Opinion
No. 2:16-CV-1925-TLN-DMC-P
03-22-2021
COREY JEROME ELDER, Plaintiff, v. SILVA, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court are Defendants' motion for summary judgement, ECF No. 34, Plaintiff's opposition, ECF No. 36, and response, ECF No. 37, and Defendants' reply, ECF No. 39. / / / / / / / / / / / / / / / / / / / / / / / /
I. BACKGROUND
A. Plaintiff's Allegations
This action proceeds on Plaintiff's first amended complaint. See ECF No. 16. Plaintiff names seven defendants employed at High Desert State Prison: (1) Correctional Officer (C/O) Silva, (2) C/O Joksch, (3) C/O Whitcome, (4) Correctional Sergeant (Sgt.) Speers, (5) Sgt. Brackett, (6) Correctional Lieutenant (Lt.) Ramsey, and (7) Lt. Hogan. See id.
Defendant Brackett is erroneously named as "Bradett."
Though Plaintiff's narrative of the facts jumps forward and backward in time, the following outline of Plaintiff's allegations is arranged chronologically.
July 2014
According to Plaintiff, two weeks after his arrival at High Desert State Prison on July 8, 2014, Defendant Silva issued plaintiff his personal property on July 22, 2014. See ECF No. 16 at 4. At that time, Defendant Silva informed Plaintiff that a few items were disallowed, including Plaintiff's posters. See id. Plaintiff alleges Defendant Silva told Plaintiff that he had three days to put enough money in his trust account to have the posters sent home before the prison disposed of them. See id. Plaintiff gathered the funds within three days, but his posters had been disposed of anyway. See id. Plaintiff subsequently filed a grievance against Defendant Silva for prematurely disposing of his posters. See id.
September 2014
On September 7, 2014, Plaintiff did not receive lunch and asked Defendant Joksch if he could retrieve it. See id. at 5. Defendant Joksch allegedly responded, "[y]ou like to write up staff and complain like a little bitch, so fuck your state lunch!" Id. Plaintiff filed a grievance against Defendant Joksch the same day. See id.
On the following day, September 8, 2014, Defendant Joksch allegedly ordered Plaintiff: "Pack up your shit your [sic] moving with a gang member. You need to learn a fucking lesson!" Id. Plaintiff asked Defendant Joksch why he was being moved, leading Defendant Joksch to respond: "I'll show you how we deal with problems up here." Id. Defendant Joksch subsequently reported a rules violation against Plaintiff for "willfully delaying a peace officer by refusing assigned housing." Id.
October 2014
On October 6, 2014, Defendant Speers interviewed Plaintiff for his first grievance regarding his posters. Id. Plaintiff explained that Defendant Silva gave him three days to fund his trust account and provided Defendant Speers with a property receipt showing Plaintiff never signed nor agreed to donate or destroy his confiscated property. See Id. Defendant Speers allegedly responded multiple times by stating: "Well, my officer fucked up." Id.
On October 17, 2014, Defendant Ramsey interviewed Plaintiff regarding the rule violation report issued by Defendant Joksch. See id. Plaintiff expressed that he believed Joksch's disciplinary action was in retaliation for Plaintiff's complaint against him. See id. Defendant Ramsey ruled against Plaintiff and imposed a penalty of ninety days loss of credit and suspended privileges. See id. at 6. Although not included in the penalties imposed by defendant Ramsey, Plaintiff was denied access to the yard and dayroom, and was confined to his cell for twenty consecutive days. See id. During Plaintiff's confinement, he complained to Defendant Whitcome, who told Plaintiff, "this is not a place for 'whiners' or 'complainers.'" See id. at 5.
November 2014
On November 17, 2014, Correctional Counselor D. Clark interviewed Plaintiff regarding his rules violation appeal. See id. Plaintiff explained that he was wrongly confined to quarters and that the retaliation he experienced made him afraid for his safety. D. Clark allegedly responded to plaintiff by stating: "your [sic] lucky it isn't worse." Id.
February 2015
On February 18, 2015, Defendant Brackett ordered Plaintiff and his cellmate to the showers and seized Plaintiff's legal documents from his cell for a "future search." Id. / / / / / / / / / / / / / / /
The following summarizes Plaintiff's claims by defendant:
Silva Plaintiff claims Defendant Silva improperly destroyed his property in July 2014, conduct for which Plaintiff filed a grievance. See id. at 4./ / / / / /
Joksch Plaintiff claims that he didn't receive a state-provided sack lunch on September 7, 2014, and that, when he asked Defendant Joksch about it, Defendant Joksch said: "You like to write up staff and complain like a little bitch, so fuck your state lunch!" Id. at 5. Plaintiff further claims that, the next day, Defendant Joksch gave Plaintiff the following order: "Pack up your shit your [sic] moving with a gang member." Id. According to Plaintiff, Defendant Joksch also stated: "You need to learn a fucking lesson!" Id. When Plaintiff asked Defendant Joksch why he was suddenly being moved, Defendant Joksch allegedly said: "I'll show you how we deal with 'problems' up here." Id. Plaintiff also alleges that, for simply asking why he was being moved, Defendant Joksch issued Plaintiff a rules violation report for willfully delaying a peace officer by refusing assigned housing. See id.
Whitcome Plaintiff claims that, upon attempting to enter the yard and dayroom, he asked Defendant Whitcome about the loss of yard and dayroom privileges assessed by Defendant Ramsey and Defendant Whitcome said: "This is not a place for 'whiners' or 'complainers.'" Id. Plaintiff states that he remained "confined to quarters" for 20 consecutive days. Id.
Speers Plaintiff states Defendant Speers interviewed him in October 2014 regarding the grievance he filed following Defendant Silva's alleged destruction of his property. See id. at 4. According to Plaintiff, after he explained to Defendant Speers what Defendant Silva had done, Defendant Speers responded: "Well, my officer fucked up." Id. at 4.
Brackett Plaintiff states that, when he and his cellmate were taken out of their cell and "placed in the shower," Defendant Brackett took Plaintiff's legal materials for a "future search." Id. at 6. When Plaintiff asked Defendant Brackett about this, Defendant Brackett allegedly responded: "This is your last 'warning.'" Id.
Ramsey Plaintiff alleges that, on October 17, 2014, Defendant Ramsey presided over the hearing on the rules violation report issued by Defendant Joksch for refusing a housing assignment. See id. at 5. Plaintiff states that he was found guilty of the rules violation and assessed "90 days loss of credit" and other privileges. Id. at 5.
Hogan Plaintiff's first amended complaint contains no allegations relating to Defendant Hogan. See e.g. id.
B. Procedural History
Plaintiff filed the original complaint against all defendants herein and Warden R. St. Andre on July 21, 2016, alleging multiple constitutional violations. See ECF No. 1. On November 15, 2018, the Court granted Plaintiff leave to amend the complaint's non-cognizable claims. See ECF No. 15. In that order, the Court identified three potential claims: (1) destruction of property, in violation of the Due Process Clause of the Fourteenth Amendment; (2) retaliation in violation of the First Amendment; and (3) improper search and seizure. See id.
