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finding "protected conduct" for purposes of a retaliation claim in the plaintiff's exercise of "both his First Amendment right not to speak in response to defendant[]'s questions and his Fifth Amendment right against self-incrimination"
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No. CIV S-09-0940 TLN DAD P
07-16-2013
WILLIE BRIDGES, Plaintiff, v. SUZAN L. HUBBARD, et al., Defendants.
ORDER AND
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on a motion for summary judgment brought on behalf of defendants Crandall, Davey, Ivicevich, Johnson, Marquez, Marsh, Marshall, and Wong pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has filed an opposition to the motion.
BACKGROUND
Plaintiff is proceeding on his third amended complaint against defendants Crandall, Davey, Ivicevich, Johnson, Marquez, Marsh, Marshall, and Wong. In relevant part, plaintiff alleges in that complaint as follows. On June 17, 2003, white inmates attacked black inmates on the C-upper yard at High Desert State Prison ("HDSP"). Prison officials punished black inmates on C-yard by placing them on an extensive lock-down. On January 24, 2005, defendant Davey reported that he received information from a confidential source indicating that black inmates were targeting several staff members for assault. An investigation concluded that plaintiff along with eight other black inmates conspired to murder numerous peace officers. Prison officials subsequently issued plaintiff a prison rules violation report ("RVR"), but for various reasons prison officials twice re-issued and re-heard that RVR. Ultimately, defendant Ivicevich found plaintiff guilty of the charge and referred him to the Institution Classification Committee for assessment of a Security Housing Unit ("SHU") term. Plaintiff has since served a 48-month SHU term as a result of his disciplinary conviction. Plaintiff claims that in connection with these events defendants retaliated against him, engaged in a conspiracy to deprive him of his constitutional rights, and subjected him to cruel and unusual punishment in violation of the Eighth Amendment. (Third Am. Compl. at 5-16.)
SUMMARY JUDGMENT STANDARDS UNDER RULE 56
Summary judgment is appropriate when the moving party "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).
Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically store information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case." Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.). See also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, . . ., is satisfied." Id. at 323.
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 does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of 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." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (citations omitted).
"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
OTHER APPLICABLE LEGAL STANDARDS
I. Civil Rights Act Pursuant to 42 U.S.C. § 1983
The Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
II. Conspiracy
To state a conspiracy claim under § 1983, plaintiff must allege that defendants reached an agreement or a meeting of the minds to violate plaintiff's constitutional rights and took some concerted action in furtherance thereof. See Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002); Gilbrook v. City of Westminster, 177 F.3d 839, 856-67 (9th Cir. 1999); Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989); Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). Although each of the defendants does not need to know the exact details of the plan, each defendant must share a common objective of the conspiracy. See Franklin, 312 F.3d at 441; Fonda, 707 F.2d at 438.
III. Retaliation
Under the First Amendment, prisoners have a constitutional right to file prison grievances and pursue civil rights litigation in the courts. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). Prison officials may not retaliate against prisoners for doing so. See id. at 568. In this regard, the Ninth Circuit has explained:
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.Id. at 567-68. See also Bruce v. Ylst, 351 F.3d 1283 (9th Cir. 2003).
IV. The Fourteenth Amendment and Due Process Protections for Prisoners
Prisoners retain their rights under the Fourteenth Amendment Due Process Clause, but they are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). It is well established that "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id. However, prisoners are entitled to the following procedures at disciplinary hearings where they may lose good-time credits or be placed in solitary confinement: (1) advanced written notice of the claimed violation at least twenty-four hours before the hearing, (2) a written statement of fact findings as to the evidence relied upon and reasons for the actions taken, and (3) a right to call witnesses and present documentary evidence where such would not be unduly hazardous to institutional safety or correctional goals. Id. at 563-66; see also Hines v. Gomez, 108 F.3d 265, 268 (9th Cir. 1997); McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986). If a prisoner is illiterate or the issues are so complex so as to make it unlikely that the inmate will be able to collect and present the evidence necessary, the prisoner may be able to seek help from a fellow inmate or help from correctional staff. Id. at 570. "Findings that result in the loss of liberty will satisfy due process if there is some evidence which supports the decisions of the disciplinary board." Zimmerlee v. Keeney, 831 F.2d 183 (9th Cir. 1987). See also Edwards v. Balisok, 520 U.S. 1584, 1589 (1997); Burnsworth v. Gunderson, 179 F.3d 771, 773 (9th Cir. 1999); Hines v. Gomez, 108 F.3d at 268.
