STANLEY A. BOONE, District Judge.
Plaintiff Jesse Washington is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
This action is proceeding against Defendant Samuels for retaliation in violation of the First Amendment.
On August 6, 2015, Defendant Samuels filed a motion for summary judgment. (ECF No. 49.) Plaintiff filed an opposition to Defendant's motion on August 31, 2015. (ECF Nos. 57, 58, 61.) Defendant filed a reply on September 28, 2015. (ECF No. 69.)
On August 11, 2015, Plaintiff filed a motion for summary judgment. (ECF No. 51.) Defendant filed an opposition on September 21, 2015. (ECF No. 68.) Plaintiff filed a reply on October 5, 2015. (ECF No. 72.)
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);
In resolving cross-motions for summary judgment, the Court must consider each party's evidence.
In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence,
In arriving at this recommendation, the Court has carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.
The events described in Plaintiff's complaint took place while Plaintiff was incarcerated at Kern Valley State Prison in Delano, California ("KVSP"). Plaintiff names R. Samuels (correctional officer) as defendant in this action ("Defendant").
Plaintiff alleges that Defendant Samuels harassed Plaintiff. (First Am. Compl. 5.
Plaintiff was allowed to retrieve his package, but contends that a bag of Keebler's soft batch chocolate chip cookies were missing. (First Am. Compl. 7-8.) Samuels told Plaintiff to contact the company that sent the package. (First Am. Compl. 8.) After writing a letter to the company, the company instructed Plaintiff to have Samuels contact the company to confirm the issue. (First Am. Compl. 8.) Samuels told Plaintiff that he would confirm the issue with the company. (First Am. Compl. 8-9.) However, Samuels later told Plaintiff that he "declined" to contact the company. (First Am. Compl. 9.) Plaintiff contends that Samuels refused to help Plaintiff with the cookie issue out of retaliation against a grievance Plaintiff filed against Samuels for his harassing conduct. (First Am. Compl. 9.)
On January 17, 2011, Samuels threatened to rescind Plaintiff's medical chrono for a lower bunk and orthopedic shoes after Plaintiff had played a flag football game with other prisoners in the exercise yard. (First Am. Compl. 9-10.) Plaintiff also contends that Samuels harassed Plaintiff during a medical examination that same day. (First Am. Compl. 10.) Samuels then generated a false Rules Violation Report accusing Plaintiff of threatening to harm him. (First Am. Compl. 11.)
"Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so." Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is the right to pursue civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Retaliatory motive may be shown by the timing of the allegedly retaliatory act and inconsistency with previous actions, as well as direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288-1289 (9th Cir. 2003). However, mere speculation that defendants acted out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 904-905 (9th Cir. 2014) (affirming grant of summary judgment where no evidence that defendants knew of plaintiff's prior lawsuit or that defendants' disparaging remarks were made in reference to prior lawsuit).
Retaliation claims brought by prisoners must be evaluated in light of concerns over "excessive judicial involvement in day-to-day prison management, which `often squander[s] judicial resources with little offsetting benefit to anyone.'" Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). In particular, courts should "`afford appropriate deference and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory." Id. (quoting Sandin, 515 U.S. at 482).
Plaintiff moves for judgment on the ground that Defendant Samuels generated a false RVR Log No. FB-11-01-0146 on January 17, 2011, stating that Plaintiff threatened to subject him to physical harm through civilian family members when Plaintiff was receiving medical emergency treatment at (FBB#7) during third watch/shift 1400 to 2200. After Defendant Samuels alleged to have been threatened by Plaintiff on January 17, 2011, he failed to activate his assigned institutional security alarm or immediately contact his supervising officers (sergeant or lieutenant) to report such serious threats upon an officer.
Plaintiff further argues that on January 24 and 31, 2011, Defendant Samuels was reassigned to Plaintiff's housing unit (FBB#7) and did not voice any security concerns about being in an environment where he was just threatened by an inmate who allegedly said that he intended to do harm to him through civil family members, less than one week from the threatening statements. Finally, the false (RVR Log # FB-11-01-0146) was dismissed in its entirety on February 7, 2011, by Lieutenant E. Campagna on insufficient evidence to sustain a charge of threat on a peace officer. Plaintiff reasons that it is evidence that due to Defendant Samuels' failure to object to the dismissal of his generated false RVR, this Court should grant Plaintiff's motion for summary judgment as a matter of law on his claim of retaliation.
