Opinion
2:19-cv-01210-MK
03-18-2024
MICHAEL JAMES EVANS, Plaintiff, v. MICHELLE NELSON et al., Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (HE / HIM) UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael James Evans (“Plaintiff”) brings suit under 42 U.S.C. § 1983 alleging that state officials violated his constitutional rights. For the reasons explained below, Defendants' Motion for Summary Judgment (ECF No. 120) should be GRANTED.
BACKGROUND
At the time of the incidents at issue, Plaintiff was an adult in custody (“AIC”) of the Oregon Department of Corrections at Two Rivers Correctional Institution (“TRCI”). TAC ¶ 16667.
I. Procedural History
Plaintiff filed his Complaint on August 5, 2019 and has amended three times, most recently on July 22, 2020. See ECF Nos. 1, 5, 12, and 56 (“TAC”). On August 5, 2021, after receiving leave from the Court to exceed the page limit requirements, Defendants filed a Motion for Summary Judgment in two parts, bifurcating their procedural and substantive arguments. Defendants' Mot. for Summ. J. Part One ECF No. 119 (procedural); Defendants' Mot. for Summ. J. Part Two ECF No. 120 (substantive) (“Defs.' Mot.”). The Court held the substantive portion of Defendants' motion in abeyance pending resolution of the procedural portion. ECF No. 138.
Plaintiff also filed a Motion for Summary Judgment (ECF No. 108), however, he subsequently voluntarily withdrew the Motion. ECF No. 191.
On September 7, 2022, the Court found that Plaintiff's state law claims were barred by the Oregon Tort Claims Act and that Plaintiff's § 1983 claims relating to medical treatment were limited to events occurring on or after August 5, 2017. Findings and Recommendation (September 7, 2022) at 20 and 25, ECF No. 160 (“F&R”) (adopted July 12, 2023, ECF No. 183) In response to Defendants' Motion for Summary Judgment Part Two, Plaintiff conceded that Defendant Aguiar's involvement was limited and he withdrew his claims against her. Pl.'s Resp. at 12, ECF No. 195. On November 15, 2023, the Court heard Oral Argument on Plaintiff's remaining claims. ECF No. 200.
The Court's F&R noted Defendants' notice that Ms. Nelson is not represented by the Oregon Department of Justice and has not appeared or waived service in this action. F&R at 4 n.1 (citing Defendants' Mot. for Summ. J. Part One at 1 n.1). On January 30, 2024, the Court Ordered Plaintiff to show good cause in writing by February 27, 2024 why the claims against Ms. Nelson should not be dismissed for failure to show proof of service. ECF No. 205. Plaintiff did not comply and on March 4, 2024 the Court recommended dismissing the claims against Ms. Nelson. ECF No. 206.
The surviving claims consist of:
Claim (8): an Eighth Amendment deliberate indifference claim against Defendant Norton for causing wanton pain and suffering due to failure to timely diagnose and treat Plaintiff's heart condition;
Claim (9): an Eighth Amendment deliberate indifference claim against Defendants Norton and Patton for failure to take Plaintiff off his work assignment;
Claim (11): an Eighth Amendment deliberate indifference claim against Defendants Norton and Patton for creating an unreasonable risk to future health due to failure to timely diagnose and treat Plaintiff's heart condition;
Claim (12): an Eighth Amendment deliberate indifference claim against Defendant Norton for failure to conduct sufficient tests to diagnose Plaintiff's medical condition;
Claim (10): a First Amendment claim against Defendant Martin for retaliation.
II. Medical Treatment
Because of the procedural posture of this case, the background information focuses primarily on events that took place within the statute of limitations period beginning August 5, 2017. Plaintiff was admitted to the Oregon Department of Corrections on December 13, 2007. Med. R. 1. All AICs are given an initial intake medical examination upon their arrival. Roberts Decl. ¶ 9, ECF No. 129. Plaintiff received his initial intake medical examination on December 18, 2007. Med. R. 5. Plaintiff's electrocardiogram (“EKG”) test was noted as abnormal, his lipids level was high, and he was subsequently diagnosed with hyperlipidemia. Med. R. 4-5, 57, 135, 923.
All references to the medical record encompass pages 13 through 1396 of the Roberts Decl. (ECF No. 129).