V. The Eighth Amendment and Cruel and Unusual Punishment
The "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment prohibited by the United States Constitution. Whitley v. Albers, 475 U.S. 312, 319 (1986). See also Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). However, neither accident nor negligence constitutes cruel and unusual punishment, because "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley, 475 U.S. at 319. What is needed to show unnecessary and wanton infliction of pain "varies according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citing Whitley, 475 U.S. at 320). Plaintiff must allege facts showing that objectively he suffered a sufficiently serious deprivation and that subjectively each defendant had a culpable state of mind in allowing or causing the plaintiff's deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants' statement of undisputed facts is supported by citations to copies of the rules violation report ("RVR") issued to plaintiff, copies of crime/incident reports, and copies of plaintiff's inmate appeals and prison officials responses thereto. It is also supported by citations to copies of confidential memoranda from plaintiff's central prison file.
Defendants have requested that the court review confidential memoranda from plaintiff's central file, referenced as Exhibit B in support of defendants' motion for summary judgment, in camera and file the memoranda under seal. Good cause appearing, the court will grant defendants' request and order that Exhibit B be maintained under seal until further ordered by the court.
The evidence submitted by defendants on summary judgment establishes the following. At all relevant times, plaintiff was a state prisoner at HDSP. At all relevant times, defendants Officer Crandall, Lieutenant Davey, Lieutenant Ivicevich, Captain Johnson, Officer Marsh, Lieutenant Marshall, and Chief Disciplinary Officer Wong worked at HDSP. Defendant Special Agent Marquez worked at the CDCR's Law Enforcement Investigation Unit ("LEIU") in Sacramento. (Defs.' SUDF 1-2, Third Am. Compl.)
On January 24, 2005, defendant Davey received information from a confidential informant that black inmates were targeting several staff members at HDSP. The informant also provided defendant Davey with a stabbing weapon made of flat, grey metal, and measuring 2 ½ inches in length and 3/4 inch wide. The end of the weapon had been sharpened to a point, but it did not have a handle. Defendant Davey turned the weapon over to the Investigative Service Unit for processing. (Defs.' SUDF 3, Ex. A.)
The confidential informant provided detailed information about the planned assault on staff by black inmates. The informant indicated that the black inmates were upset because they believed that prison staff had set them up for assault by white inmates. After staff received this information, they began a mass search of C-Facility, Units 7 and 8 at HDSP. During the search, they discovered several inmate-manufactured weapons. That same day, prison officials contacted LEIU to complete a threat assessment at HDSP regarding the alleged conspiracy by Crip and Blood associates to assault or kill correctional officers at the institution. Defendant Marquez was assigned to assess the purported threat. (Defs.' SUDF 4-8, Exs. A & B.)
On February 1, 2005, defendant Marquez began meeting with several inmates and staff members. Initially, defendant Marquez met with the confidential informant who had provided information to staff. The informant provided the same information to defendant Marquez and confirmed that plaintiff was part of the plot. The informant also revealed that the staff members targeted for assault were Captain Johnson, Lieutenant Davey, Sergeant St. Andre, and Officers Ginder and Zills. On February 11, 2005, defendant Marquez interviewed plaintiff. Plaintiff refused to participate in an audio-taped interview. Although plaintiff admitted to being an influential member of the Bloods disruptible group, he denied any knowledge of an inmate plan to assault staff. (Defs.' SUDF 9-10, Ex. B.)
