RONALD E. BUSH, Chief Magistrate Judge.
Plaintiff Oswald Reyna's prisoner civil rights action arises from his stay in, and removal from, the Idaho Department of Correction (IDOC) sex offender treatment program (SOTP) at the Idaho Correctional Institution-Orofino (ICI-O), a program that was a prerequisite to qualifying for release on parole. Pending before the Court is Defendant Larry Bearden's Motion to Dismiss or in the Alternative Motion for Summary Judgment. (Dkt. 31.) Also pending are Defendant's Motion for Leave to File a Supplemental Affidavit (Dkt. 34), and Plaintiff Oswald Reyna's Motion for Extension of Time to File Reply. (Dkt. 35.)
The motions are now fully briefed. All parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 15.) Having reviewed the record, the Court concludes that oral argument is unnecessary and enters the following Order.
Defendant has filed a Motion for Leave to File a Supplemental Affidavit (Dkt. 34), seeking to add to the record the Affidavit of Brenda Layne, containing additional relevant information discovered after the Motion for Summary Judgment was filed. Good cause appearing, the Motion will be granted.
Plaintiff Oswald Reyna has requested an extension of time in which to respond to Defendant's Motion for Summary Judgment. (Dkt. 35.) He has since filed his Response. Good cause appearing, the Motion will be granted, and the Response is considered timely.
Both parties have submitted evidence beyond the pleadings to be considered by the Court in its determination of whether the remaining claims are subject to dismissal. Therefore, the Court will decide Defendant's Motion for Summary Judgment under Rule 56, which renders moot the alternative Motion to Dismiss under Rule 12(b).
Summary judgment is appropriate where a party can show that, as to a particular claim or defense, "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). One of the principal purposes of the summary judgment rule "is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is not "a disfavored procedural shortcut," but is instead the "principal tool[] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327.
Rule 56(c) provides:
"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, there must be a genuine dispute as to a material fact essential to an important element of the cause of action or defense to survive summary judgment. Disputes over facts that are not material to the resolution of the motion will not preclude summary judgment. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
The Court must consider "the cited materials," but it may also consider "other materials in the record." Fed. R. Civ. P. 56(c)(3). The existence of a scintilla of evidence in support of the non-moving party's position is insufficient. Rather, "there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.
Material used to support or dispute a fact should be "presented in a form that would be admissible in evidence," or it may be subject to objection. See Fed. R. Civ. P. 56(c)(2).
If a party "fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the Court may consider that fact to be undisputed. Fed. R. Civ. P. 56(e)(2). The Court may grant summary judgment for the moving party "if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(3). The Court may also grant summary judgment to a non-moving party, on a ground not raised by either party, or sua sponte provided that the parties are given notice and a reasonable opportunity to respond. Fed. R. Civ. P. 56(f).
The Court does not decide credibility of affiants or weigh the evidence set forth by the non-moving party. Anderson, 477 U.S. at 255. That means a party's or witness's sworn statement must be taken as true for purposes of summary judgment. The Court must also draw all reasonable inferences from circumstantial evidence in a light most favorable to the non-moving party, T.W. Elec. Serv., Inc., 809 F.2d at 630-31, but it is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1207-088 (9th Cir. 1988) (observing that Matsushita Electric Industrial Company v. Zenith Radio Corporation, 475 U.S. 574 (1986), "authorizes an inquiry on summary judgment into the `implausibility' of inferences from circumstantial evidence . . ., not an inquiry into the credibility of direct evidence.").
The Court previously granted summary judgment to Defendant Bearden on the retaliation claim asserted in the original Complaint arising from Defendant Bearden's revision and resubmission of the DOR regarding the Officer Cox incident (described in the timeline below). As to that claim, the Court ruled that, even if Bearden revised and resubmitted the DOR based on a retaliatory motive, Plaintiff had no retaliation claim because the DOR had a legitimate penological purpose—that is, to bring attention to and punish behavior that was inappropriate.
Plaintiff then filed an Amended Complaint, asserting additional acts of retaliation that he gleaned from the discovery responses of Defendant. Now at issue are Plaintiff's claims that Defendant retaliated against him (1) by allegedly falsely reporting to the Team Case Management (TCM) committee that Plaintiff had continued the behaviors that led to his removal from the SOTP; (2) by informing the TCM committee that Plaintiff had been removed due to sexual misconduct, rather than due to parole board action; and (3) by manufacturing false information and using it in a Pathway Exception Request (PER) to raise Plaintiff's pathway assessment number from 11 to 13, instead of lowering it to 9, as assessment results indicated.
The following facts are undisputed or, if disputed, the proffered fact most favorable to Plaintiff has been included, or both proffered facts have been noted.
The required elements of a retaliation claim are the following: "(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, . . . 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) (footnote omitted). Although a "chilling effect on First Amendment rights" is enough to state an injury, Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), "bare allegations of arbitrary retaliation" are insufficient to state a claim. Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985).