A. Defendant Norton
On June 15, 2017, Plaintiff met with Defendant Dr. Norton regarding back pain. Med. R. 85. Defendant Norton diagnosed probable mechanical back pain and ordered labs, x-rays, and medications. Med. R. 84. Plaintiff was instructed to follow up in two to three weeks. Id. On June 22, 2017, Defendant Norton reviewed Plaintiff's chart. Med. R. 83. On July 6, 2017, Plaintiff returned to Defendant Norton for a follow-up visit regarding the labs and x-rays. Med. R. 37, 83. Defendant Norton noted Plaintiff's lipids were high and diagnosed dyslipidemia, Med. R. 83, “which in this context is the same as hyperlipidemia.” Roberts Decl. ¶ 36. Defendant Norton prescribed Lipitor for Plaintiff and ordered a follow-up in six to eight weeks. Med. R. 83, 677.
On August 7, 2017, Plaintiff received medical treatment to excise a skin lesion. Pl.'s Mot. Summ. J. Ex. 1 at 37, 108-1 (“Pl.'s Exs.”). On August 24, 2017, Plaintiff met with Defendant Norton to review the pathology report. Pl.'s Exs. 37. Plaintiff attests that he complained to Defendant Norton that he was suffering from chest pains during the August 24, 2017 visit. Pl.'s Mot. Summ. J. ¶ 115 ECF No. 108 (“Pl.'s Decl.”). Defendant Norton stated that:
Johnson v. Meltzer, 134 F.3d 1393, 1400 (9th Cir. 1998) (“verified motion functions as an affidavit”).
[d]uring this [August 24, 2017] visit, [Plaintiff] complained of “panic attacks” (Pt has hx of anxiety disorder and-bipolar disorder.) [Plaintiff] seemed-upset. The progress note makes no mention of complaints of chest pain or shortness of breath. I would-normally have annotated in the progress notes “chest pain” or “back pain” if the patient had mentioned either of those, as those could alter my decision-making process. Plaintiff's presentation at that time did not indicate need for a Cardiology consult.Pl.'s Exs. 37. Defendant Norton further stated:
If my memory serves me, the patient came in complaining of
nervousness and anxiety. He did not complain of chest pain or shortness of breath. Therefore, I did not suspect an acute myocardial infraction. If I had suspected an acute myocardial infraction, I would have sent him to the ER.Pl.'s Exs. 512. Defendant Norton then referred Plaintiff to Behavioral Health Services (“BHS”) for follow-up on the self-reported anxiety attacks, ordered a routine EKG, and ordered another lipids panel. Med. R. 36, 538. The 2017 results of Plaintiff's EKG were abnormal. Med. R. 922. However, Defendant Norton noted the test showed no acute changes since Plaintiff's December 2007 EKG. Med. R. 922. Plaintiff's medical records indicate this was Defendant Norton's last interaction with Plaintiff. Roberts Decl. ¶ 39.
B. Defendant Patton
On September 7, 2017, Plaintiff met his new provider, Defendant Dr. Patton, who conducted several tests. Pl.'s Exs. 257. Plaintiff attests that he complained of his chest pain and back pain during this visit. Pl.'s Resp. at 2. On October 26, 2017 Plaintiff met again with Defendant Patton and complained of chest and pack pain upon exertion. Defendant Patton reviewed Plaintiff's medical record, noted his symptoms, ordered additional testing, and noted that he was considering ordering an EKG exercise stress test. Med. R. 93. On January 9, 2018 Defendant Patton referred Plaintiff to an outside medical provider to perform an exercise stress test. Med. R. 92. The stress test was performed on February 22, 2018. Pl.'s Exs. 441. The results of the exercise stress test came back as abnormal, and Defendant Patton ordered additional testing which was performed at an outside medical facility on June 6, 2018. The results of those tests indicated that Plaintiff had a large area of lateral and inferolateral ischemia. Plaintiff continued to receive medical treatment and underwent bypass surgery on December 8, 2018 which found that Plaintiff suffered from an 80% occlusion to his left and right anterior coronary arteries and 100% occlusion of his posterior main coronary artery. Pl.'s Resp. at 4.
During a “stress test” the patient is connected to a EKG while undergoing physical exertion. Pl.'s Decl. ¶ 126.