Based on these interviews that defendant Marquez conducted and a review of documentary evidence, defendant Marquez determined that there was "in fact a threat to the aforementioned targeted staff by Black inmates identified as having disruptive group gang affiliations." In addition, at least one of the conspirators had begun compiling weapons to use against the staff members. Defendant Marquez recommended that staff initiate disciplinary reports against the suspects, including plaintiff, and any other inmate deemed to have been a part of a plan or conspiracy to assault staff. Defendant Johnson received additional reliable information that black inmates blamed staff for playing a part in the riot and that plaintiff was a part of the plot to kill a staff member. (Defs.' SUDF 11-12, Ex. B.)
On April 4, 2005, staff completed the investigation into the conspiracy to murder peace officers on Facility C at HDSP. Staff had gathered information that provided evidence showing that inmates were conspiring to murder peace officers. According to the information, the assault would take place after staff completed the controlled release of black inmates from the lock-down. Inmates were planning to lure staff into vulnerable areas of the prison, such as dining halls, the education rooms, and the canteen. Inmates would stage a mock fight, and when responding staff arrived the conspirators would attack pre-determined officers. They planned to stab officers in the face, neck, and groin to circumvent their protective vests. Again, plaintiff was one of the inmates implicated in the conspiracy. (Defs.' SUDF 13, Ex. A.)
The prison disciplinary charge of conspiracy requires that: (1) two or more individuals be involved; (2) the proof of planning; and (3) an overt act. Plaintiff met these conspiracy charge criteria. The plan to murder staff had been "clearly formulated describing how the battery was to begin and that these assaults were to be completed in a way to kill staff." (Defs.' SUDF 14, Ex. A.)
On April 4, 2005, prison officials issued plaintiff an RVR for conspiracy to murder a peace officer and later found him guilty of the charge. On June 7, 2005, defendant Wong ordered the disciplinary violation re-issued and re-heard because, although plaintiff had received all of the necessary paperwork prior to the disciplinary hearing, there was no issuance date given. After plaintiff was found guilty of the prison rules violation a second time, on September 7, 2005, defendant Wong ordered the prison disciplinary violation re-issued and reheard again because
[t]he original documents were re-issued to Bridges, however, Bridges was not afforded all rights and procedural safeguards as directed by CCR 3313(c)(4)(A) as the Senior Hearing Officer utilized the same Investigative Employee and Staff Assistant information used in the original hearing. Additionally, there is no(Defs.' SUDF 15-19, Ex. A.)
indication in the hearing that Bridges agreed to use the same IE report and SA information from the original hearing.
On September 22, 2005, Officer Feliciano was assigned as plaintiff's investigative employee. When plaintiff objected, defendant Crandall was assigned as plaintiff's investigative employee. On November 16, 2005, Officer Quezada was assigned as plaintiff's staff assistant. As plaintiff's investigative employee, defendant Crandall interviewed plaintiff and asked if he had any questions to add to the original report. Plaintiff's response was, "make sure that the last fool (indicating Officer Feliciano) who was assigned as the original IE is at the CDC-115 hearing." Plaintiff also stated that he wanted defendant Crandall at the disciplinary hearing. (Defs.' SUDF 20-22, Ex. A.)
On December 29, 2005, defendant Ivicevich conducted the disciplinary hearing on the RVR issued to plaintiff. Plaintiff had given defendant Crandall additional questions to ask, but then told defendant Crandall to ask only three of those questions. When defendant Crandall explained this at the hearing, defendant Ivicevich suspended the hearing. On January 1, 2006, plaintiff was afforded an opportunity to attend the disciplinary hearing again and did so. At the beginning of that hearing defendant Ivicevich asked plaintiff if he needed any additional investigative employee information, and plaintiff stated that he did not. Defendant Ivicevich told plaintiff that if there were any outstanding issues he would suspend the hearing and seek further information. Plaintiff stated again that he was satisfied with the investigative report. (Defs.' SUDF 23-24, Ex. A.)
Plaintiff pled "not guilty" to the prison disciplinary charge, and provided a written statement setting forth a list of objections to various stages of the disciplinary violation process. Plaintiff was provided an opportunity to call witnesses, and plaintiff submitted a list of questions to ask them. Defendant Ivicevich stipulated to much of the testimony, denied the request to hear some testimony as irrelevant, and had some of the requested witnesses testify at the hearing. During the disciplinary hearing, plaintiff stated that he did not want several of the witnesses to appear. (Defs.' SUDF 25, Ex. A.)