Defendants oppose Plaintiff's motion for summary judgment because Plaintiff "cannot demonstrate that, based upon the undisputed facts of this case, he is entitled to summary judgment as a matter of law." (ECF No. 68, Opp'n at 1:22-24.)
Defendant argues that despite Plaintiff's claim that Defendant drafted RVR Log No. FB-11-01-046 because Plaintiff filed an inmate appeal alleging staff misconduct on the part of Samuels, Plaintiff cannot establish that Defendant Samuels' actions lacked a legitimate penological goal or chilled the exercise of Plaintiff's rights under the First Amendment.
In reply, Plaintiff contends his summary judgment motion should be granted in its entirety based on the undisputed facts of this case and Plaintiff's clear demonstration that Defendant Samuel's actions were motived by Plaintiff's protected right to file a grievance. Plaintiff submits that he has demonstrated that Defendant Samuel's own supervising officials stated that his actions did not substantiate sufficient facts to warrant Plaintiff to be found guilty of RVR Log Number FB-11-01-046, threat on a peace officer, and there was no legitimate correctional purpose for issuance of the RVR.
Plaintiff bears the burden of proof at trial. To prevail on his motion for summary judgment against Defendants, Plaintiff must affirmatively demonstrate that no reasonable trier of fact could other than for him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If Plaintiff meets his initial burden, Defendants are required to set forth specific facts showing there is a genuine issue for trial.
Plaintiff's claim is premised on retaliatory conduct by filing a false RVR Log No. FB-11-01-046 for threats made against Defendant Samuels because Plaintiff had previously filed an inmate grievance. Plaintiff has a protected First Amendment right to file a grievance. Watison v. Carter, 669 F.3d at 1114. However, Plaintiff must show that his filing of the grievance was the substantial motivation for Defendant's actions taken in relation to the issuance of a RVR. Brodheim v. Cry, 584 F.3d at 1271 (citing Sorrano's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).
In opposition, Defendant Samuel's declares, in pertinent part, as follows:
(ECF No. 49-5, Samuels Decl. ¶¶ 7-13.)
In contrast, Plaintiff contends that the RVR was issued only in retaliation for filing a prior inmate grievance. (ECF No. 51, Plaintiff Decl. ¶¶ 26-27.)
Based on the competing evidence before the Court, Plaintiff has failed to meet his burden of demonstrating that he is entitled to judgment as a matter of law, and his motion for summary judgment should be denied.
Defendant moves for summary judgment because his preparation of the RVR was based on Plaintiff's threat against him, and Plaintiff's exercise of his First Amendment rights were not chilled. In the alternative, Defendant argues he is entitled to qualified immunity.
Plaintiff contends the facts clearly show that Defendant Samuels' actions were not in accordance with his penological interest or institutional goals, but was done with ill will and solely for the purpose of harassing Plaintiff, causing a chilling effect on Plaintiff exercise of his First Amendment rights. Plaintiff specifically contends and reiterates that Defendant Samuels harassed Plaintiff. Plaintiff received a vendor package that was processed by Samuels and another officer at the "Receiving and Release" department. Plaintiff's package included food items, which Samuels tossed through the Receiving and Release window and onto the ground. Plaintiff complained about Samuels' actions and threatened to file an administrative grievance against Samuels and his co-worker. Samuels and the co-worker then ordered Plaintiff to submit to a clothed body search. Samuels then escorted Plaintiff to his cell and subjected Plaintiff to an unclothed body search, which resulted in discrimination, retaliation and sexual harassment.
Plaintiff was allowed to retrieve his package, but contends that a bag of Keebler's soft batch chocolate chip cookies were missing. Samuels told Plaintiff to contact the company that sent the package. After writing a letter to the company, the company instructed Plaintiff to have Samuels contact the company to confirm the issue. Samuels told Plaintiff that he would confirm the issue with the company. However, Samuels later told Plaintiff that he "declined" to contact the company. Plaintiff contends that Samuels refused to help Plaintiff with the cookie issue out of retaliation against a grievance Plaintiff filed against Samuels for his harassing conduct.