On December 17, 2018, Plaintiff filed his first amended complaint, omitting all claims against St. Andre. See ECF No. 16. The Court ordered service on the remaining defendants for various claims including: (1) retaliation, in violation of the First Amendment; and (2) deliberate indifference, in violation of the Eighth Amendment. See ECF Nos. 17, 19. On April 29, 2020, Defendants filed their motion for summary judgment. See ECF No. 34.
II. STANDARD FOR SUMMARY JUDGEMENT
The Federal Rules of Civil Procedure provide for summary judgment or summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). / / /
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); see also 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, 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, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). To demonstrate that an issue is genuine, 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 non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that "the claimed factual dispute be shown to require a trier of fact to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631.
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and 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). Ultimately, "[b]efore the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251.
III. THE PARTIES' EVIDENCE
Defendants' motion for summary judgment is supported by the following:
DX A The sworn of declaration H. Cervantez. See ECF No. 34-3, pgs. 8-70.
DX B The California Department of Corrections and Rehabilitation (CDCR) Operations Manual excerpt dated January 1, 2014. See id. at 71-73.
DX C Transcript excerpts of the deposition of Corey Jerome Elder dated January 10, 2020. See id. at 74-76.
DX D The sworn declaration of S. Barnes. See id. at 77-87.
DX E Unpublished cases provided to Plaintiff in accordance with the local rules. See id. at 88-108.
Plaintiff's opposition to the motion for summary judgment is supported by:
Exhibit 1 Plaintiff's comprehensive accommodation chrono form dated September 4, 2009. See ECF No. 37, pgs. 30-31./ / / / / / / / / / / / / / / / / / / / / / / / / / / / / /
Exhibit 2 A cell search receipt dated February 18, 2015. See id. at 38-39.
Exhibit 3 Plaintiff's CDCR level of care decision form. See id. at 40-42.
In further support of their motion, Defendants have submitted a Statement of Undisputed Facts (DUF), ECF No. 34-3, pgs. 1-7, and Plaintiff has submitted his responses, see ECF No. 37, pgs.1-12. The following summarizes these filings:
The Court notes that DUF 32 appears to be missing. Also, Plaintiff sometimes refers to himself as "petitioner."
| Defendants' Statement | Plaintiff's Response |
| 1. Plaintiff, Corey Jerome Elder (F-10489) is astate prisoner in the custody of theCalifornia Department of Corrections andRehabilitation (CDCR). (Defendants' ExhibitA (DX A), Attachment 1, decl. of H. Cervantesand documents from Plaintiff's central file, p.2-5.) Plaintiff was housed at High Desert StatePrison (HDSP) at times material to the mattersat issue.(DX A-1, p. 2.) | 1. Admit. |
| 2. Defendants are employees of CDCR, andwere assigned to HDSp in the followingpositions: Defendants Hogan and Ramseywere Correctional Lieutenants; DefendantsSpeers and Brackett were CorrectionalSergeants; and Defendants Silva, Joksch, andWhitcome were Correctional Officers atHDSP, and were assigned to HDSP at all timesmaterial to the matters at issue.(First Amended Compl. at § III.) | 2. Admit. |
| 3. Plaintiff arrived at HDSP on July 8, 2014, asan adverse transfer due an increase in hisclassification score.(DX A-1, p. 2.) | 3. Admit. |
| 4. Plaintiff appeared for his initialclassification committee hearing on July 15,2014, during which time the committee foundthat Plaintiff was eligible for double-cellhousing.(DX A, p. 6-7.) | 4. Admit. |
| Defendants' Statement | Plaintiff's Response |
| 5. Following his assignment to C-Facility, Unit8, cell 132, upper bunk, Plaintiff was issuedhis property.(DX A-1, p. 7.) | 5. Deny. In defendant's [sic] exhibit marked,DXA-010 petitioner signed and dated theproperty receipt on 7-22-2014. A full twoweeks after petitioner had arrived. |
| 6. According to the property receipt, Plaintiffreceived four boxes of property on July 22,2014, but he was denied his hair and nailclippers, a red prayer rug, and posters. Thoseitems were donated because Plaintiff did nothave adequate funds in his trust account tosend them out.(DX A-1, p. 9-10, 19.) | 6. Deny. Again, on defendant's [sic] exhibitmarked, DXA-010 there is no signature in thebox marked "Inmate Signature" wherepetitioner was suppose [sic] to have signed.Petitioner's signature is only in the box wherehe received 4 boxes of his property. |
| 7. On August 12, 2014, Plaintiff submitted arequest for interview claiming that he waswaiting for some portraits to be sent home.(DX A-1, p. 10(a).) | 7. Admit. |
| 8. Plaintiff received a response on August 19,2014, indicating there was nothing in thecomputer system showing that Plaintiff hadproperty that was mailed home.(DX A-1, p. 10(a).) | 8. Admit. |
| 9. That same day Plaintiff filed a grievanceclaiming that he was told when his propertywas received that he could not have hisportraits or drawings, and he wanted them sentto his attorney. Plaintiff did not allege that hewas told his paintings would be held until hereceived money from home. As his requesteddisposition, Plaintiff again requested that hisproperty be sent to his attorney.(DX A-1, p. 11.) | 9. Admit. |
| 10. Plaintiff does not know who donated ordestroyed his portraits or drawings.(Defendants' Exhibit C (DX C), depositiontranscript of Corey Elder, 22:19-24.) | 10. Deny. Petitioner claims that defendantSilva destroyed/donated his portraits ordrawings. |
| 11. On October 6, 2014, Sergeant Speersinterviewed Plaintiff regarding his grievance.(DX A-1, p. 19.) | 11. Deny. Petitioner wasn't interviewed on"October 6, 2014" but on October 21, 2014. |
| 12. Sergeant Speers advised Plaintiff that hisdrawings were confiscated on July 22, 2014,and at that time, Officer Sauder contacted thetrust office to determine whether Plaintiff hadmoney in his account to send the property out.Because Plaintiff did not have funds in histrust account, his property was donated inaccordance with the Department OperationsManual (DOM), section 54030.12.2.(DX A-1, p. 19.) | 12. Deny. In the defendant's [sic] exhibit"DXA-019" is an appeal in which it wasalleged that Sergeant Speers "told you at thetime the drawings were confiscated; you didnot have the available funds to mail themout." Petitioner only dealt with correctionalofficer Silva when issued his property.Petitioner only met Speers when interviewed2 months after receiving his property. |
| 13. DOM section 54030.12.2 states,"Unauthorized inmate personal property,including that which is altered, exceedsvolume limitations, or is beyond repair, shallbe disposed of in accordance with theprovisions of this Section. The institution shallnot store unauthorized inmate property exceptas provided for inmates placed in ASU asprovided for in Section 54030.13.2." Thatsection goes on to state, "Inmates shall sign theCDC Form 1083 indicating their choice ofdisposition and agreement to the method fordisposing of their property. If the inmatemakes no selection or has insufficient funds,staff shall document that fact and determinethe method of disposition.Unauthorized personal property shall bedisposed of as follows:Mail the item to an address provided by theinmate via United States Postal Service(USPS) or common carrier at the inmate'sexpense. This option is not available forinmates with insufficient funds in their trust(13 continued on next page) | 13. Admit. |