C. Behavioral Health Services
Following Defendant Norton's August 24, 2017 referral to BHS, Plaintiff received a mental status screening from Defendant Aguiar on August 25, 2017 who referred Plaintiff for a follow-up visit. Pl.'s Exs. 259. Plaintiff told Defendant Aguiar that his work assignment was causing chest pain. Pl.'s Exs. 465. Plaintiff met with BHS counselor Ms. Nelson on October 6, 2017 for treatment of his apparent panic attacks, which manifested with chest pain radiating up his shoulder. Pl.'s Exs. at 261. Ms. Nelson recorded Plaintiff stating the panic attacks were triggered while Plaintiff was walking on the track and while working. Pl.'s Exs. at 261. Plaintiff stated in a later grievance that he requested being removed from his work assignment at this time. Pl.'s Exs. at 463. Ms. Nelson recorded in her progress note that Plaintiff was “willing to take measures to work through his panic attacks prior to being pulled out of his job.” Pl.'s Exs. at 261; 466.
On January 3, 2018, Plaintiff's BHS progress note indicates that he requested to be taken off of his work assignment. Pl.'s Exs. at 266. On January 4, 2018, Plaintiff filed a grievance against Ms. Nelson for failing to remove Plaintiff from his work assignment. Pl.'s Exs. at 461. Plaintiff's January 17, 2018 BHS progress note indicates that Plaintiff “states that he has noticed that he has not experienced any pain recently when he is exercising.” Pl.'s Exs. at 268. On February 8, 2018 Plaintiff sent an inmate communication asking why he still had not been removed from his work assignment. Pl.'s Exs. at 460. The response from a BHS staff member states that Ms. Nelson sent a request on February 6, 2018, that Plaintiff be removed from his work assignment. Pl.'s Exs. at 460. BHS approved Plaintiff's request to be removed from his work assignment on February 8, 2018. Pl.'s Exs. at 462. In a follow-up grievance, Plaintiff stated that Ms. “Nelson told me the delay in removing me from my work assignment was due to her work schedule over many inmates and under staffing.” Pl.'s Exs. at 465.
III. Library Incident
TRCI maintains a law library which allows AICs access to supplies and information systems such as legal forms and legal research tools to prepare and file legal documents. Martin Decl. ¶ 2, ECF No. 127. In addition to the law library itself, TRCI provides AIC legal assistants, that is, AICs assigned by the library coordinator who act as legal assistants to other AICs. Or. Admin. R. 291-139-0160(1) (“OAR”); Martin Decl. ¶ 3. With the approval of the library coordinator, AIC legal assistants may temporarily possess another AIC's legal materials in the law library for purposes of providing legal assistance. OAR 291-139-0160(7)(a); Martin Decl. ¶ 3. Otherwise, AICs are prohibited from possessing another AIC's legal material. OAR 291-105-0015(1)(e)-(f).
Defendant Martin was employed as the Law Library Coordinator at TRCI during the time of incident at issue. Martin Decl. ¶ 1. On April 16, 2019, Plaintiff was approached in the day room by Mr. Holmgren, another AIC at TRCI. Pl.'s Decl. ¶ 153. Mr. Holmgren asked Plaintiff to help him complete a “Notice of Request for Trial”, a fill in the blank form that Mr. Holmgren received from the law library. Pl.'s Decl. ¶ 153. Once completed, Mr. Holmgren signed and dated the form and then delivered it to the law library's outbox along with a request for copying. Pl.'s Decl. ¶ 154. On April 17, 2019, Defendant Martin received the photocopy request, along with two legal documents. Martin Decl. ¶ 7. Although the photocopy request was in the name of Mr. Holmgren, Defendant Martin suspected that the handwriting on the legal documents belonged to Plaintiff, an AIC who she had assisted many times in her role as library coordinator. Martin Decl. ¶¶ 4, 8. Defendant Martin felt confident in her suspicion after she compared the handwriting on Plaintiff's previous requests with Mr. Holmgren's request. Martin Decl. ¶ 8. Plaintiff does not dispute that it was his handwriting on the documents. Pl.'s at 57-58.
On April 18, 2019, Defendant Martin filed a misconduct report against Plaintiff for violation of Disobedience to an Order I and Contraband II. Martin Decl. ¶ 10. “An AIC commits Disobedience of an Order I when that AIC overtly refuses to promptly or timely comply with a valid order, which creates a threat to the safety, security, or orderly operation of a facility.” OAR 291-105-0015(a). “An AIC commits Contraband II when that AIC possesses contraband . . . that creates a threat to the safety, security, or orderly operation of a facility, including . . . legal material belonging to another AIC[.]” OAR 291-105-0015(1)(e)-(f). “Possession” is defined as “hav[ing] physical possession of or otherwise exercis[ing] dominion or control over property.” OAR 291-105-0010(34).