Defendant Ivicevich considered all of the evidence, including written documentation and witness testimony as well as confidential documents, the memorandum issued by defendant Marquez implicating plaintiff in the conspiracy, crime/incident reports, and written information submitted by plaintiff. Based on a preponderance of the evidence, defendant Ivicevich concluded that plaintiff met the three components of the conspiracy charge. Defendant Ivicevich found that there was evidence of planning and agreement by plaintiff, and there was an overt act because the conspirators were acquiring weapons. Defendant Ivicevich also found that "a conspiracy was contrived, [Plaintiff] along with the other inmates . . . conspired and agreed to Murder Peace Officers. The conspiracy entailed a detailed plan, in which the attack on peace officers would continue until staff were assaulted with the intent to murder." Plaintiff was found guilty of the disciplinary charges but did not incur a credit loss because of failure to meet time constraints. (Defs.' SUDF 26, Ex. A.)
On January 26, 2006, plaintiff filed an inmate appeal claiming defendant Ivicevich violated his due process rights. Plaintiff requested dismissal of the disciplinary violation and that any reference to the incident be stricken from his records. He also requested that prison officials restore any time and credit loss. Prison officials bypassed the inmate appeal at the informal and first formal levels of review. On March 30, 2006, Chief Deputy Warden Sisto granted plaintiff's appeal in part at the second level of review. (Defs.' SUDF 27-28, Ex. A.)
ANALYSIS
In the pending motion for summary judgment, defense counsel argues that: (1) plaintiff's claims against defendants Davey, Johnson, and Marquez are barred by the statute of limitations; (2) plaintiff has failed to allege sufficient facts to support a conspiracy claim; (3) plaintiff has failed to establish that defendant Davey retaliated against him; (4) plaintiff's due process claim fails because he received all the process he was due, and prison officials based their finding that plaintiff was guilty of the disciplinary charge on some evidence. Alternatively, defense counsel argues that the defendants are entitled to qualified immunity. The court will address each of these arguments in turn.
I. Statute of Limitations
Defense counsel argues that plaintiff's claims against defendants Davey, Johnson, and Marquez are barred by the applicable statute of limitations because plaintiff had until March 2009 at the latest to file this civil action but did not file his complaint until April 6, 2009. (Defs.' Mem. of P. & A. at 5-6.) The court finds this argument unpersuasive.
Defense counsel is correct that plaintiff had four years from the date his claims accrued to file his civil rights action. See Lukovsky v. City and County of S.F., 535 F.3d 1044, 1048-49 (9th Cir. 2008); Jones v. Blanas, 393 F.3d 918, 927-28 (9th Cir. 2004); see also Cal. Civ. Code § 352.1. However, as plaintiff argues in his opposition, "the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process." Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).
Here, defense counsel has not taken into account the five months that plaintiff pursued his inmate appeals concerning the allegations in this case. Plaintiff commenced the inmate appeal process on January 26, 2006. (Defs.' SUDF 27-28 & Ex. A.) Plaintiff concluded the process when he received the director's level of review decision on or about July 13, 2006. (Pl.'s Mem. of P. & A. in Opp'n to Defs.' Mot. for Summ. J. Ex. A.) If the five months of the statute of limitations for the time plaintiff pursued his inmate appeals is tolled as required, then plaintiff timely filed this action even under defendants' calculation. Accordingly, defendants' motion for summary judgment based on the statute of limitations should be denied.
II. Plaintiff's Conspiracy Claim
Defense counsel argues that plaintiff has failed to identify any facts or evidence to support a conspiracy claim against defendants. (Defs.' Mem. of P. & A. at 12-13.) The court agrees. In his third amended complaint, plaintiff claims that the defendants engaged in a civil conspiracy to deprive him of his Fourteenth Amendment rights and maintains that, as a direct result of their conspiracy, he did not receive due process at his disciplinary hearing and was subjected to a 48-month SHU term. (Third Am. Compl. at 14-15.)