| (13 continued from previous page)account. Return the item to the sender viaUSPS or common carrier at the inmate'sexpense. This option is not available forinmates with insufficient funds intheir trust account. [sic](Defendants' Exhibit B (DX B)) | |
| 14. At the time that Plaintiff's property wasdisallowed, Plaintiff did not have funds in histrust account, therefore, his property wasdonated.(DX A-1, p. 19.) | 14. Deny. In direct violation of thedisposition in Department Operations Manual2014, section 54030.12., petitioner neversigned or agreed to have his property donatedor destroyed as evidence by the propertyreceipt. |
| 15. Plaintiff's grievance was denied at the firstlevel of review by Associate WardenZumpano on October 21, 2014.(DX A-1, p. 20.) | 15. Admit. |
| 16. Dissatisfied with the first level response,Plaintiff submitted his grievance to thesecond level of review on October 27, 2014,claiming that his property was not contrabandand should not have been confiscated. Plaintiffalso claimed that unnamed officers failed tocomply with procedures. For the first time,Plaintiff alleged that Officer Silva hadinformed Plaintiff that he had until July 25,2014, to get money sent into his trust account,and the property would be held until that date.Plaintiff claimed that when he mentioned thisduring his interview, Sergeant Speers stated,"oh well, my officer fucked up."(DX A-1, p. 13-14.) | 16. Admit. |
| 17. Plaintiff was again interviewed regardinghis property on November 22, 2014, thistime by Lieutenant Hogan. Hogan alsointerviewed Sergeant Speers and Officer Silva.Lieutenant Hogan advised Plaintiff that hisdrawings were confiscated because they wereon oversized paper, which was not allowed atHDSP.(DX A-1, p. 21-22.) | 17. Deny. In addition to being interviewed byLieutenant Hogan, plaintiff was asked did hehave anything that he wanted to add. Plaintiffindeed said that he wanted to add somethings. Plaintiff went on to explain that hewas being harassed, intimidated, andretaliated against. |
| 18. Plaintiff's grievance was denied at thesecond level of review by Chief DeputyWarden St. Andre on November 24, 2014.Plaintiff's grievance was later denied at theDirector's level of review.(DX A-1, p. 22-23.) | 18. Admit. |
| 19. Plaintiff filed another grievance onSeptember 7, 2014, this time claiming thatsecond watch correctional staff ran out of sacklunches, but promised to get Plaintiff a lunchbefore the shift ended. Plaintiff also claimedthat when he complained to Officer Jokschduring third watch, Joksch was disrespectful,stating "so what am I supposed to do aboutyour lunch? I don't give a fuck about yourlunch." Plaintiff requested that Officer Jokschbe reprimanded.(DX A-1, p. 25-26.) | 19. Admit. |
| 20. Plaintiff withdrew his grievance onSeptember 19, 2014, advising that housing unitofficers had provided Plaintiff with his sacklunch on September 7, 2014.(DX A-1, p. 27.) | 20. Deny. Petitioner withdrew his grievancewith the agreement that the harassment,intimidation, and retaliation would stop.Which it didn't, but only worsened . . . [sic] |
| 21. On September 8, 2014, Officer Jokschissued Plaintiff a rules violation for delaying apeace officer when Plaintiff refused to accept acell partner.(DX A-1, p. 28.) | 21. Deny. Petitioner was issued a rulesviolation report just one day after filing thegrievance against officer Joksch. Petitionercontended that he never refused a cell partner. |
| 22. Officer Joksch noted that the inmate withwhom Plaintiff was to be housed wasevaluated and deemed compatible, and therewere no known factors that prevented the twoinmates from being housed together. Jokschordered Plaintiff to move into a new cell withthe inmate, but he refused to do so. Plaintiffthen produced an outdated accommodationchrono dated September 9, 2009, claiming thathe needed a lower bunk. Officer Joksch wentto the clinic to get Plaintiff's most recentaccommodation chrono, which noted thatPlaintiff did not require any accommodations.(DX A-1, p. 28.) | 22. Deny. Petitioner wrote a staffcomplaint/grievance on September 7, 2014.Then just the very next day on September 8,2014 petitioner was told to move. Petitioneronly asked where he was moving and if theother inmate could possibly move withpetitioner. Petitioner produced a permanentlower bunk that he received in 2009 that wasnever canceled or rescinded.(Exhibit 1) |
| 23. In authoring the rules violation report,Officer Joksch noted that Plaintiff had refusedto accept two other cell partners on September7, 2014.(DX A-1, p. 30.) | 23. Deny. There is no documentation thatpetitioner ever refused a cell partner. Thisallegation was only made in Officer Joksch'srules violation report authored one day afterpetitioner wrote the staff complaint/grievanceagainst Officer Joksch. |
| 24. Plaintiff's disciplinary hearing on the rulesviolation was held on October 17, 2014.Lieutenant Ramsey acted and the SeniorHearing Officer, advising Plaintiff of thecharges against him.(DX A-1, p. 28.) | 24. Admit. |
| 25. Plaintiff pled not guilty to the charge ofwillfully delaying a peace officer by refusingassigned housing, stating, "I am anon-affiliated inmate and they were trying tohouse me on the upper tier with a gangmember. Also, I have a lower bunk/lower tierchrono."(DX A-1, p. 32.) | 25. Admit. |
| 26. During the hearing, Lieutenant Ramseynoted that Plaintiff did not meet the criteriafor the assignment of an investigativeemployee (IE) to assist Plaintiff. Ramsey alsonoted that all time constraints had been met,and Plaintiff had not requested witnesses.(DX A-1, p. 31-32.) | 26. Deny. Petitioner did in fact requestwitnesses and that other evidence beadmitted. |
| 27. Lieutenant Ramsey found Plaintiff guiltyof the charge against him based on apreponderance of the evidence.Lieutenant Ramsey considered the rulesviolation report authored by Officer Joksch,and that Plaintiff had presented an outdatedaccommodation chrono that was no longervalid. Lieutenant Ramsey also consideredPlaintiff's level of mental health care, eventhough it was determined that Plaintiff'smental health was not a factor in refusing acell partner. Finally, Lieutenant Ramsey notedthat all of the cell partners offered to Plaintiffwere designated racially eligible, as wasPlaintiff.(DX A-1, p. 32-34.) | 27. Deny. As noted in petitioners [sic] appeal,DXA-038, 039, there was no other evidenceoffered against petitioner other than OfficerJoksch's word.Petitioner explained that hedid in fact end up accepting a cell mate.Petitioner also explained that he has beencoming to the California Department ofCorrections since 1992 and has never refuseda cell mate [sic] and that this was just clearlya retaliatory act against petitioner. |
| 28. Because it was Plaintiff's first rulesviolation for refusing to accept a cell partner,Defendant Ramsey assessed Plaintiff ninetydays loss of credits and privileges, includingcanteen, telephone, vendor packages, andpersonal property.(DX A-1, p. 34.) | 28. Admit. |