Particularly at issue in this case is whether Plaintiff has brought forward sufficient evidence to show that the alleged retaliatory action did not advance legitimate penological goals, such as the preservation of institutional order, discipline, security, and rehabilitation of prisoners. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam); Rizzo, 778 F.2d at 532. Federal courts "should `afford appropriate deference and flexibility' to prison officials [when evaluating the] proffered legitimate penological reasons for conduct alleged to be retaliatory." Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (quoting Sandin v. Conner, 115 S.Ct. 2293, 2299 (1995)). "Specifically, the prison administrators cannot be held liable unless their retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Vance v. Barrett, 345 F.3d 1083, 1093 (9th Cir. 2003).
While "timing can be properly considered as circumstantial evidence of retaliatory intent," there generally must be something more than timing alone to support an inference of retaliatory intent. Pratt v. Rowland, 65 F.3d at 808. Retaliation is not established simply by showing adverse activity by defendant after protected speech; plaintiff must show a nexus between the two. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (a retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, i.e., "after this, therefore because of this").
Plaintiff has not shown that the alleged retaliatory acts of November 13, 2013 (reporting privately to the TCM committee that Plaintiff continued behaviors that caused him to be removed from programing) and January 29, 2014 (reporting privately to the TCM committee that Plaintiff was removed from programing for sexually acting out) were in response to Plaintiff's exercise of a constitutional right. Rather, Plaintiff himself asserts that these acts were in response to Defendant's disbelief in learning that Plaintiff had not lost his parole date as a result of the shower incident DOR. Similarly, because Plaintiff had no knowledge of Defendant's comments made in a private staff meeting until he learned of these facts through discovery many months later, he cannot meet the element that his exercise of a constitutional right was chilled by Defendant's words to other clinicians in the meeting. Because Plaintiff has not come forward with sufficient evidence supporting these two elements of the claim, it is subject to summary judgment.
Plaintiff also cannot support the final element required for a retaliation claim— lack of a penological reason behind Defendant's words and actions. Even if Defendant acted in retaliation for something Plaintiff had said—such as Plaintiff's reporting to the Warden that he believed Defendant was harassing him—Bearden's acts advanced a legitimate penological goal. It is uncontested that Bearden had the responsibility to manage the offenders in the program, assess whether they were following the rules and programming appropriately, and bring inappropriate behavior to their attention. The record is replete with instances where Plaintiff's words and actions could be viewed as attempting to ingratiate himself to other inmates and staff, being involved in various activities or conversations that could lead to sexual activities, and failing to report other inmates' inappropriate behaviors as the program required. While the Officer Cox DOR was for manipulation of staff, the root of the entire Officer Cox incident was that Inmate Rosales had reported to Cox that Plaintiff had violated a cardinal rule by making an inappropriate sexual remark to him, and Plaintiff was trying to find out information from Cox about the rule violation report. Because Defendant Bearden's words and actions served a legitimate penological goal, the claim is subject to summary judgment.
The third retaliation claim is that, in July 2014, Defendant Bearden prepared documentation and correspondence containing exaggerated, misstated, and manufactured information to have a Pathway Exception Request (PER) submitted to raise Plaintiff's pathway from 11 to 13 before Plaintiff's next parole hearing, which would cause him to be removed from the SOTP.
Plaintiff alleges that on July 22, 2014, he told Clinician Gimmeson in the SOTP that he had filed a lawsuit against Defendant Bearden and did not want Bearden to be his clinician any more. Plaintiff has provided no facts showing that Gimmeson reported the existence of the lawsuit to Defendant. Plaintiff relies on timing alone for his allegation that the lawsuit was the protected activity that caused Bearden to retaliate by recommending that, although Plaintiff qualified for a pathway 9, other factors caused him to be rated for a pathway 13, which meant he would be removed from the ICI-O SOTP program and sent to a southern Idaho facility for a lengthier SOTP. Though Defendant Bearden denies that he was the person who actually prepared the paperwork for the change, and he points to the fact that other clinicians and Dr. Craig Beaver approved the change, the record contains sufficient evidence from which a jury could find that Defendant's expressed opinion about Plaintiff's alleged continued sexual behaviors was the impetus for the change.
Once again, however, even if Plaintiff could meet all of the other elements of a retaliation claim (for example, if he had evidence that Gimmeson told Bearden about the lawsuit), he cannot meet the element of showing lack of a penological interest in the recommendation to move Plaintiff to a lengthier pathway to enter a program at a different facility.
The presence of a legitimate penological goal is supported by Dr. Beaver's opinion. When Plaintiff wrote a grievance to report that Defendant Bearden was harassing him, Dr. Beaver notified Plaintiff that it was he, Dr. Beaver, who made the ultimate determination of where Plaintiff should be placed, and that he had approved the recommended change to pathway 13. Dr. Beaver explained in the grievance appeal response:
(Dkt. 29-2, p. 10.)
Because Plaintiff has brought forward insufficient evidence showing that a legitimate penological interest was not being served by the change, his retaliation claim is subject to summary judgment.
Plaintiff's next claims that Defendant Bearden, a trained clinician, knew that Plaintiff suffered from several mental illness conditions or disorders, and yet verbally and emotionally abused Plaintiff by interrogating him for hours about the Officer Cox incident, causing exacerbation of Plaintiff's symptoms. During the interrogation, Plaintiff says that he eventually agreed with Defendant because he became confused and simply wanted Defendant to stop interrogating him.