On January 17, 2011, Samuels requested that the nurse rescind Plaintiff's medical chrono for a lower bunk and orthopedic shoes after Plaintiff had played a flag football game with other prisoners in the exercise yard. Samuels then generated the false RVR accusing Plaintiff of threatening to harm him.
Plaintiff submits that where factual disputes exist as to the parties' conduct or motive, the case cannot be resolved at summary judgment or on qualified immunity grounds.
Defendant argues that Plaintiff's "[o]pposition makes numerous irrelevant and conclusory claims of equal protection violations and retaliation against Defendant Officer Samuels; however, [Plaintiff] does not deny that he used profanity against Officer Samuels and threatened to harm him and his family, resulting in Officer Samuels's preparation of a Rules Violation Report (RVR) against [Plaintiff] for threats to staff. [Plaintiff] has not met his burden to oppose summary judgment because he has failed to demonstrate that the RVR did not advance a legitimate correctional goal of maintaining safety and order in a prison, nor demonstrate that the RVR chilled his exercise of his First Amendment rights. Officer Samuels is also entitled to qualified immunity because he acted lawfully and reasonably in preparing a RVR based on his concern for his and his family's safety following [Plaintiff's] threats." (ECF No. 69, Reply at 1:21-2:2.)
Defendant Samuels moves for summary judgment on the ground that a legitimate penological goal was served by the issuance of the RVR, dated January 17, 2011, for threats against staff, and Plaintiff has failed to demonstrate any chilling effect on his rights under the First Amendment.
There is no dispute that Plaintiff's right to file a grievance was protected conduct under the First Amendment. In addition, there is not dispute that Plaintiff filed an inmate grievance against Defendant Samuels and officer Williams on October 24, 2010 (of which Defendant Samuels was clearly aware), alleging harassment and retaliation while Plaintiff was trying to receive his package at the Receiving and Release window. (Samuels Decl. ¶ 4.)
The issuance of a false RVR against an inmate constitutes adverse action. Watison, 668 F.3d at 1114-1115; Brodheim, 584 F.3d at 1269. However, Plaintiff must demonstrate that the filing of his grievance was the substantial or motivating factor behind the issuance of the RVR on January 17, 2011. In this circuit, Plaintiff need "only put forth evidence of retaliatory motive that, taken in the light most favorable to him, presents a genuine issue of material fact as to" Defendant's motivation. Brodheim, 584 F.3d at 1271 (citing Bruce v. Ylst, 351 F.3d at 1289. This requires Plaintiff to offer either direct evidence of retaliatory motive or at least one of three general types of circumstantial evidence: (1) proximity of time between the protected conduct and the alleged retaliation, (2) expressed opposition to the conduct, or (3) other evidence that the reasons proffered by Defendants for the adverse action were false and pretextual. McCollum v. California Dep't of Corr. & Rehab., 647 F.3d 870, 882 (9th Cir. 2011) (citing Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 2002).
In addition, in evaluating the existence of a legitimate correctional goal, there must be a valid, rational connection between the action and the legitimate neutral governmental interest put forward to justify it. Brodheim, 584 F.3d at 1272-1273 (citing Shaw v. Murphy, 532 U.S. 223, 228 (2001). In making this determination, courts should consider (1) the existence of alternate means of exercising the right available to inmates; (2) the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and (3) the absence of ready alternatives available to the prison for achieving the governmental objectives. Shaw, 532 U.S. at 228.
On January 17, 2011, Defendant Samuels issued Plaintiff an RVR for threatening staff, which stated that on January 17, 2011, while escorting Plaintiff from his cell to the medical examination room in the rotunda area, Plaintiff was telling the nurse that he had hurt his foot and skinned up his knees by tripping and falling on the yard. Defendant Samuels informed the nurse that he observed Plaintiff on the yard playing football and he was sprinting, jumping and diving for the ball. Plaintiff then stated, "Yeah, I tripped while playing football." When the nurse went to the other officer to use the phone, Plaintiff told Defendant Samuels "You're a faggot and I'm gonna get your punk ass and I got family, and they'll be taking care of it you bitch." Samuels informed Plaintiff that he was going to issue a rules violation report for threats on staff. (ECF No. 49-5, Ex. B.)