| 29. On November 5, 2014, Plaintiff submitteda grievance, challenging the finding of guilt.Plaintiff claimed he was denied aninvestigative employee, and witnesses at thehearing. Plaintiff also claimed that LieutenantRamsey refused to provide him the ability tosubmit documents that would show Plaintiffthat the rules violation was retaliatory.(DX A-1, p. 38-39.) | 29. Admit. |
| 30. The grievance was denied at the secondlevel of review on December 17, 2014, byActing Chief Deputy Warden St. Andre, whofound that Plaintiff had received all of theprocess he was due.(DX A-1, p. 42-44.) | 30. Admit. |
| 31. On December 4, 2014, Plaintiff filedanother grievance, this time complaining thathe was being denied access to dayroom andyard, even though that was not part of thepenalty imposed by Lieutenant Ramsey afterPlaintiff was found guilty. Plaintiff wrote,"from October 17, 2014, the date of the 115hearing when punishment was imposed, untilNovember 6, 2014, petitioner was in additionto the punishments already imposed Plaintiffwas confined to quarters and not permitted togo to the dayroom or to yard."Plaintiff claimed that once he showed OfficerWhitcome the disciplinary findings that listedthe privileges Plaintiff was denied, Plaintiffwas allowed to participate in dayroom andyard.(DX A- 1, p. 39, 48-49.) | 31. Deny. Petitioner was written a rulesviolation, found guilty, and prescribedspecific punishment. In addition to thepunishment imposed, petitioner was confinedto quarter for three weeks. On October 22,and October 23, 2014, petitioner attempted togo to the exercise yard and was told byOfficer Whitcome that I was confined toquarters until January 15, 2015. Petitionerthen stated that it was impossible forpetitioner to be confined to quarters for 2months with no access to the dayroom, yard,or showers. Officer Whitcome's onlyresponse was, "This is what you get for'whining' and complaining.' You werewarned." It wasn't until November 6, 2014,the following month that petitioner received acopy of the final disposition of the rulesviolation report that officer Whitcomeconceded. Petitioner showed OfficerWhitcome the final copy which listed noconfining to quarters. Then and only then waspetitioner allowed yard. |
| 33. Plaintiff's grievance was rejected onJanuary 5, 2014, because Plaintiff failed toprovide the appropriate attachments.(DX A-1, p. 59.) | 33. Deny. Petitioner's appeal wasinappropriately screened out againstpetitioner's rights |
| 34. Plaintiff resubmitted the grievance, whichwas later denied as untimely.(DX A-1, p. 60.) | 34. Admit. |
| 35. Plaintiff has never filed a grievanceclaiming that Lieutenant Brackett searchedPlaintiff's cell, or confiscated Plaintiff's legalproperty.(Defendants' Exhibit D (DX D), declaration ofS. Barnes, ¶ 11.) | 35. Deny. On February 18, 2015 petitionerand his cellmate was [sic] escorted and placedin the shower.Only petitioner's legal property was taken a'future search.' In what had been a series ofretaliatory actions against petitioner,petitioner was 'warned' by LieutenantBrackett, "this is your last warning.'"Petitioner took this to mean that furtherharassment, harm, injury, or death wasimminent. And after a series of threats andwarnings and out of pure fear for petitioner's(35 continued on next page) |
| (35 continued from previous page)safety, petitioner chose not to further writeany more grievances. On 5-19-2015petitioner's mental status was increased fromCCCMS level of care to E.O.P level of carewhere petitioner had to undergo significantlymore mental health treatment because of theintimidation, retaliation, and harassment thathe experienced at High Desert State Prison.(Exhibits 2 and 3) |
IV. DISCUSSION
In their moving papers, Defendants raise the following arguments related to Plaintiff's retaliation claims: (1) Plaintiff cannot succeed on the merits against Defendants Silva, Speers, Ramsey, and Whitcome; (2) Plaintiff has failed to exhaust his administrative remedies as to Defendants Brackett, Whitcome, and Joksch; and (3) Defendants are entitled to qualified immunity. See ECF No. 34-1. Defendants also argue that judgment should be rendered in defendant Hogan's favor because the first amended complaint contains no allegations against him. See id.
Though the Court found the first amended complaint states a cognizable Eighth Amendment claim against Defendant Joksch, Defendants raise no arguments as to such claim. See e.g. id. The Court will, therefore, recommend this action proceed against defendant Joksch on Plaintiff's Eighth Amendment claim. The Court also agrees with Defendants that the first amended complaint contains no allegations as against Defendant Hogan and will recommend this defendant be dismissed.
Plaintiff's Eighth Amendment claim stems from allegations related to his cell move on September 8, 2014. Plaintiff claims he was ordered to move to a cell "with a gang member" in order to "learn a fucking lesson." ECF No. 16, pg. 5. These references reasonably suggest Plaintiff feared for his safety as a result of the order, specifically that the "lesson" would be in the form of violence perpetrated by a "gang member." It also suggests the order was based, at least in part, on an intention to move Plaintiff to a cell with a known gang member who could deliver that lesson, further implicating a safety concern. In its order determining Plaintiff's first amended complaint is appropriate for service, the Court identified an Eighth Amendment claim related to medical care. See ECF No. 17, pg. 2. Though the Court has recognized an Eighth Amendment claim since the inception of this lawsuit, Defendants very specifically move for summary judgment "on the gounds that Plaintiff cannot meet the elements of a retaliation claim as to any of the named Defendants." ECF No. 34-1, pg. 7.
The Court's analysis below is limited to Defendants' specific arguments concerning the merits of Plaintiff's First Amendment retaliation claims, exhaustion, and qualified immunity. Given the complexity of the interaction of the various arguments in terms of whether Defendants' arguments are dispositive overall as to any defendant on Plaintiff's retaliation claims, the Court provides the following chart showing which arguments are raised as to which defendants:
ARGUMENTS RELATED TO RETALIATION CLAIMS
| Cannot EstablishMerits of Claim | Claim isUnexhausted | QualifiedImmunity | |
| Silva | X | X | |
| Joksch | X | ||
| Whitcome | X | X | X |
| Speers | X | X | |
| Brackett | X | X | |
| Ramsey | X | X |
Defendants argue Plaintiff's retaliation claim is unexhausted only insofar as it relates to denial of a sack lunch. To the extent, as discussed below, Plaintiff's allegations give rise to additional retaliation claims against Defendant Joksch, Defendants do not argue such claims are unexhausted.
A. The Merits
In order to prevail on a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must establish that he was retaliated against for exercising a constitutional right, and that the retaliatory action was not related to a legitimate penological purpose, such as preserving institutional security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must establish the following in order to state a claim for retaliation: (1) prison officials took adverse action against the prisoner; (2) the adverse action was taken because the prisoner engaged in protected conduct; (3) the adverse action chilled the prisoner's First Amendment rights; and (4) the adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.