In § 1983 actions, the doctrine of qualified immunity protects state officials from personal liability for on-the-job conduct so long as the conduct is objectively reasonable and does not violate clearly-established federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). A qualified immunity analysis consists of two prongs: (1) whether the facts as alleged by plaintiff establish a violation of a constitutional right, and (2) whether that right was clearly established given the state of the law at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009), citing Saucier v. Katz, 533 U.S. 194, 201 (2001). As to the first prong, the court considers whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the [defendant's] conduct violated a constitutional right." Saucier, 533 U.S. at 201.
As to the second prong, whether the law was clearly established, a court need "not require a case directly on point"; however, "existing precedent must have placed the statutory or constitutional question beyond debate," for a court to conclude that qualified immunity does not apply. Ashcroft v. alBKidd, 131 S.Ct. 2074, 2083 (2011); Stanton v. Simms, 134 S.Ct. 3, 5 (2013). The "dispositive inquiry is whether it would [have been] clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. The United States Supreme Court has clarified: "We have repeatedly told courts . . . not to define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced." Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014) (internal citations and punctuation omitted). More recently, the United States Supreme Court held that qualified immunity applies where no prior precedent "squarely governs" the facts at hand. Mullenix v. Luna, 136 S.Ct. 305, 310 (2015).
If the public official can demonstrate he did not know, nor should he have known, the relevant legal standard, then qualified immunity applies. Harlow, 457 U.S. at 819. "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments," and "protects `all but the plainly incompetent or those who knowingly violate the law.'" alBKidd, 131 S.Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Courts may "exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236. The qualified immunity inquiry is "a pure question of law." Elder v. Holloway, 510 U.S. 510, 514 (1994). However, "under either prong, courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment." Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014).
To state a claim under the Eighth Amendment, a plaintiff must show that he is incarcerated "under conditions posing a substantial risk of serious harm," or that he has been deprived of "the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citation omitted). An Eighth Amendment claim requires a plaintiff to satisfy "both an objective standard—that the deprivation was serious enough to constitute cruel and unusual punishment—and a subjective standard— deliberate indifference." Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).
As to the objective standard, verbal harassment, abuse and threats, without more, are not sufficient to state a constitutional deprivation under § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987) (allegations that correctional counselor told plaintiff that he would transfer him to a higher custody status unit if he tried to go to the law library and that he would be sorry if he filed a class action suit were not actionable under § 1983).
However, inmates have an Eighth Amendment right to be free from "calculated harassment unrelated to prison needs." Hudson v. Palmer, 468 U.S. 517, 530 (1984). The United States Supreme Court has reiterated that the Eighth Amendment should be reserved for serious incidents causing "unnecessary and wanton infliction of pain," where such pain has been inflicted by prison officials' "deliberate indifference to the inmates' health or safety." Hope v. Pelzer, 536 U.S. 730, 736-37 (2002) (internal citations and punctuation omitted. Further, in McKune v. Lile, 536 U.S. 24, 41 (2002), the Court noted that, in determining whether a constitutional claim lies, "[c]ourts must decide whether the [facts] are closer to the physical torture against which the Constitution clearly protects or the de minimis harms against which it does not."
As to the subjective factor, to violate the Eighth Amendment, a prison official must act in a manner that amounts to deliberate indifference, which is "more than ordinary lack of due care for the prisoner's interests or safety," but "something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Farmer, 511 U.S. at 835. Stated another way, deliberate indifference exists when an Aofficial knows of and [recklessly] disregards an excessive risk to inmate health or safety,@ which means that an official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 838.
The Court finds this a novel claim upon which there is no clearly established law that "squarely governs."
Young v. Franco, 2007 WL 926497, at *1. The complaint in Young v. Franco was later dismissed for failure to exhaust administrative remedies, and, thus, the plaintiff's allegations were never addressed on the merits.
The Court has not found a case of precedential value that could be considered clearly-established law governing Plaintiff's claim. Part of Defendant Bearden's job duties were to hold Plaintiff to a high standard of behavior to teach him the principles he needed to be successful when leaving the SOTP (see warden's letter); whether Defendant crossed the line from harsh questioning to harassment in a mental health setting cannot be measured against any similar precedent. Therefore, qualified immunity is appropriately applied, and summary judgment in Defendant's favor will be granted.
For the reasons set forth herein above, Plaintiff's claims are subject to summary judgment, and the Court does not reach Defendant's alternative arguments. It is worth noting in that context that the Idaho Department of Correction is reevaluating all of its rehabilitative programs against empirical data calling into question programs focused on harsh corrective measures rather than modeling and teaching mutual respect and human dignity. The Idaho Department of Correction announced last year that it had discontinued all of its so-called "shame-based" therapeutic community rehabilitative programs and has determined that it would clarify its pathways to parole.
Specifically, verbal harassment, standing alone, does not violate the Eighth Amendment proscription against cruel and unusual punishment. Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) ("verbal harassment generally does not violate the Eighth Amendment," especially where there was no evidence "that these comments were unusually gross even for a prison setting").