Here, plaintiff's conspiracy claim is entirely speculative. Although he has alleged that the defendants engaged in a conspiracy, plaintiff has not produced any evidence to show or even suggest that the defendants reached any sort of agreement or had a meeting of the minds to violate his constitutional rights at his disciplinary hearing or otherwise. See Franklin, 312 F.3d at 441; Woodrum, 866 F.2d at 1126 (affirming district court's dismissal under Rule 12(b)(6) where plaintiff provided only conclusory allegations of conspiracy); William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014, 1055 (9th Cir. 1981) (defendants must have "reached 'a unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful arrangement.'"); Perkins v. Kemalyan, No. CV 09-7439, 2010 WL 6416247 at *5 (C.D. Aug. 6, 2010) ("Our jurisprudence requires more than labels of a conspiracy; it requires factual content."); Williams v. Foote, No. CV 08-2838 CJC (JTL), 2009 WL 1520029 at *13 (C.D. Cal. May 28, 2009) ("Although plaintiff claims that defendant Brochu 'conspired' with defendant Foote in the 'falsified investigation' and 'co[rrobor]ated the confidential information forcing a wrongful conviction,' and that defendants issued the RVR charging him with attempted murder of a peace officer solely based on confidential information they deemed reliable, plaintiff fails to allege specific facts of an agreement or meeting of the minds to violate plaintiff's constitutional rights.").
At most, plaintiff argues in his opposition to the pending motion for summary judgment that defendant Davey told him during his interrogation "If any shit starts on the lower yard we'll get you, any way we can, we'll get you." (Pl.'s Mem. of P. & A. in Opp'n to Defs.' Mot. for Summ. J. at 15.) Plaintiff contends that defendants subsequently accused him of the conspiracy and convicted him of the fabricated charge. (Id.) However, defendant Davey's alleged statement and the ensuing events are far too attenuated to show that each of the defendants shared a common objective in any unlawful agreement against plaintiff. Nor has plaintiff offered any factual support or circumstantial evidence from which this court could infer that each defendant had knowledge of or participated in any unlawful agreement against plaintiff. As observed above, the court should enter summary judgment after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 322. Under the circumstances of this case, plaintiff has failed to establish or offer any evidence from which this court could infer that defendants reached any agreement to violate his constitutional rights. Accordingly, the defendants' motion for summary judgment in their favor on plaintiff's conspiracy claim should be granted.
III. Plaintiff's Retaliation Claim
Defense counsel argues that plaintiff has failed to establish that defendant Davey retaliated against plaintiff for engaging in any "protected conduct." (Defs.' Mem. of P. & A. at 13-14.) The court finds this argument unpersuasive.
In his third amended complaint, plaintiff alleges that defendant Davey summoned him to the program office for an interrogation, but when plaintiff refused to answer the defendant Davey's questions he threatened to transfer plaintiff and did, in fact, later transfer him to the C-yard where hate crimes against black inmates took place. According to plaintiff, defendant Davey also had plaintiff placed in ad-seg and added plaintiff's name to a list to deny him participation in a program designed to return inmates to regular programming, including outdoor exercise. (Third Am. Compl. (Doc. No. 35) at 14.)
Defense counsel cites no authority for the proposition that plaintiff's refusal to answer defendant Davey's questions during an investigation does not constitute "protected conduct." In prisoner civil rights cases, the "protected conduct" involved in a retaliation claim often arises from a prisoner filing complaints or administrative grievances at the prison or pursuing civil rights litigation in court. See, e.g., Rhodes, 408 F.3d 559. However, the Supreme Court has long recognized that "the Government may not retaliate for exercising First Amendment speech rights or certain others of constitutional rank." Wilkie v. Robbins, 551 U.S. 537, 555-56 (2007) (citing Lefkowitz v. Turley, 414 U.S. 70 (1973) (Fifth Amendment privilege against self-incrimination)). In this case, the court finds that plaintiff was engaged in "protected conduct" for purposes of a retaliation claim when he exercised both his First Amendment right not to speak in response to defendant Davey's questions and his Fifth Amendment right against self-incrimination. See Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796-98 (1988) ("the First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say."); United States v. Bodwell, 66 F.3d 1000, 1001 (9th Cir. 1995) ("The Fifth Amendment 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.'") (quoting Kastigar v. United States, 406 U.S. 441 (1972)).
Defense counsel also argues that by the time plaintiff was placed in administrative segregation, prison officials had already implicated him in a conspiracy to murder peace officers. In this regard, counsel contends that any alleged adverse action taken against plaintiff served the legitimate penological purpose of protecting staff. Once more, the court finds this argument unpersuasive. To be sure, preserving institutional order, discipline, and security are legitimate penological interests that, if they provide the motivation for an official act taken, will defeat a retaliation claim. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). However, as plaintiff argues in his opposition, "prison officials may not defeat a retaliation claim on summary judgment simply by articulating a general justification for a neutral process, when there is a genuine issue of material fact as to whether the action was taken in retaliation for the exercise of a constitutional right." Bruce, 351 F.3d at 1289-90.
Here, if defendant Davey took the alleged adverse actions against plaintiff as "a cover or a ruse" to retaliate against him for his refusal to answer questions during defendant Davey's investigation, the defendant cannot now assert that his actions served legitimate correctional goals. See Bruce, 351 F.3d at 1289 ("But, if, in fact, the defendants used the gang validation procedure as a cover or a ruse to silence and punish Bruce because he filed grievances, they cannot assert that Bruce's validation served a valid penological purpose, even though he may have arguably ended up where he belonged.") (citing Rizzo, 778 F.2d at 532).
Finally, the court observes that plaintiff's evidence satisfies the remaining prongs of a retaliation claim sufficiently to defeat summary judgment. As to the adverse action prong, defendant Davey's alleged threat to transfer plaintiff followed by his actually transferring plaintiff to the C-yard where attacks against black inmates took place, satisfies the adverse action requirement. See Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009). Likewise, defendant Davey's placing of plaintiff in ad-seg and adding plaintiff's name to a list to deny him participation in a program designed to return inmates to regular programming, also satisfy the adverse action requirement. As to causation, plaintiff has offered evidence in the form of threats by defendant Davey and suspect timing to show that defendant Davey was substantially motivated to act by or because of plaintiff's engagement in protected conduct. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) ("timing can properly be considered as circumstantial evidence of retaliatory intent."). As noted above, during his interrogation defendant Davey allegedly told him "If any shit starts on the lower yard we'll get you, any way we can, we'll get you." (Pl.'s Decl. (Doc. No. 119 at 46) at 2.) In his verified complaint plaintiff states that defendant Davey also purportedly threatened to move plaintiff to the upper C-yard if he did not participate in the investigation, and when plaintiff refused to answer his questions the defendant "followed through" on that threat and moved plaintiff. (Third Am. Compl. (Doc. No. 35) at 6 & 13.)
This evidence is by no means conclusive of retaliatory motive. However, viewing the facts in the light most favorable to plaintiff, the statements allegedly made by defendant Davey combined with the timing of events are sufficient to raise a triable issue of fact regarding defendant Davey's motives. See Bruce, 351 F.3d at 1289 (statements and suspect timing raised triable issue of fact regarding whether the defendants' motive behind plaintiff's gang validation was retaliatory). Lastly, as to the chilling effect on plaintiff's exercise of his constitutional rights, the Ninth Circuit has explained that the proper analysis of such a claim prohibits the focusing on whether a plaintiff was actually chilled in the exercise of his constitutional rights. See Brodheim, 584 F.3d 1271. Rather, an objective standard governs the chilling inquiry. Id. Here, the court cannot say as a matter of law that a reasonable person would not have been chilled in the exercise of his constitutional rights by defendant Davey's alleged threats and conduct directed at plaintiff.
In short, the undersigned finds that plaintiff has submitted sufficient evidence establishing a legitimate dispute as to a genuine issue of material fact with respect to his retaliation claim against defendant davey. Accordingly, defendants' motion for summary judgment on plaintiff's retaliation claim against defendant Davey should be denied.