According to Defendants, the following retaliation claims are at issue:
Plaintiff alleges that Defendants engaged in conduct in retaliation for Plaintiff submitting grievances. (ECF No. 16.) Specifically, Plaintiff claims that: (1) Defendant Silva destroyed Plaintiff's drawings in retaliation for filing a grievance against him; (2) Defendant Speers failed to provide Plaintiff compensation for the artwork that was destroyed; (3) Defendant Joksch refused to provide Plaintiff with a state-issued lunch, and issued Plaintiff a rules violation for failing to accept a gang member as a cell partner; (4) Plaintiff told Defendant Ramsey that Correctional Officers were retaliating against him for filing a grievance, but Ramsey ignored Plaintiff's complaints and found Plaintiff guilty of the rules violation; (5) Plaintiff complained to Officer Whitcome about the restrictions and was told "this isn't the place for whiners or complainers;" and (6) Defendant Brackett searched Plaintiff's cell as a warning to stop filing grievance. (Id.).
ECF No. 34-1, pgs. 10-11.
Defendants offer the following specific arguments on the merits of these claims:
1. Plaintiff's retaliation claim against defendant Silva fails because the alleged retaliatory conduct occurred before plaintiff filed a grievance and because plaintiff only speculates as to the alleged retaliatory conduct. See id. at 13./ / /
2. Plaintiff's retaliation claim against defendant Speers fails because he took no adverse action against plaintiff and because plaintiff has not alleged an actual injury. See id. at 13, 15.
3. Plaintiff's retaliation claim against defendant Ramsey fails because there is no evidence Ramsey acted with retaliatory motive. See id. at 16.
4. Plaintiff's retaliation claim against defendant Whitcome fails because he took no adverse action against plaintiff. See id. at 17.
Defendants present no specific arguments related to the merits of Plaintiff's retaliation claims against Defendants Joksch and Brackett. See e.g. id. Defendants Joksch and Brackett, therefore, are only entitled to judgment as a matter of law on Plaintiff's retaliation claims against them to the extent the claims are not exhausted or they are entitled to qualified immunity, as further discussed below. The Court's further analysis of the merits of Plaintiff's retaliation claims is limited to the four defendants as to whom arguments to the law and facts are raised - Defendants Silva, Speers, Ramsey, and Whitcome.
Again, the Court notes that Defendants' exhaustion argument as to Defendant Joksch is limited to Plaintiff's claim relating to denial of a sack lunch.
1. Defendant Silva
According to Defendants, Plaintiff's retaliation claim against Defendant Silva fails because: (1) the alleged adverse action occurred before the alleged protected activity; and (2) Plaintiff only speculates that Defendant Silva retaliated. See ECF No .34-1, pg. 13. Defendants base these contentions on the following description of Plaintiff's allegations against Defendant Silva:
Plaintiff alleges that Defendant Silva intentionally destroyed Plaintiff's drawings in retaliation for Plaintiff filing a grievance against Silva. Specifically, Plaintiff states:
Upon receiving my property, I was told that I couldn't have my portraits/drawings. Because I couldn't have my portraits/drawings, I was told by Officer Silva that I would be given 3 days to have money put in my inmate trust account to have the portraits/drawings sent home. So I had the money sent to my account and notified C/O Silva that the money had arrived as we agreed upon. Shortly thereafter I was told my drawings were destroyed. I subsequently and timely appealed. (ECF No. 13 at p. 4.)
Defendants' citation to ECF No. 13 is presumed to be an error as the first amended complaint is filed at ECF No. 16.
Id. / / / / / / / / / / / /
a. Timing
Defendants contend Plaintiff's retaliation claim against Defendant Silva fails due to a timing problem. Specifically, Defendants argue the alleged adverse action occurred before the alleged protected activity and, therefore, Plaintiff cannot establish the adverse action occurred because of the protected activity. See ECF No. 34-1, pg. 13. According to Defendants:
This alleged adverse action cannot be the basis of Plaintiff's retaliation claim against Defendant Silva because the adverse action preceded Plaintiff's protected conduct. Plaintiff's drawings were donated on July 22, 2014 (DUF 6), but Plaintiff did not file a grievance regarding his drawings until August 12, 2014. (DUF 9.) Thus, Plaintiff's litigation activities cannot be a substantial or motivating factor for the alleged disposal of his property.
ECF No. 34-1, pg. 13.
The Court agrees. As summarized above, Plaintiff's claim against Defendant Silva is quite limited. Specifically, Plaintiff claims that Defendant Silva improperly destroyed his property in July 2014, conduct for which Plaintiff filed a grievance. See ECF No. 16, pg. 4; see also DX A (Cervantes declaration). Plaintiff does not allege or produce evidence of any protected activity of which Defendant Silva was aware which took place before the destruction of his property in July 2014. Here, the only alleged protected activity - the filing of a grievance against Defendant Silva - occurred after Plaintiff's property was destroyed. Absent Plaintiff in engaging in some protected activity prior to an adverse action, and absent Defendant Silva's knowledge of such activity, Plaintiff cannot establish that Defendant Silva's conduct was motivated by the protected activity. As such, Plaintiff cannot establish an essential element of his retaliation claim against Defendant Silva.
b. Speculation
Even assuming some adverse action occurred after a protected activity, Defendants also contend Plaintiff's retaliation claim against Silva fails because Plaintiff only speculates that retaliation occurred. See ECF No. 34-1, pg. 13. Defendants argue:
Plaintiff's retaliation claim against Defendant Silva also fails because Plaintiff merely speculates that Defendant Silva destroyed the drawings, and that he did so intentionally. But Plaintiff has no personal knowledge concerning this issue, and has no evidence to support his beliefs. (DUF 10.) "[M]ere speculation that defendants acted out of
retaliation is not sufficient. "Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014.) For both reasons, timing and speculation, Plaintiff's retaliation claim against Defendant Silva fails.
ECF No. 34-1, pg. 13.
Though the Court need not reach this argument because, as discussed above, Plaintiff cannot establish a necessary element of his retaliation claim against Defendant Silva, the Court nonetheless finds this argument persuasive as well. Plaintiff does not specifically allege that Defendant Silva destroyed his property, see e.g. ECF No. 16, and Plaintiff admitted at his deposition that he has no evidence to show Defendant Silva destroyed his property, see DX C (transcript of Plaintiff's deposition).
2. Defendant Speers
Defendants argue Plaintiff cannot prevail on his retaliation claims against Defendant Speers because Defendant Speers took no adverse action against Plaintiff. See ECF No. 34-1, pgs. 13-15. The Court agrees.