On April 23, 2019, Plaintiff was given a hearing on the misconduct report. Nofziger Decl. at 17, ECF No. 124. The hearing officer concluded:
Rule 1.11, Contraband II, is Dismissed Without Prejudice, and Rule 4.01, Disobedience of an Order I, are [sic] Dismissed Without Prejudice, in that there is no information as to if the inmate was in possession of [sic]. There is nothing stating an inmate can't help another inmate with legal work. What order was given?Id.
Although Defendant Martin did not report Plaintiff for Unauthorized Use of Information Systems I, under that regulation, AICs are prohibited from using information systems equipment such as terminals, computers, and copiers, to do unauthorized legal work. OAR 291-105-0015(i)(C). Defendant Martin attests that she “believed in good faith that [Plaintiff] had committed rule violations by writing legal documents for another AIC and possessing another AIC's legal work.” Martin Decl. ¶ 9. Defendant Martin further attests that she filed the misconduct report based on her understanding of the facts and “the rules regarding the law library and legal material.” Martin Decl. ¶¶ 9-10. Plaintiff attests that Defendant Martin “is under the delusional belief that only her ‘Law Library Legal Assistants' . . . are the only ones she believes should be allowed to help other inmates with there [sic] legal work / needs.” Pl.'s Decl. ¶ 157. Plaintiff attests that this policy allows Defendant Martin “to control what is or isn't allowed to be filed with the courts, especially where indigent inmates are concerned.” Pl.'s Decl. ¶ 157. Plaintiff further attests “that Defendant Martin's actions have a lasting ‘chilling effect' on those who seek to help those who have no further form of assistance; or where they would have no further pursuance of legal redress without those like Plaintiff assisting them as in this case with Mr. Holmgren.” Pl.'s Decl. ¶158.
LEGAL STANDARDS
I. Summary Judgment
To prevail on their motion for summary judgment, Defendants must show that there is no genuine dispute as to any material fact and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Defendants must present evidence of record, together with affidavits, if any, that demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. If Defendants meet this burden, the burden shifts to Plaintiff to demonstrate the existence of a genuine issue of fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see Fed.R.Civ.P. 56(c)(1).
The Court must construe the evidence and all reasonable inferences in favor of Plaintiff, the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255 (1986). The Court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec., 475 U.S. at 587 (citation and quotation marks omitted).
II. Section 1983
To state a civil rights claim under § 1983, Plaintiff must allege that (1) a person acting under color of law (2) deprived him of a federal constitutional right. 42 U.S.C. § 1983; Stein v. Ryan, 662 F.3d 1114, 1118 (9th Cir. 2011). Liability under § 1983 arises upon a showing of personal participation by each defendant, and a supervisor is not liable for the constitutional violations of employees unless the supervisor “participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff must show that each named defendant, through their own individual actions, violated Plaintiffs constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
DISCUSSION
I. Eighth Amendment Claims
In response to Defendants' Motion for Summary Judgment, Plaintiff asserts there is a genuine dispute of fact about whether Defendants ignored the signs and symptoms of his heart condition, showing deliberate indifference to Plaintiff's pain and suffering by delaying treatment and failing to timely remove him from his work assignment.
Prison officials and physicians violate the Eighth Amendment's proscription against cruel and unusual punishment when they act with deliberate indifference to an AIC's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference exists when a prison official knows that an AIC faces a substantial risk of serious harm and fails to take reasonable measures to abate the risk. Id.; see Farmer v. Brennan, 511 U.S. 825, 837, 847 (1994); see also Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057-58 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of facts from which the inference could be drawn that a substantial risk of harm exists,' but that person ‘must also draw the inference.'” Toguchi, 391 F.3d at 1057 (quoting Farmer, 511 U.S. at 837).
Deliberate indifference to an AIC's serious medical needs may be manifested when prison officials deny, delay, or intentionally interfere with medical treatment, or by the way prison officials provide medical care. Estelle, 429 U.S. at 104-05; Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). In any case, the indifference must be substantial; inadequate treatment due to negligence, inadvertence, or differences in judgment between inmates and medical personnel do not rise to the level of a constitutional violation. Estelle, 429 U.S. at 105-06; Toguchi, 391 F.3d at 1057. Similarly, a delay in providing medical treatment, without more, does not amount to a constitutional violation; the delay must have led to “significant harm” to sustain a claim of deliberate indifference to a serious medical need. Hallett, 296 F.3d at 746. “[T]he question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated a classic example of a matter for medical judgment . . . [and] does not represent cruel and unusual punishment. At most it is medical malpractice[.]” Estelle, U.S. at 107.