In the pending motion for summary judgment, defense counsel argues that the defendants are entitled to qualified immunity. However, counsel's argument is conclusory and appears to be directed solely at a due process claim that counsel believed plaintiff was asserting. (Defs.' Mem. of P. & A. (Doc. No. 91) at 14-15.) In any event, even if counsel intended to argue that defendant Davey is entitled to qualified immunity with respect to plaintiff's retaliation claim, for the reasons discussed above the facts alleged in the verified complaint taken in the light most favorable to the plaintiff demonstrate that defendant Davey's conduct violated plaintiff's rights under the First Amendment. Moreover, the state of the law when the alleged constitutional violations took place would have given defendant Davey fair warning that he could not retaliate against plaintiff for engaging in protected activity. As early as 1995, "the prohibition against retaliatory punishment [was] clearly established law in the Ninth Circuit for qualified immunity purposes." See Pratt, 65 F.3d at 806.
IV. Plaintiff's Fourteenth Amendment Due Process Claim
Defense counsel next argues that plaintiff's Fourteenth Amendment due process claim fails because plaintiff received all the process to which he was due in connection with his disciplinary hearing and prison officials based their guilty finding on "some evidence" as required. (Defs.' Mem. of P. & A. (Doc. No. 91) at 7-12.) However, in his third amended complaint, plaintiff has not asserted any due process claim. Specifically, plaintiff expressly states in his complaint that his first cause of action is for retaliation, his second cause of action is for civil conspiracy, and his third cause of action is a claim that he was subjected to cruel and unusual punishment. (Third Am. Compl. (Doc. No. 35) at 14-16.) In his opposition to defendants' motion for summary judgment, plaintiff also makes clear that the "causes of action" in this civil rights case are "whether the defendants retaliated and/or conspired against Bridges and/or violated his Eighth Amendment rights." (Pl.'s Mem. of P & A. in Opp'n to Defs.' SUDF at 2 (Doc. No. 119 at 26).) In this regard, plaintiff contends that "defendants' undisputed facts and evidence submitted on summary judgment - in total - have no relevance and are not material to the assertions and causes of action in this civil rights case." (Id.) Plaintiff emphasizes that "whether Bridges was, or was not, part of any conspiracy of which prison officials eventually found him guilty of is not material, nor determinative, of the matters before this Court." (Id.) This court has likewise recognized plaintiff's claims against defendants as ones for retaliation, civil conspiracy, and cruel and unusual punishment. (See Order Filed Mar. 26, 2013 (Doc. No. 101) at 2.)
Accordingly, defendants' motion for summary judgment on plaintiff's due process claims should be denied as unnecessary.
V. Plaintiff's Eighth Amendment Claim
Defense counsel does not address plaintiff's Eighth Amendment claim in the pending motion for summary judgment. However, the court will do so sua sponte. In his third amended complaint, plaintiff claims that defendants subjected him to cruel and unusual punishment because, as a result of their conspiracy, he was required to serve a 48-month SHU term under harsh conditions at Corcoran State Prison. (Third Am. Compl. (Doc. No. 35) at 16.)
The court finds that plaintiff's allegations do not state a cognizable claim under the Eighth Amendment. See 28 U.S.C. § 1915(e)(2)(B)(ii). As an initial matter, it is now clear that plaintiff is complaining about his conditions of confinement at Corcoran State Prison. None of the defendants were employed at Corcoran State Prison nor were they responsible for the conditions or policies in place at that prison. Moreover, plaintiff has not even alleged that the defendants who worked at HDSP knew of and disregarded an excessive risk of harm to plaintiff's health and safety at Corcoran State Prison. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Finally, even if plaintiff could somehow link the defendants to the conditions of his confinement at Corcoran State Prison, this court must give prison officials "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). It is well established that "administrative segregation . . . is within the terms of confinement ordinarily contemplated by a sentence." Id. at 1316. Such conditions, including confinement in a cell for most of the day, do not violate the Eighth Amendment. Id.; see also Perkins v. Crum, No. 11-16903, 2012 WL 3301023 at *1 (9th Cir. Aug. 8, 2012) (district court properly dismissed Eighth Amendment claim regarding conditions in SHU); Pina v. Scavetta, No. 10-16749, 2012 WL 210883 at *1 (9th Cir. 2012) (same).
Citations to these latter unpublished decisions is appropriate pursuant to Ninth Circuit Rule 36-3(b).
Because plaintiff's third amended complaint fails to state a cognizable claim under the Eighth Amendment, that claim should be dismissed. See Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987) ("A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6).") Moreover, for the reasons set forth above, plaintiff cannot possibly win relief on such a claim against the named HDSP defendants and therefore the granting of leave to amend would be futile under these circumstances. Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990) ("It is not an abuse of discretion to deny leave to amend when any proposed amendment would be futile.")
Plaintiff is thus put on notice by this recommendation of the court's intention to dismiss his Eighth Amendment claim. If plaintiff wishes to argue against dismissal of that claim, he should present any such argument in his written objections to these findings and recommendations for consideration by the assigned District Judge. In this manner, plaintiff is being afforded an opportunity to oppose dismissal of his Eighth Amendment claim. See Lee v. City of Los Angeles, 250 F.3d 668, 683 n.7 (9th Cir. 2001).
OTHER MATTERS
In a footnote in plaintiff's opposition to defendants' motion for summary judgment, he "expressly seeks continuance of Defendants' summary judgment motion for the purpose of obtaining discovery." (Pl.'s Mem. of P. & A. at 4 n.1.) The court has construed plaintiff's request as a motion for relief under Federal Rule of Civil Procedure 56(d) (formerly Rule 56(f)). Under Rule 56(d), "[t]he burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show that the evidence sought exists." Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416 (9th Cir. 1987). See also Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306 n.1 (9th Cir. 1986) (holding that the party opposing summary judgment "has the burden under Rule 56[d] to show what facts [he] hopes to discover to raise an issue of material fact"). Here, plaintiff has failed to make the requisite showing that he is entitled to relief under Rule 56(d). Specifically, in his request, plaintiff does not explain what specific facts he hopes to discover that could raise an issue of material fact in this case. See Harris v. Duty Free Shoppers Ltd. P'ship, 940 F.2d 1272, 1276 (9th Cir. 1991); Carpenter v. Universal Star Shipping, S.A., 924 F.2d 1539, 1547 (9th Cir. 1991). Accordingly, plaintiff's Rule 56(d) motion will be denied.
CONCLUSION
IT IS HEREBY ORDERED that:
1. Defendants' request that confidential memoranda from plaintiff's central file, referenced as Exhibit B in support of defendants' motion for summary judgment, be reviewed by the court in camera and filed under seal (Doc. No. 93) is granted;
2. The Clerk of the Court is directed to file under seal the confidential memoranda from plaintiff's central file, referenced as Exhibit B in support of defendants' motion for summary judgment, until further ordered by the court; and
3. Plaintiff's Rule 56(d) motion (Doc. No. 119) is denied.
IT IS HEREBY RECOMMENDED that:
1. Defendants' motion for summary judgment (Doc. No. 91) be granted in part and denied in part as follows:
a. Defendants' motion for summary judgment based on the statute of limitations be denied;
b. Defendants' motion for summary judgment on plaintiff's conspiracy claim be granted;
c. Defendants' motion for summary judgment on plaintiff's retaliation claim against defendant Davey be denied;
d. Defendants' motion for summary judgment on plaintiff's due process claims be denied as unnecessary; and
e. Defendants' motion for summary judgment based on the affirmative defense of qualified immunity be denied.
2. Plaintiff's Eighth Amendment Cruel and Unusual Punishment claim be dismissed for failure to state a claim;
3. Defendants Crandall, Ivicevich, Johnson, Marquez, Marsh, Marshall, and Wong be dismissed from this action; and
4. This matter be referred back to the undersigned for further proceedings on plaintiff's retaliation claim against defendant Davey.
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)(l). Within fourteen 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 reply to the objections shall be served and filed within seven 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).
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DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE