious Diet Card at CMF. In addition, defendants' stated rationale for the asserted policy — to stem the "frequent" attempts of inmates to forge Religious Diet Cards, or use forged cards — is not supported by the deposition testimony of defendant Fowler. Fowler stated that only forged Religious Diet Cards were confiscated at CSP-SOL; he was not aware of the confiscation of any Religious Diet Cards solely because they had been issued by another CDCR institution. Moreover, although defendant Fowler testified that the use of forged Religious Diet Cards is "common," he stated that he had confiscated only five or six cards in ten years working at CDCR, and estimated that the last time he or another officer had confiscated a forged diet card was five years before.
In support of their motion for summary judgment, defendants assert that it was "standard practice" for CSP-SOL officials to confiscate Religious Diet Cards issued by other institutions. (Dkt. No. 33-1 at 20.) However, noting defendant Fowler's testimony that "I would never do that, and I don't know if anybody has" (Fowler Depo. 17:16-17), and his testimony that correctional officers receive no training to implement or enforce the Religious Diet Program, plaintiff persuasively asserts that defendants have failed to demonstrate any "standard practice."
Moreover, even if defendants' practice of confiscating all Religious Diet Cards issued from other institutions was "standard," it appears, at least at this juncture, to fail the
In support of a
Plaintiff persuasively responds, under a
Pursuant to these considerations and the weight of the evidence, it is reasonable to infer that CSP-SOL lacked a standard policy and practice in the handling of Religious Diet Cards issued to inmates by other institutions. Moreover, even if CSP-SOL routinely abided by its asserted policy of confiscating all such cards, the omission of an alternate method by which a newly transferred inmate could maintain his religious diet appears to fall short of the
a.
The apparently discretionary application of CSP-SOL's asserted policy of confiscating Religious Diet Cards issued by other institutions, together with defendant Carroll's allegedly discriminatory statements to plaintiff, support a reasonable inference that Carroll acted with discriminatory intent when he confiscated plaintiff's Old Folsom Religious Diet Card. As an immediate result of the confiscation, plaintiff was denied the ability to observe the dietary laws of his religion and, hence, his First Amendment right to exercise his religion. However, whether Carroll confiscated plaintiff's Old Folsom Religious Diet Card, whether Carroll made discriminatory comments to plaintiff in the process, and Carroll's subjective intent when allegedly so acting, remain material factual disputes. Defendant Carroll's asserted lack of recollection of any interaction with plaintiff on January 14, 2007 — in contrast to plaintiff's detailed recollection, supported by the declaration of percipient witness Willie Pace — renders a finding as to Carroll's conduct and intent unresolvable on summary judgment.
Accordingly, defendants' motion for summary judgment on plaintiff's First Amendment claim against defendant Carroll should be denied.
Plaintiff contends that defendant Sisto, CSP-SOL Warden, expressly ratified defendant Carroll's alleged misconduct, and thereby also violated plaintiff's First Amendment rights.
"A defendant may be held liable as a supervisor under § 1983 if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. . . . The requisite causal connection can be established by setting in motion a series of acts by others, or by knowingly refusing to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury. A supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others."
Pursuant to his Second Level Review of plaintiff's administrative grievance (Log No. CSP-S-07-00273), defendant Sisto was put on notice that defendant Carroll had confiscated plaintiff's Old Folsom meal card, rendering meat-substitute trays unavailable to plaintiff; and of plaintiff's request, based on his religious beliefs, that he be provided meat-substitute trays pending receipt of an authorized CSP-SOL Religious Diet Card. As plaintiff now contends, while defendant Sisto directed plaintiff to the pertinent regulations and procedures, he "did not take action to remedy the situation," "affirmatively prolonged the denial of food that met Plaintiff's religious-based diet," and hence "knowingly allowed Plaintiff to be deprived of a religious diet." (Dkt. No. 39 at 17, 19.)
Moreover, as plaintiff contends, defendant Sisto's Second Level response, in light of the additional alleged facts, appears to demonstrate a failure to train and supervise CSP-SOL staff, specifically: (1) that Sisto failed to ensure that approved Religious Diet Card applications were implemented within 30 days, as required by department regulations; and (2) that Sisto failed to articulate, train, implement or enforce a consistent CSP-SOL policy concerning the confiscation of Religious Diet Cards issued by other institutions, as demonstrated by Sisto's answers to interrogatories, and the deposition testimony of defendant Fowler. Sisto's alleged inaction on these matters, if true, would indicate that Sisto knew, or reasonably should have known, that CSP-SOL inmates were at risk of constitutional deprivation due to the prolonged Religious Diet Card application process, and the discretionary confiscation of Religious Diet Cards; and that Sisto failed to implement readily available changes at CSP-SOL that would reduce the risk of constitutional deprivation. Sisto's alleged indifference to these matters is assertedly underscored by his Second Level response to plaintiff, that "[s]ome Muslims eat meat." and "you can eat the meal that is issued to you and eliminate the meat." (Dkt. No. 39-7 at 6.) Moreover, Sisto's decision to characterize plaintiff's grievance as a "religious program issue," rather than a "citizen's complaint" against defendant Carroll (
Accordingly, defendants' motion for summary judgment on plaintiff's First Amendment claim against defendant Sisto should be denied.
Defendants do not challenge clearly established law supporting a prisoner's First Amendment right to be provided food that is both sufficient to sustain health and satisfies the dietary beliefs and practices of his religion.
Plaintiff relies on the same allegations relative to defendant Carroll's alleged confiscation of plaintiff's Old Folsom Religious Diet Card, and Carroll's alleged contemporaneous statements, as well as defendant Sisto's alleged ratification of Carroll's alleged misconduct, to assert a denial of his right to equal protection. Defendants move for summary judgment on this claim on the ground that "there is no evidence that they violated the plaintiff's right to equal protection of the laws under the Fourteenth Amendment," and that "[p]laintiff was not in any way being singled out for unequal treatment." (Dkt. No. 33-1 at 21.)
Prisoners are protected from intentional discrimination on the basis of their religion by the Fourteenth Amendment's Equal Protection Clause.
There remain material factual disputes concerning defendant Carroll's alleged confiscation of plaintiff's Old Folsom Religious Diet Card on January 14, 2007, and Carroll's allegedly contemporaneous and discriminatory statements to plaintiff. Plaintiff's corroborated recollection is that Carroll made offensive and discriminatory statements about Muslims, the Muslim faith, and plaintiff's efforts to obtain meals consistent with his Islamic beliefs; however, Carroll states that he has no recollection of this alleged event, or of any other relevant interaction with plaintiff. Therefore, the court must, for purposes of this motion, find that plaintiff has shown by a preponderance of evidence that Carroll's confiscation of plaintiff's Religious Diet Card was motivated by discriminatory intent, rather than a legitimate penological purpose, thus precluding summary judgment on this claim.
Accordingly, defendants' motion for summary judgment on plaintiff's Fourteenth Amendment Equal Protection claim against defendant Carroll should be denied.
Defendant Sisto's alleged ratification of Carroll's alleged misconduct was premised on CSP-SOL's asserted policy of routinely confiscating Religious Diet Cards issued by other institutions. Sisto expressly declined to consider plaintiff's allegations against defendant Carroll, finding that plaintiff's grievance was solely a "religious program issue." (Dkt. No. 39-7 at 8.) However, there remain material factual disputes whether CSP-SOL's asserted policy of confiscating all religious diet cards from other institutions was uniformly enforced, and whether the confiscation of plaintiff's Old Folsom Religious Diet Card was motivated by defendant Carroll's animus toward Muslims. The court is therefore unable to determine on summary judgment whether defendant Sisto may have acquiesced in, and/or ratified, Carroll's allegedly discriminatory conduct. As discussed above, the available facts support a reasonable inference that Sisto was fully informed of the alleged relevant facts, and that Sisto was in a position to intervene on plaintiff's behalf, to censure Carroll, and/or to more clearly articulate and enforce a consistent and nondiscriminatory policy at CSP-SOL concerning the confiscation of Religious Diet Cards issued by other institutions. The available record indicates that Sisto did not pursue any of these options.
For these reasons, defendants' motion for summary judgment on plaintiff's Fourteenth Amendment Equal Protection claim against defendant Sisto should be denied.
Defendants do not challenge clearly established law supporting a prisoner's Fourteenth Amendment right to equal protection in the pursuit of his faith.
Defendants move for summary judgment on plaintiff's claim that defendant J. Johnson sexually harassed plaintiff in violation of the Eighth Amendment.
"The Eighth Amendment, in only three words, imposes the constitutional limitation upon punishments: they cannot be `cruel and unusual.' The Court has interpreted these words in a flexible and dynamic manner, and has extended the Amendment's reach beyond the barbarous physical punishments at issue in the Court's earliest cases."
Physical sexual assault by a prison official on an inmate is deeply offensive to human dignity, lacks any legitimate penological objective, and therefore violates the Eighth Amendment.
However, inmate sexual harassment claims, which allege sexually inappropriate touching and/or sexually inappropriate comments, require a careful assessment of the unique circumstances of each case.
Similarly, claims alleging sexually inappropriate conduct that does not include touching have generally been found to be noncognizable under the Eighth Amendment. In
Inmate sexual harassment claims that allege brief inappropriate touching by a correctional official are generally found to be noncognizable, particularly if the alleged touching occurred pursuant to an authorized search. "Even if plaintiff believed that there was a sexual aspect to the search, more is needed."
More recently, in
The court must first consider, while viewing the alleged facts in the light most favorable to plaintiff, whether plaintiff's alleged harm was objectively "sufficiently serious." "A prisoner may state an Eighth Amendment claim under § 1983 for sexual harassment only if the alleged harassment was sufficiently harmful."
In his relevant administrative grievance, plaintiff alleged that being required to repeat the "squat and cough" procedure "demean[ed] and degrade[d] me," and "when I notice[d] the bulge in c/o J. Johnson[`s] pants his conduct exceeded beyond demeaning and degrading, but reached a level of perversion and molestation to the degree that I felt violated extremely." (Dkt. No. 14 at 17 (Log No. CSP-S-07-02026).) Plaintiff repeated these sentiments a few days later, in a letter to the Internal Affairs Office, in which he expressed dismay at the affront to "the integrity of my manhood." (Dkt. No. 14 at 22.) At his deposition, plaintiff stated that defendant J. Johnson's alleged conduct made plaintiff feel "annoyed and offended." (Pltf. Depo. at 82:19-20.)
This court finds that plaintiff's alleged psychological injury resulting from defendant J. Johnson's subject search of plaintiff was, objectively, not sufficiently serious to support an Eighth Amendment claim. Feeling "demeaned," "degraded," "annoyed" and "offended" "does not rise to the level of severe psychological pain required to state an Eighth Amendment claim."
Even if plaintiff's alleged injury was sufficiently serious to state an Eighth Amendment claim, the court finds that the evidence fails to support a reasonable inference that defendant J. Johnson acted with a sufficiently culpable state of mind. Defendant J. Johnson's orders that plaintiff repeat, for a total of three times, the "squat and cough" portion of the subject search, and defendant's alleged use of a flashlight during the search, were authorized procedures within the scope of defendant's official responsibilities. Plaintiff does not dispute that legitimate penological objectives support routine strip searches of prisoners after they leave a visiting room, including the "squat and cough" procedure, and the use of a flashlight for illumination.
The court further finds that plaintiff's allegation that defendant J. Johnson prolonged his search of plaintiff for his own sexual gratification, as allegedly demonstrated by J. Johnson's alleged erection, does not present a material factual dispute. Defendant J. Johnson's denial that he was sexually aroused by his search of plaintiff (
For these reasons, defendants' motion for summary judgment on plaintiff's Eighth Amendment sexual harassment claim against defendant J. Johnson should be granted.
The court need not reach defendants' contention that defendant J. Johnson is entitled to qualified immunity for his search of plaintiff on February 11, 2007. Where the alleged facts do not state a claim for violation of an established constitutional right, the court need make no further inquiry under a qualified immunity analysis.
Defendants move for summary judgment on plaintiff's Eighth Amendment claim that defendant Fowler subjected plaintiff to excessive force.
"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in
Because defendant Fowler has no recollection of the alleged events, the court must assume the truth of plaintiff's factual allegations for purposes of the instant motion. Plaintiff alleges that, on February 11, 2007, while two other correctional officers pinned plaintiff against a wall, defendant Fowler bumped plaintiff's chest with his own chest and spit in plaintiff's face, apparently inadvertently, while taunting plaintiff to fight, insulting plaintiff, and threatening to send plaintiff to Ad Seg and ensure a parole denial. Although plaintiff concedes that he was not physically injured by Fowler, and that no fight ensued, he alleges that Fowler's use of force was entirely gratuitous and malicious, without any legitimate penological need; that the incident made plaintiff feel degraded and threatened, feelings that persisted in the ensuing weeks when plaintiff encountered Fowler in the yard; and that plaintiff's feelings were validated by Fowler ultimately following through on his threat to place plaintiff in Ad Seg and ensure a parole denial.
Plaintiff's allegations support a reasonable inference that defendant Fowler may have been motivated by anger due to plaintiff's interaction with defendant J. Johnson, rather than a need to restore discipline or maintain order. Nevertheless, Fowler's alleged bumping of plaintiff, and spitting in plaintiff's face, even if intentional, were uses of force that, while inappropriate, fall short of being constitutionally excessive. "The Eighth Amendment's prohibition of `cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind."
For these reasons, defendants' motion for summary judgment on plaintiff's Eighth Amendment excessive force claim against defendant Fowler should be granted.
The court need not reach defendants' contention that defendant Fowler is entitled to qualified immunity for his alleged excessive force against plaintiff on February 11, 2007. Where the alleged facts do not state a claim for violation of an established constitutional right, the court need make no further inquiry under a qualified immunity analysis.
Defendants move for summary judgment on plaintiff's claims that defendants J. Johnson, Fowler, Jackura, San Nicholas, and Kesterson, as well as defendant Cervantes, retaliated against plaintiff for exercising his recognized First Amendment right to file administrative grievances, and his alleged First Amendment right to verbally challenge correctional staff.
Defendants move for summary judgment on plaintiff's claim that defendants J. Johnson and Fowler retaliated against plaintiff for the statements plaintiff made incident to his February 11, 2007 search, demonstrated by J. Johnson handcuffing and restraining plaintiff, then escorting plaintiff to center complex where J. Johnson and Fowler allegedly sought to verbally and physically intimidate plaintiff. Plaintiff contends that his "verbal complaints and challenges to the excessive and harassing strip searches performed by Officer Johnson was protected speech" (Dkt. No. 39 at 29) and, therefore, that defendants' immediate responses thereafter are actionable under a First Amendment retaliation claim.
To state a claim for retaliation under the First Amendment, a prisoner must allege that a state actor took an adverse action against him, in retaliation for plaintiff engaging in an activity protected by the First Amendment, and that the adverse action did not reasonably advance a legitimate penological objective.
Plaintiff cites no authority in support of his contention that prisoners have a protected First Amendment right to verbally challenge correctional staff. The only First Amendment "protected speech" cases cited by plaintiff — which recognize the rights of citizens to verbally challenge police action,
The consensus of the cases that have considered the issue appears to be that an inmate's verbal challenges or rantings to correctional staff are not within the ambit of First Amendment protection,
Plaintiff's verbal statements to defendant J. Johnson on February 11, 2007, incident to the challenged search, were of the type found by other courts to be outside the protection of the First Amendment. The statements were argumentative, confrontational, and disrespectful. Moreover, as set forth in plaintiff's declaration and deposition testimony, his statements were laced with expletives, and plaintiff continued to express himself in this manner when taken to center complex. Such verbal insubordination by prisoners is proscribed by the legitimate goal of maintaining order and discipline within correctional institutions, as set forth in the CDCR regulations prohibiting such conduct.
For these reasons, the court finds that plaintiff's statements to defendant J. Johnson on February 11, 2007, incident to the subject search, were not protected speech. Therefore, plaintiff fails to state a First Amendment retaliation claim against defendants J. Johnson or Fowler based on the conduct that allegedly occurred immediately after the search.
Defendants move for summary judgment on plaintiff's claim that defendants J. Johnson, Fowler, Jackura, San Nicholas and Kesterson, as well as defendant Cervantes, retaliated against plaintiff for the exercise of his First Amendment right to file administrative grievances.
It is well established that prisoners have a First Amendment right to file prison administrative grievances.
On February 14, 2007, three days after the alleged events involving defendants J.
Johnson and Fowler, plaintiff filed an administrative grievance challenging defendant J. Johnson's search of plaintiff, and defendants' ensuing alleged "threats, harassment, robbery, and. . . retaliatory tactics," asserting that defendant J. Johnson's alleged "sexual deviant misconduct .. . escalated into vindictive, capricious retaliatory actions and criminal behavior" by J. Johnson and other correctional officers.
Applying the analytical framework endorsed by the Ninth Circuit in
It is plaintiff's theory, supported by reasonable inferences based on the available evidence and viewed in the light most favorable to plaintiff, that defendants J. Johnson and Fowler, motivated by retaliation against plaintiff for filing an administrative grievance challenging the events of February 11, 2007, enlisted the cooperation of defendants Jackura, San Nicholas, and Kesterson to achieve plaintiff's placement in Ad Seg.
For these reasons, defendants' motion for summary judgment should be denied on plaintiff's claim that defendants J. Johnson, Fowler, Jackura, San Nicholas, and Kesterson violated plaintiff's First Amendment right to file administrative grievances, by placing plaintiff in Ad Seg in retaliation for his filing of an administrative grievance challenging the events of February 11, 2007.
The complaint also alleges that defendant Cervantes (CSP-SOL Inmate Appeals Coordinator), acting in retaliation against plaintiff, "consistently screened out" plaintiff's prison grievances, including "the grievance plaintiff filed on him for wrongly screening out his grievances."
The court finds no evidence of record to support plaintiff's retaliation claim against defendant Cervantes. Cervantes' alleged failure to timely or properly process plaintiff's administrative grievances does not support a reasonable inference that Cervantes was motivated by retaliation against plaintiff for filing such grievances, or for challenging the conduct of other correctional officers. A Section 1983 claim will survive summary judgment only if plaintiff has presented sufficient evidence upon which to reasonably infer that there was an actual connection or link between the alleged actions of the defendant and the alleged deprivation suffered by plaintiff.
Plaintiff's further allegation that defendant Cervantes failed to process plaintiff's grievance challenging his failure to receive a Religious Diet Card, despite completing a Religious Diet Request (Pltf. Depo. at 27-28; Dkt. No. 39 at 32), fails for lack of any evidence in the record to support plaintiff's assertion that he did in fact complete a Religious Diet Request. Plaintiff has not sought to develop, in opposition, any other retaliation claim against defendant Cervantes.
Plaintiff is informed that prisoners have no stand-alone due process rights related to the administrative grievance process.
For these reasons, defendants' motion for summary judgment on plaintiff's First Amendment retaliation claim against defendant Cervantes should be granted.
Defendants do not challenge clearly established law supporting a prisoner's First Amendment right to right to file prison administrative grievances,
Therefore, none of these five defendants — J. Johnson, Fowler, Jackura, San Nicholas, and Kesterson — are entitled to qualified immunity on plaintiff's First Amendment retaliation claim, premised on the filing of plaintiff's February 14, 2007 administrative grievance.
For the reasons stated above, the court should grant defendants' motion for summary judgment on plaintiff's First Amendment retaliation claim against defendant Cervantes, but deny defendants' motion for summary judgment on plaintiff's First Amendment retaliation claims against defendants J. Johnson, Fowler, Jackura, San Nicholas, and Kesterson, premised on the filing of plaintiff's relevant administrative grievance.
Defendants do not address plaintiff's claim that defendants conspired to retaliate against plaintiff, other than a passing reference in defendants' reply brief that "there is . . . nothing but speculation that Cervantes was somehow involved in some conspiracy to retaliate against the plaintiff." (Dkt. No. 40 at 9.) Plaintiff contends that defendants J. Johnson, Fowler, Jackura, San Nicholas, and Kesterson, as well as defendant Cervantes, conspired to deprive plaintiff of his constitutional rights, particularly to retaliate against plaintiff for his verbal challenges to defendant J. Johnson, and plaintiff's subsequent filing of administrative grievances, particularly his grievance against J. Johnson.
A conspiracy claim brought under Section 1983 requires proof of "`an agreement or `meeting of the minds' to violate constitutional rights,"
Defendants' motion for summary judgment on plaintiff's conspiracy claim against defendants J. Johnson, Fowler, Jackura, San Nicholas, and Kesterson should be denied. In addition to the failure of these defendants to substantively oppose plaintiff's conspiracy claim against them, the court finds sufficient evidence of record to support the reasonable inferences plaintiff identifies, specifically, that defendant J. Johnson and defendant Fowler agreed to verbally and physically intimidate plaintiff immediately after the challenged strip search; and that defendants J. Johnson and Fowler thereafter enlisted the cooperation of defendants Jackura, San Nicholas, and Kesterson to place plaintiff in Ad Seg in retaliation for plaintiff filing a formal grievance against J. Johnson and the events of February 11, 2007. (
In contrast, notwithstanding the failure of defendants to oppose plaintiff's conspiracy claim against defendants Cervantes, the court finds that the record is devoid of evidence to support a reasonable inference that Cervantes participated in a conspiracy to retaliate against plaintiff.
Similarly, while the court acknowledges plaintiff's deposition testimony that he named CSP-SOL Warden Sisto as a defendant in this action, based on plaintiff's belief that Sisto conspired with the other defendants to retaliate against plaintiff (Pltf. Depo. 72:13-75:23), the court finds no evidence of record to reasonably support this claim. Plaintiff stated that he bases his belief on Sisto's June 8, 2007 letter to plaintiff, which plaintiff asserts was "outside" the normal appeal process, and demonstrated Sisto's awareness of plaintiff's allegations and decision not to intervene, thus ratifying the alleged conspiracy of the other defendants to retaliate against plaintiff. (
For these reasons, the court should grant defendants' motion for summary judgment on plaintiff's conspiracy claim against defendants Cervantes and Sisto, but the court should deny defendants' motion for summary judgment on plaintiff's conspiracy claim against defendants J. Johnson, Fowler, Jackura, San Nicholas, and Kesterson.
Based on the court's finding that the available evidence fails to support plaintiff's conspiracy claims against defendants Cervantes and Sisto, the court need not reach defendants' contention that they are entitled to qualified immunity on this claim.
Defendants J. Johnson, Fowler, Jackura, San Nicholas, and Kesterson, also seek qualified immunity on plaintiff's conspiracy claim. Defendants do not challenge clearly established law supporting a prisoner's right to be free from a constitutional deprivation that is the result of an official conspiracy to so deprive the prisoner of his constitutional rights.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. The Clerk of Court shall randomly assign a district judge to this action; and
IT IS HEREBY RECOMMENDED that:
1. Defendants Medinna, Abella, Fernandez, Ramirez and Fry should be dismissed from this action, pursuant to plaintiff's earlier decision to dismiss these defendants and proceed on his Amended Complaint (see Dkt. Nos.17-19).
2. Defendants' motion for summary judgment (Dkt. No. 33), should be granted in part and denied in part.
3. Summary judgment should be granted for defendants on plaintiff's Eighth Amendment sexual harassment claim against defendant J. Johnson; on plaintiff's Eighth Amendment excessive force claim against defendant Fowler; and on plaintiff's First Amendment retaliation and conspiracy claims against defendants Sisto and Cervantes.
4. This action should proceed on the following claims against the following defendants:
a. Against defendants Carroll and Sisto, on plaintiff's First Amendment free exercise claims, and Fourteenth Amendment equal protection claims; and
b. Against defendants J. Johnson, Fowler, Jackura, San Nicholas, and Kesterson on plaintiff's First Amendment retaliation and conspiracy claims.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 21 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." Any response to the objections shall be filed and served within 14 days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Plaintiff testified in pertinent part at his deposition (Pltf. Depo. at 39-43, 81-82;