Given Plaintiff's continued symptoms and their alleged severity, he establishes the existence of a serious medical need. However, framed in the light most favorable to Plaintiff, the record fails to establish a genuine dispute about whether Defendants Norton and Patton acted with deliberate indifference.
A. Claim 8 - Deliberate Indifference to Pain and Suffering
Plaintiff alleges that Defendant Norton ignored Plaintiff's medical history and complaints of chest pain, acting with deliberate indifference towards Plaintiff's pain and suffering. Pl.'s Resp. at 10. Plaintiff asserts there is a genuine dispute about whether Plaintiff complained of chest pains to Defendant Norton on August 24, 2017 and that this dispute is material because if Defendant Norton knew that Plaintiff was suffering from chest pains then he should have referred Plaintiff to an outside medical provider. Pl.'s Resp at 4.
Viewing the record in the light most favorable to Plaintiff, whether Defendant Norton should have referred Plaintiff to an outside provider is a question of negligence, not deliberate indifference. Plaintiff has not presented evidence creating a genuine dispute about whether Defendant Norton acted with a culpable state of mind. That is, there is no evidence showing that Defendant Norton deliberately disregarded a substantial risk of harm to Plaintiff. Rather than ignoring the signs and symptoms of Plaintiff's medical condition, the record establishes that Defendant Norton referred Plaintiff to BHS for treatment of Plaintiff's self-reported anxiety attacks and ordered both an EKG and a lipids panel. Defendant Norton then reviewed the results of the EKG and concluded that, although abnormal, the results were consistent with the EKG conducted in 2007. Defendant Norton's allegedly inadequate treatment of Plaintiff's heart condition does not rise to the level of a constitutional violation. Estelle, 429 U.S. at 105-06.
B. Claim 9 - Failure to Remove Plaintiff from His Work Assignment
Plaintiff alleges that Defendants Norton and Patton acted with deliberate indifference by refusing to remove Plaintiff from his work assignment for five months. TAC ¶ 205. Health Services staff and Behavioral Health Services staff have the authority to remove an AIC from their work assignment due to a physical or mental disability. OAR 291-201-0120(5)-(6). A thorough examination of the record, including Plaintiff's medical records, inmate communications, grievances, and BHS' progress notes demonstrates that Plaintiff's requests for a medical exemption to his work assignment were directed at BHS and Ms. Nelson, in particular. The record does not reasonably support an inference that Defendants Norton or Patton denied Plaintiff's requests for a medical exemption. Thus, Defendants Norton and Patton did not cause an alleged delay in the removal of Plaintiff from his work assignment and cannot be liable under this claim. See Ashcroft, 556 U.S. at 676. To the extent that Plaintiff's claim is directed at Defendant Norton and Patton, when considering the evidence in the record in the light most favorable to Plaintiff, there is no genuine dispute that Defendants Norton and Patton continued to treat Plaintiff's medical condition. Therefore, even if the Court were to infer that Defendants Norton and Patton denied Plaintiff's request for a medical exemption, there is no genuine dispute that they did not act with deliberate indifference. See Estelle, U.S. at 107 n.16 (doctors were not indifferent to AIC plaintiff's needs where they denied work exemption but continued to provide medical treatment).
C. Claims 11 and 12 - Failure to Timely Diagnose and Treat Plaintiff
Plaintiff alleges that Defendants Norton and Patton created an unreasonable risk to Plaintiff's future health due to a failure to timely diagnose and treat Plaintiff's heart condition. Plaintiff fails to present evidence showing a genuine dispute about whether Defendants Norton and Patton deliberately disregarded a known substantial risk of harm. Viewing the evidence in the light most favorable to Plaintiff, there is no genuine dispute that Defendants Norton and Patton treated the signs and symptoms of Plaintiff's condition. For example, Defendant Norton ordered testing, prescribed a medication, and referred Plaintiff to BHS, and Defendant Patton reviewed Plaintiff's medical records, ordered additional testing, and referred Plaintiff to an outside medical facility. Defendants' alleged failure to timely diagnose and treat Plaintiff's heart condition arises, if at all, under medical malpractice and not the Eighth Amendment's prohibition on cruel and unusual punishment. See Estelle, 429 U.S. at 105-06.
II. First Amendment Claim
Plaintiff's 10th Claim for Relief alleges retaliation against Plaintiff in violation of his associational rights under the First Amendment. Pl.'s Resp. at 14. Plaintiff alleges that Defendant Martin filed the misconduct report because Plaintiff assisted another AIC with his legal work. Pl.'s TAC ¶ 194.
To state a viable claim of First Amendment retaliation, plaintiff must allege 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) (footnote omitted).
Defendants challenge the second (retaliatory motive), third (protected conduct), and fifth (legitimate correctional goal) elements of Plaintiff's First Amendment retaliation claim for the purpose of their motion for summary judgment and assert qualified immunity as wll. See Defs.' Mot. 29-30. The Court exercises its discretion to take up qualified immunity first, as the issue is dispositive in this case. Pearson v. Callahan, 555 U.S. 223, 242 (2009).
Qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 231 (quotation marks and citation omitted). The purpose of qualified immunity is to “strike a balance between the competing ‘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.'” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (quoting Pearson, 555 U.S. at 231). Qualified immunity “applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson, 555 U.S. at 231.
“Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official's conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts may exercise their discretion in deciding which prong to address first “as they are in the best position to determine the order of decision making that will best facilitate the fair and efficient disposition of each case.” Pearson, 555 U.S. at 242.
Whether an official is entitled to qualified immunity “generally turns on the objective legal reasonableness of the action assessed in light of the legal rules that were clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citations and internal quotations omitted). “For a right to be ‘clearly established,' existing ‘precedent must have placed the statutory or constitutional question beyond debate,' such that ‘every' reasonable official, not just ‘a' reasonable official, would have understood that he was violating a clearly established right.” Thompson v. Rahr, 885 F.3d 582, 587 (9th Cir. 2018) (emphasis in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
The Court exercises its discretion to take up the second prong as the threshold matter. Plaintiff asserts that “[a] prisoner's right to associate with other inmates, in a limited manner, has been well established since Rizzo” v. Dawson, 778 F.2d 527 (9th Cir. 1985). Pl.'s Resp. at 17. Plaintiff's asserted right is stated too broadly. The issue is whether Plaintiff has a clearly established right to provide legal assistance to another AIC.
In Rizzo, the plaintiff alleged that his forced transfer out of a prison-vocational course “was in retaliation for his work as a ‘jailhouse lawyer' assisting other inmates with habeas petitions and other federal actions.” 778 F.2d at 529. The 9th Circuit reversed the district court's sua sponte dismissal of the claim with prejudice at the in forma pauperis screening stage, holding the plaintiff had sufficiently alleged that the defendant retaliated against him for engaging in expressive association under the First Amendment. Id. at 532. The 9th Circuit noted that it was unclear whether the complaint would survive summary judgment and remanded to the district court for further proceedings. Id. at 532 n.4. Qualified immunity was not discussed.
The 9th Circuit has subsequently expressed “questions about Rizzo's vitality” noting that “its holding is difficult to square with the Supreme Court's subsequent teachings on prisoners' rights.” Blaisdell v. Frappiea, 729 F.3d 1237, 1247 (9th Cir. 2013). “As a general matter, the Court has instructed that ‘freedom of association is among the rights least compatible with incarceration.'” Id. (quoting Overton v. Bazzetta, 539 U.S. 126, 131 (2003)). “While inmates engaged in collective civil rights litigation conceivably could claim to be expressively associating, the same cannot be said for” assisting in legal work with “no inherently expressive dimension.” Id. at 1246-47.
For example, assisting another AIC with service of process is not expressive conduct protected by the First Amendment. Id. This Court is skeptical that assisting another AIC with a fill in the blank form is expressive conduct protected by the First Amendment. Rather, acting as a scrivener is more akin to assisting an AIC with service of process than engaging in collective civil rights litigation. However, without deciding that issue, Plaintiff's asserted right to assist another AIC with legal work is not “‘beyond debate,' such that ‘every' reasonable official, not just ‘a' reasonable official, would have understood that he was violating a clearly established right” by filing a misconduct report. Thompson, 885 F.3d at 587 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741). Defendant Martin is entitled to qualified immunity.
CONCLUSION
For the reasons explained above, Defendants' Motion for Summary Judgment (ECF No. 120) should be GRANTED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. 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, 1157 (9th Cir. 1991).
IT IS SO ORDERED.