As with Defendant Silva, Plaintiff's allegations against Defendant Speers are limited. According to Plaintiff, Defendant Speers interviewed him in October 2014 regarding the grievance he filed against Defendant Silva following the destruction of his property. See ECF No. 16, pg. 4. Plaintiff further contends that, after he explained what Defendant Silva had done, Defendant Speers responded: "Well, my officer fucked up." Id. These allegations fail to state a claim for retaliation against Defendant Speers because Plaintiff does not allege an adverse action. See Diaz v. Sisto, 2010 WL 624618, at *8 (E. Dist. Cal. 2010); see also Wright v. Shannon, 2010 WL 445203 (E. Dist. Cal. 2010). Simply interviewing Plaintiff in relation to his grievance is not necessarily adverse. Moreover, it serves a legitimate penological interest.
3. Defendant Ramsey
Defendants argue Plaintiff cannot prevail on his retaliation claim against defendant Ramsey because Plaintiff has not alleged that Defendant Ramsey took adverse action as a result of Plaintiff engaging in a protected activity. Defendant also contends Defendant Ramsey's conduct served a legitimate penological interest. See ECF No. 34-1, pgs. 15-17. The Court agrees.
Plaintiff alleges Defendant Ramsey presided over the hearing on the rules violation report issued by Defendant Joksch for refusing a housing assignment. See ECF No. 16, pgs. 5. Plaintiff claims that, during the hearing, he told Defendant Ramsey that he believed the rules violation report had been issued in retaliation. See id. According to Plaintiff, he was found guilty and assessed a loss of credits as well as a loss of other privileges. See id.
While these allegations may suggest that Defendant's Ramsey's guilty finding could have been a result of his desire to punish Plaintiff for having filed grievances against other prison staff, the undisputed evidence shows otherwise. At DX A, Defendants provide the report of the rules violation hearing conducted by Defendant Ramsey on October 17, 2014. See ECF No. 34-3, pgs. 40-43. The report documents Plaintiff's plea and statement. See id. According to the report, Plaintiff pleaded not guilty and stated: "I am a Non-Affiliated Inmate and they were trying to cell me on the upper tier with a gang member; Also, I have a lower bunk/lower tier chrono." Id. at 41. There is no evidence Plaintiff ever informed Defendant Ramsey the rules violation report itself was retaliatory.
The Court finds Defendants have met their initial burden on summary judgment as to Plaintiff's retaliation claim against Defendant Ramsey. The burden shifts to Plaintiff to demonstrate the existence of a genuine dispute of material fact. In this regard, the Court notes that Plaintiff's response to Defendants' statement of undisputed facts does not indicate he ever reported to Defendant Ramsey alleged retaliation as the motive for the rules violation report issued by Defendant Joksch. Instead, Plaintiff denies Defendants' assertions that Plaintiff did not ask for witnesses at the hearing and that the decision was based on a preponderance of the evidence. See ECF No. 37, pgs. 9-10 (Plaintiff's response to Defendants' statement of undisputed facts). Plaintiff has not provided any evidence to support his contention that he requested but was denied witnesses. In any event, whether Plaintiff asked for witnesses is not material to showing Defendant Ramsey's motivations.
There is simply no evidence to establish that Defendant Ramsey knew that the rules violation report had been improperly written and that Defendant Ramsey nonetheless ruled against Plaintiff out of a desire to retaliate against Plaintiff.
4. Defendant Whitcome
Defendants contend that Plaintiff's retaliation claim against Defendant Whitcome fails because the evidence shows that Defendant Whitcome did not take any adverse action against Plaintiff. According to Defendants:
Plaintiff's retaliation claim against Defendant Whitcome fails because the claim is belied by the words in Plaintiff's grievance. According to the grievance Plaintiff filed contesting the disciplinary hearing, Plaintiff states, "from October 17, 2014, the date of the 115 hearing when punishment was imposed, until November 6, 2014, petitioner was in addition to the punishments already imposed Plaintiff was confined to quarters and not permitted to go to the dayroom or to yard." (DUF 31.) Plaintiff then adds that when he showed Defendant Whitcome the error, it was corrected. (DUF 32.)
Plaintiff's claim against Defendant Whitcome fails because Plaintiff has not shown that Defendant Whitcome's actions were adverse to him. Just the opposite is true. Whitcome helped Plaintiff get his privileges of yard and dayroom reinstated. Accordingly, the claims against Officer Whitcome should be dismissed.
ECF No. 34-1, pg. 17.
Plaintiff alleges he asked Defendant Whitcome about the loss of yard and dayroom privileges and that Defendant Whitcome responded: "This is not a place for 'whiners' or 'complainers.'" See ECF No. 16, pg. 5. Plaintiff further alleges that he remained confined to his cell for 20 consecutive days. See id. The issue is whether Defendant Whitcome confined Plaintiff to quarters for 20 days in retaliation for "whining" and "complaining" about prison staff.
In his inmate appeal of Defendant Ramsey's guilty finding, Plaintiff stated that he was told by Defendant Whitcome on October 22, 2014, and October 23, 2014, that he "was confined to quarters until January 15, 2015." See ECF No. 34-3, pg. 58 (DX A). Plaintiff also stated that the loss of yard and dayroom privileges was not imposed as a result of Defendant Ramsey's guilty finding. See id. This is corroborated by Defendant Ramsey's hearing report which details the final disposition as a loss of "canteen, appliances, vendor packages, telephone privileges and personal property for ninety (90) days." Id. at 66 (DX A). Whether, as Defendants contend, Defendant Whitcome eventually corrected the issue by restoring yard and dayroom privileges does not prove that the loss of these privileges was not improperly enforced by Defendant Whitcome in the first instance in retaliation for Plaintiff being a "complainer" and "whiner."
Based on the foregoing, the Court finds that Defendants have not met their initial burden of establishing the non-existence of a genuine dispute on the issue of Defendant Whitcome's allegedly retaliatory conduct, specifically confining Plaintiff to his cell for 20 days despite such confinement not being part of the punishment imposed by Defendant Ramsey on the rules violation finding.
Defendants' contentions that Plaintiff's retaliation claim against Defendant Whitcome is unexhausted and that Defendant Whitcome is entitled to qualified immunity on the claim are discussed below.
B. Exhaustion
Under the Prison Litigation Reform Act (PLRA), prisoners seeking relief under § 1983 must exhaust all available administrative remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The Supreme Court addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint because lack of exhaustion is an affirmative defense which must be pleaded and proved by the defendants; (2) an individual named as a defendant does not necessarily need to be named in the grievance process for exhaustion to be considered adequate because the applicable procedural rules that a prisoner must follow are defined by the particular grievance process, not by the PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not all, claims are unexhausted. The defendant bears burden of showing non-exhaustion in first instance. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If met, the plaintiff bears the burden of showing that the grievance process was not available, for example because it was thwarted, prolonged, or inadequate. See id. / / / / / /
The Supreme Court held in Woodford v. Ngo that, in order to exhaust administrative remedies, the prisoner must comply with all of the prison system's procedural rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, exhaustion requires compliance with "deadlines and other critical procedural rules." Id. at 90. Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance which affords prison officials a full and fair opportunity to address the prisoner's claims. See id. at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the quantity of prisoner suits "because some prisoners are successful in the administrative process, and others are persuaded by the proceedings not to file an action in federal court." Id. at 94.