At the hearing on the RVR, Plaintiff pled not guilty and declined to make a statement. Plaintiff was found not guilty because the RVR did not substantiate a threat as Plaintiff was escorted back to his cell without incident and no alarm was sounded. (ECF No. 49-5, Ex. B.)
Defendant Samuels submits that the RVR was issued because of the threats Plaintiff made against Samuels and his family which Samuels understood "to mean revenge or retaliation against me." (Samuels Decl. ¶ 9.) However, Plaintiff submits the RVR was false and issued in retaliation for having filed a prior inmate grievance against Defendant Samuels.
Defendant's argument that Plaintiff did not deny making the threating statements at his RVR hearing is not persuasive. Plaintiff pled not guilty and declined to make a statement and was thereafter found not guilty. Plaintiff cannot now be faulted in a civil rights action for not denying making such statements when there is no such requirement.
Defendant also argues that his supervisor, correctional sergeant Nuckles reviewed the RVR, classified it as "serious," and referred it for hearing with a Senior Hearing Officer. Defendant submits that based on his experience, if Sergeant Nuckles, as reviewing supervisor, had determined that this RVR was inappropriate, he would not have signed it. The Court does not find merit in Defendant's argument. Defendant Samuels argument is based on pure speculation, without any evidentiary support. In any event, the fact that the supervisor reviewed the RVR and submitted it for hearing, does not overcome the fact that Defendants Samuels may have independently issued the RVR in retaliation.
While the discipline of inmates for threats made against prison staff certainly on its face serves a legitimate penological interest, there is a genuine issue of fact as to whether the issuance of the RVR in this instance was issued for such legitimate correctional purposes or whether it was issued in retaliation. It is undisputed that only Defendant Samuels and Plaintiff were present when the alleged threat was communicated, and based on the competing evidence before the Court, there is sufficient evidence to support a rational inference of pretext and Defendant's motion for summary judgment cannot be granted.
Defendant argues that his preparation of the RVR did not chill Plaintiff's exercise of his First
Amendment right to file inmate appeals. Defendant submits that of the 34 inmate appeals Plaintiff filed at KVSP from 2009 through June 2012, at least 11 of them were initiated, or submitted for a subsequent level of review, after January 2011, which was after Defendant Samuels' preparation of the RVR on January 17, 2011.
Certainly the issuance of a false RVR in retaliation for protected conduct of filing an inmate grievance would deter a person of ordinary firmness from engaging in such protected conduct, and it is more than minimal harm. See Rhodes, 408 F.3d at 568-569 (holding that the proper First Amendment inquiry asks whether official's acts would chill person of ordinary firmness from future First Amendment activities). The fact that Plaintiff was found not guilty of the RVR and subsequently filed other inmate grievances does not negate the finding of a chilling effect on the exercise of his First Amendment rights.
Viewing the evidence in the light most favorable to Plaintiff, there is a genuine issue of material fact as to whether Defendant Samuels issued the RVR to further a legitimate penological correctional goal or whether the RVR was issued in retaliation for Plaintiff prior filing of an inmate grievance against Defendant Samuels and Officer Williams. McCollum, 647 F.3d at 882. Consequently, Defendant Samuel's motion for summary judgment should be denied.
Defendant argues he is entitled to qualified immunity, which shields government officials from civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."
In resolving a claim of qualified immunity, courts must determine whether, taken in the light most favorable to the plaintiff, the defendant's conduct violated a constitutional right, and if so, whether the right was clearly established.
The law for a claim of retaliation was clearly established as of January 17, 2011 (the date at issue). In this case, there is a genuine issue of material fact regarding whether Defendant Samuels violated Plaintiff's First Amendment rights. Such unresolved issues of fact are also material to a proper determination of the reasonableness of Defendant Samuel's belief in the legality of his actions. If Plaintiff's version of the facts is resolved by a jury in his favor, a reasonable officer would have understood that issuing a false rules violation report in retaliation for filing a previous grievance would be unlawful. Accordingly, Defendant Samuels is not entitled to qualified immunity.
Based on the foregoing, it is HEREBY RECOMMENDED that:
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within