A prisoner in California satisfies the administrative exhaustion requirement by following the procedures set forth in §§ 3084.1-3084.8 of Title 15 of the California Code of Regulations. In California, prisoners "may appeal any policy, decision, action, condition, or omission by the department or its staff that the inmate . . . can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). The prisoner must submit their appeal on the proper form, and is required to identify the staff member(s) involved as well as describing their involvement in the issue. See Cal. Code Regs. tit. 15, § 3084.2(a). These regulations require the prisoner to proceed through three levels of appeal. See Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.2, 3084.7. A decision at the third formal level, which is also referred to as the director's level, is not appealable and concludes a prisoner's departmental administrative remedy. See id. Departmental appeals coordinators may reject a prisoner's administrative appeal for a number of reasons, including untimeliness, filing excessive appeals, use of improper language, failure to attach supporting documents, and failure to follow proper procedures. See Cal. Code Regs. tit. 15, §§ 3084.6(b). If an appeal is rejected, the prisoner is to be provided clear instructions how to cure the defects therein. See Cal. Code Regs. tit. 15, §§ 3084.5(b), 3084.6(a). Group appeals are permitted on the proper form with each prisoner clearly identified and signed by each member of the group. See Cal. Code Regs. tit 15, § 3084.2(h). / / /
According to Defendants:
On the face of Plaintiff's First Amended Complaint, he acknowledges that an administrative grievance process was available to him. (ECF No. 16 at 2.) He also alleges that he exhausted all available administrative remedies. (Id.) But the evidence shows that Plaintiff withdrew his grievance regarding Defendant Joksch's failure to provide him with a sack lunch. (DUF 20.) Plaintiff has never filed a grievance regarding his claims against Defendant Brackett, and his grievance against Defendant Whitcome was rejected as untimely. (DUF 31-35.)
ECF No. 34-1, pg. 19.
At the outset, the Court observes that Defendants' motion is somewhat confusing as to exhaustion, specifically as to which defendants the failure to exhaust is asserted. In the heading to this section of their moving point and authorities, Defendants state: "Plaintiff's claims against Defendants Brackett and Whitcome fail because Plaintiff did not exhaust his administrative remedies regarding these claims before filing suit." ECF No. 34-1, pg. 18. In this section, however, Defendants raise arguments related to Defendant Jocsch's alleged denial of a sack lunch in addition to arguments related to Defendants Brackett in Whitcome. In their reply brief, Defendants for the first time raise exhaustion argument concerning Defendants Silva and Speers. See ECF No. 39, pgs. 3-4. Defendants state in their reply: "Defendants Silva, Speers, Joksch, Whicome, and Brackett are therefore entitled to summary judgment because Plaintiff never submitted an appeal through the final level of review regarding any claims of [retaliation] against these Defendants before initiating this action." Id. at 4.
Defendants raise no exhaustion argument as to Plaintiff's claim that Defendant Joksch retaliated against him by ordering a cell move on September 8, 2014.
Because Defendants did not raise the issue of exhaustion as to Defendants Silva or Speers in their moving papers, the Court does not address the arguments raised for the first time in a reply brief to which Plaintiff had no opportunity to respond. Given that, as discussed above, the Court finds that Plaintiff's retaliation claims fail on the merits as against Defendants Silva and Speers, no prejudice results to Defendants. The Court's analysis below is focused on the arguments raised in the moving papers as to Defendants Joksch, Whitcome, and Brackett. / / /
1. Defendant Joksch
Defendants contend:
Plaintiff claims that he was denied a sack lunch, and when he complained to Defendant Joksch, he was rebuffed, Joksch stating, "[y]ou like to write up staff and complain like a little bitch, so fuck your state lunch." (ECF No. 16 at 5.) Plaintiff submitted a grievance complaining he was denied a lunch by second watch staff. (DUF 19.) While the grievance alleges that Joksch was unprofessional in dealing with Plaintiff, there is nothing in the grievance alleging that Joksch's actions were retaliatory in nature, or in any way based on Plaintiff filing a grievance. (DUF 19.)
Plaintiff later withdrew the grievance, advising that the lunch had been provided "by housing unit officers later in the day." (DUF 20.). . . .
* * *
In this case, Plaintiff withdrew the grievance after receiving his lunch. Plaintiff has never alleged that he withdrew his grievance due to intimidation by Defendant Joksch or any other officer. Thus, Plaintiff did not exhaust his administrative remedies before filing suit as required by the PLRA, and his claim against Defendant Joksch should be dismissed.
ECF No. 34-1, pgs. 19-20.
Defendants' argument is persuasive. Plaintiff admits that, on September 19, 2014, he withdrew his grievance concerning denial of a sack lunch on September 7, 2014, because he was provided a sack lunch later that day. See ECF No. 37, pg. 7. Plaintiff's retaliation claim against Defendant Joksch based on the denial of a sack lunch on September 7, 2014, is unexhausted.
2. Defendant Whitcome
Defendants contend:
Plaintiff appears to allege that Defendant Whitcome retaliated against him for filing a grievance against Officer Joksch. However, the grievance Plaintiff filed against Defendant Whitcome was never processed, as it was rejected by the Appeals Coordinator, first for failure to attach the appropriate paperwork, and later as untimely. (DUF 33-34.) Plaintiff failed to comply with the relevant grievance rules and therefore failed to exhaust. . . .
ECF No. 34-1, pgs. 20-21. / / / / / /
The Court agrees that Plaintiff's retaliation claim against Defendant Whitcome is unexhausted. At issue are two grievances filed by Plaintiff concerning this claim. In his response to Defendants' statement of undisputed facts, Plaintiff contends that his first grievance was improperly screened out but admits that his second grievance was denied as untimely. See ECF No. 37, pgs. 11-12. While Plaintiff claims the first grievance was improperly handled, he makes no such allegation in response to Defendants' motion as to the second grievance. Nor does Plaintiff allege or submit evidence to show that he challenged the timeliness determination.
3. Defendant Brackett
Defendants assert:
A review of the grievances filed by Plaintiff in 2014 and 2015 show that Plaintiff did not file a grievance regarding the search of his cell by Defendant Brackett. (DUF 35.) Plaintiff filed several grievances, including a grievance regarding his disciplinary hearing, and the denial of a sack lunch, but there are no records Plaintiff appealed the search of his cell or the confiscation of his legal property. (DUF 35.)
ECF No. 34-1, pg. 21.
In his opposition to Defendants' motion for summary judgment, Plaintiff admits that he never sought administrative relief for his claim against defendant Brackett. See ECF No. 37, pg. 12. Plaintiff argues, however, that Defendant Brackett's conduct caused him to fear that further acts of retaliation would occur if he did file a grievance. See id. Plaintiff describes the following circumstances for his decision to not seek administrative relief:
On February 18, 2015, [Plaintiff] and his cellmate was [sic] escorted and placed in the shower. Only [Plaintiff's] legal property was taken for a "future search." In what had been a series of retaliatory actions against [Plaintiff], [Plaintiff] was "warned" by Lieutenant Brackett, "this is your last 'warning.'" [Plaintiff] took this to mean that further harassment, harm, injury or death was imminent. And after a series of threats and warnings and out of pure fear for [Plaintiff's] safety, [Plaintiff] chose not [to] further write any more grievances. . . .
ECF No. 37, pg. 12. / / / / / / / / /
The Ninth Circuit has held that "the threat of retaliation for reporting an incident can render the prison grievance process effectively unavailable and thereby excuse a prisoner's failure to exhaust administrative remedies." McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015). There are subjective and objective components to test whether a prisoner's fear of retaliation excuses non-exhaustion. See id. For the subjective prong, the "prisoner must provide a basis for the court to find that he actually believed prison officials would retaliate against him if he filed a grievance." Id. Upon showing the subjective prong, the prisoner must then demonstrate his belief was objectively reasonable, meaning "a reasonable prisoner of ordinary firmness would have believed that the prison official's action communicated a threat not to use the prison's grievance procedure and that the threatened retaliation was of sufficient severity to deter a reasonable prisoner from filing a grievance." Id.
Applying McBride, the Court finds Plaintiff has provided a basis for concluding that Defendant Brackett's alleged threats deterred him from filing a grievance to satisfy the subjective prong. As alleged in the first amended complaint and discussed herein, Plaintiff believed he had already been frequently subjected to a series of retaliatory acts by prison officials. Additionally, Defendant Brackett allegedly confiscated Plaintiff's legal documents. See ECF No. 37, pg. 12. The circumstances of the alleged history of retaliation, Defendant Brackett seizing legal materials, and Defendant Brackett admonishing Plaintiff that "this is your last 'warning,'" demonstrate Plaintiff could have subjectively believed defendant Brackett would retaliate against him for filing a grievance.
As to the objective prong, the Court finds that Plaintiff fails to demonstrate that a reasonable prisoner of ordinary firmness would have understood Defendant Brackett as communicating a threat not to use the prison's grievance procedures. Plaintiff seems to string together Defendant Brackett's actions with past incidents, involving different prison officials, without explaining a retaliatory motive for Defendant Brackett. The Ninth Circuit has held that "warning" a prisoner constitutes a threat when the evidence shows that the defendant knew the prisoner continually used the grievance system. See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009). Defendant Brackett's "warning" was not explicitly threatening retaliation if Plaintiff were to use the prison's grievance system, nor does Plaintiff offer evidence that Defendant Brackett knew Plaintiff continually utilized the prison grievance system. Even though the threat need not explicitly reference the grievance system to deter a reasonable prisoner, prisoners cannot "avoid filing requirements on the basis of hostile interactions with guards when the interaction has no apparent relation to the use of the grievance system." McBride, 807 F.3d at 988. Because Plaintiff fails to demonstrate Defendant Brackett threatened retaliation relating to Plaintiff's use of the prison's grievance system, the Court finds Plaintiff fails to establish the objective prong of McBride. As a result, Plaintiff has not overcome his failure to exhaust his retaliation claim against Defendant Brackett.
C. Qualified Immunity
Government officials enjoy qualified immunity from civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant's conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether the right was clearly established. See id. This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition. . . ." Id. "[T]he right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 202 (citation omitted). Thus, the final step in the analysis is to determine whether a reasonable officer in similar circumstances would have thought his conduct violated the alleged right. See id. at 205. / / / / / / / / /
When identifying the right allegedly violated, the court must define the right more narrowly than the constitutional provision guaranteeing the right, but more broadly than the factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th Cir. 1995). For a right to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand [that] what [the official] is doing violates the right." See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court concludes that a right was clearly established, an officer is not entitled to qualified immunity because a reasonably competent public official is charged with knowing the law governing his conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff has alleged a violation of a clearly established right, the government official is entitled to qualified immunity if he could have ". . . reasonably but mistakenly believed that his . . . conduct did not violate the right." Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see also Saucier, 533 U.S. at 205.
The first factors in the qualified immunity analysis involve purely legal questions. See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal determination based on a prior factual finding as to the reasonableness of the government official's conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).
Although both the "clearly established right" and "reasonableness" inquiries are questions of law, where there are factual disputes as to the parties' conduct or motives, the case cannot be resolved at summary judgment on qualified immunity grounds. See Lolli v. Cty. of Orange, 351 F.3d 410, 421 (9th Cir. 2003); Wilkins v. City of Oakland, 350 F.3d 949, 955-56 (9th Cir. 2003); Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003); Martinez v. Stanford, 323 F.3d 1178, 1183-85 (9th Cir. 2003). / / /
Once a court determines that "the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing [the official's] conduct." Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). Upon establishing the violated right was clearly establish, however, the defendant then bears the burden of establishing that the defendant reasonably believed the alleged conduct was lawful. See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).
As to whether the rights involved in this case were clearly established, Defendants appear to concede they were. According to Defendants:
A prisoner's general right against retaliatory punishment was clearly established well before Plaintiff was transferred to HDSP in 2014. E.g., Rhodes, 408 F.3d at 569. Nor was there any question that Plaintiff was engaged in protected conduct when he filed grievances. . . .[H]e was subjected to the type of adverse action that would chill speech.
ECF No. 34-1, pg. 23.
As to reasonableness, Defendants also appear to concede they cannot meet their burden of showing that they reasonably but mistakenly believed their conduct was lawful. Defendants state: "Because the analysis of a retaliation claim is largely subjective, it's difficult to determine at the [sic] whether reasonable officers in Defendants' positions would have known they were violating the law." Id. The Court simply cannot find, based on the arguments presented, that Defendants have met their burden as to qualified immunity. To the contrary, Defendants appear to concede qualified immunity is inapplicable in this case at this time. / / / / / / / / / / / / / / / / / / / / / / / / / / /
V. CONCLUSION
Based on the foregoing, the undersigned recommends that:
1. Defendants' motion for summary judgment, ECF No. 34, be granted in part and denied in part as follows:
a. Defendants' motion be granted as to the merits of Plaintiff's claims against Defendants Silva, Speers, and Ramsey, as Plaintiff cannot prevail on the merits as to the claims against these Defendants;
b. Defendants' motion be denied as to the merits of Plaintiff's claims against Defendant Whitcome;
c. Defendants' motion be granted as to Plaintiff's claims against Defendants Whitcome and Brackett, as well as the portion of his claim against defendant Joksch based on denial of a sack lunch, because such claims are unexhausted;
d. Defendants' motion as to qualified immunity is denied;
e. Defendants' motion be granted as to Defendant Hogan for failure to state a claim;
2. This action will proceed on the following claims against Defendant Joksch:
a. Plaintiff's Eighth Amendment claim against Defendant Joksch based on the cell move ordered on September 8, 2014; and
b. Plaintiff's First Amendment retaliation claim against Defendant Joksch based on the cell move ordered on September 8, 2014.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: March 22, 2021
/s/_________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE