Opinion
No. C 03-02212 SI.
June 30, 2004
JUDGMENT
Summary judgment in favor of defendants and against plaintiff is granted. Judgment is entered accordingly.
IT IS SO ORDERED AD ADJUDGED.
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Romirico Remeidio, an inmate at San Quentin State Prison, filed this civil rights complaint under 42 U.S.C. § 1983. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, the Court GRANTS defendants' motions for summary judgment with respect to plaintiff's three causes of action.BACKGROUND
Plaintiff Romirico Remeidio is a prisoner serving a life term following his 1981 conviction for second degree murder. Cattermole Decl. Ex. B. From July 15, 1993 to October 18, 2002, plaintiff was incarcerated at California State Prison, San Quentin, including the period June 11, 2002 to October 18, 2002 in which plaintiff was housed in administrative segregation. Cattermole Decl. Ex.C.
In the latter part of 2001, defendant Nienhuis, serving as Community Resource Manager, learned of a dispute between several supervisors and coordinators of the San Quentin College Program. Nienhuis Decl. ¶ 3(A), Ex. A at 2. Nienhuis learned that the former coordinator of the College Program, Janowitz, was attempting to replace the current program through Patton College with another program. Id. Furthermore, Nienhuis was informed that inmates may be encouraging this dispute. Id. Plaintiff disputes use of the term "conflict" and whether Janowitz was attempting to have the College Program replaced. Opp'n at 1.
During January of 2002, Lewen, the coordinator of the College Program at the time, discussed with Nienhuis the rights of prisoners to correspond with volunteers of the College Program. Nienhuis Decl. ¶ 3(D), Ex. A at 2-3. It became apparent to Nienhuis that some inmates wanted to change the program to allow more interaction between the program volunteers and inmates.Id. Nienhuis advised Lewen that more interaction between inmates and volunteers was not appropriate due to safety concerns. Id.
During the week of April 29, 2002, Educational Officer Davis and Academic Teacher DeArteaga discussed their concerns with Nienhuis about the College Program. Nienhuis Decl. ¶ 3(C), Ex. A at 3-4. Their concerns focused on a list of demands some inmates made at a College Program meeting. Id. During the week of April 29th, Nienhuis also met with Lewen. Nienhuis Decl. ¶ 3(D), Ex. A at 3. Lewen told Nienhuis that she had received a document entitled "Proposal For Academic Committee To Manage The San Quentin College Program" ("Inmates' Proposal"), which contained the inmates' complaints expressed at the earlier meeting. Id.
Dating back to December 2000, Nienhuis suspected illicit activities by two of the other inmates signing the proposal with plaintiff. Nienhuis Decl. ¶ 3(F), Ex. A at 4. These two inmates had fostered inappropriate relationships with volunteers in another prison program. Id. In light of this history, Nienhuis was concerned about relationships between volunteers and the inmates in the College Program. Id. Plaintiff contends these two inmates were never found guilty of improper relationships in the earlier circumstances. Opp'n at 2.
On May 10, 2002, Nienhuis informed defendant Warden Woodford about the College Program situation. Nienhuis Decl. ¶ 3, Ex. A at 3. Woodford instructed Nienhuis to work with the investigational Services Unit to investigate the signatories of the Inmates' Proposal for possible involvement in unauthorized activities.Id. Based on these instructions, beginning May 10, 2002, Nienhuis began an investigation into possible unauthorized activities of plaintiff and the three other signatories of the Inmates' Proposal. Nienhuis Decl. ¶¶ 1, 3; Ex. A at 1.
On May 13, 2002, plaintiff appeared in front of the Board of Prison Terms ("BPT"), which recommended that he be granted a parole date. Cattermole Decl. Ex. D. On May 15, 2002, Plaintiff's cell was searched pursuant to the College Program investigation. Nienhuis Decl. ¶ 4, Ex. A at 4. During the search, plaintiff's written materials were confiscated. Id. On May 28, 2002, the materials seized from plaintiff's cell were searched, yielding gambling materials, two pages of hardcore pornographic material printed from the internet, and additional loose magazine pages depicting hardcore pornographic material. Nienhuis Decl. ¶ 5, Ex. C at 43-44. On June 10, 2002, Nienhuis issued plaintiff a Rules Violation Report ("RVR") for possession of pornographic materials. Nienhuis Decl. ¶ 7, Ex. C at 43-44.
On June 11, 2002, plaintiff was placed on administrative segregation status out of concern that the recent RVR might affect plaintiff's behavior, given the potential impact of the RVR on plaintiff's recent recommendation for a parole date. Cattermole Decl. Ex. F. Three days later plaintiff appeared before an Institutional Classification Committee ("ICC") chaired by defendant Dacanay. Cattermole Decl. Ex. G. The ICC recommended that plaintiff remain in administrative segregation until adjudication of the RVR, in light of the potential for plaintiff to lose his parole date and out of concern for the safety and security of the facility in such an event. Id. Furthermore, the ICC referred the issue of extending the administrative segregation due to possible loss of plaintiff's parole date to the Classification Staff Representative ("CSR"). Id. On June 25, 2002, the CSR approved a 90 day administrative segregation extension due to the pending RVR and its potential impact on plaintiff's parole date. Cattermole Decl. Ex. G.
On June 28, 2002, a disciplinary hearing was held on plaintiff's RVR, chaired by defendant Williams. Williams Decl. ¶¶ 5-9; Nienhuis Decl. Ex. C. Plaintiff was given all pertinent documentation 24 hours prior to the hearing and at the hearing stated he was ready to proceed. Williams Decl. ¶¶ 5-9. At the hearing plaintiff entered a plea of not guilty, but admitted to possessing the hardcore pornographic material in question. Id.; Nienhuis Decl. Ex. C. Plaintiff was found guilty of "Possession of Obscene Material Depicting Anal and Vaginal Penetration and Bestiality" in violation of California Code of Regulations, Title 15, § 3006(c)(15)(C)(1) and (2), an administrative level offense.Id. The decision was based on three finding: (i) plaintiff admitted to possessing the material stated in the RVR, (ii) the RVR was accurate and correct, and (iii) the material was contraband Id.
Plaintiff claims he was not afforded sufficient due process. Opp'n at 3-4. He alleges that he was denied "the right to present documentary evidence in mitigation of the charges" and that the hearing officer "refused to accept documents in my defense," in violation of California Code of Regulations, Title 15, section 3329. ("The inmate may present documentary evidence in defense or mitigation of the charges.") Id.; see also Remeidio Compl. Claim 1. Furthermore, plaintiff alleges Nienhuis withheld key evidence, because the hearing officer was not given the "letter and envelope containing the obscene materials." Remeidio Compl. Claim 1. Plaintiff does not state what "documentary evidence in mitigation of the charges" he wished to present, nor what "documents in my defense" might have been presented, except for the "letter and envelope containing the obscene materials."
On July 19, 2002, plaintiff appeared before a second ICC chaired by defendant Dacanay for review of plaintiff's administrative segregation. Cattermole Decl. Ex. I. The ICC noted that plaintiff had been found guilty of an RVR and that the Governor's Office was still reviewing his parole date. Id. The ICC concluded the plaintiff should be kept in administrative segregation, because if plaintiff's parole date was rescinded, he would pose a security threat as a possible escape risk. Id. Furthermore, the ICC referred the issue of transfer to more secure institution to the CSR. Id.
On or about July 26, 2002, defendant Nienhuis concluded his investigation into the College Program. Nienhuis Decl. ¶ 9, Ex. A at 39-40. Nienhuis concluded two of the signatories on the Inmates' Proposal had engaged in inappropriate relationships with volunteers and had circumvented prison security by trafficking materials into and out of the institution. Id. Nienhuis found that there was insufficient information to find that plaintiff had engaged in inappropriate relationships or circumvented prison security. Id.
On July 31, 2002, the Board of Prison Terms Decision Review Unit recommended disapproval of the May 13, 2002 recommendation for a parole date. Cattermole Decl. Ex. J. On August 14, 2002, the BPT, sitting en banc, disapproved the May 13, 2002 recommendation for a parole date. Cattermole Decl. Ex. K.
On August 23, 2002, plaintiff appeared before an ICC, chaired by defendant Kane, for review of plaintiff's administrative segregation. Cattermole Decl. Ex. L. The ICC decided to continue plaintiff's administrative segregation, taking into account plaintiff's 90 day extension of administrative segregation, the BPT decision of August 14, and the pending disciplinary action for gambling. Cattermole Decl. Ex. L. Additionally, the ICC referred the case to the CSR to consider transfer to a more secure institution. Id.
On October 4, 2002, plaintiff appeared before an ICC chaired by defendant Wooten for review of plaintiff's administrative segregation. Cattermole Decl. Ex. N. The ICC recommended that plaintiff be transferred to a more secure institution. Id. This recommendation was based on plaintiff's two RVRs in recent months, his denial of parole, possible future denials of parole and because San Quentin was an older facility lacking modern security features. Id. On October 18, 2002, plaintiff was transferred from San Quentin to California State Prison, Solano. Cattermole Decl. Ex. C.
Sometime between July 30, 2002 and August 27, 2002, plaintiff was issued an RVR for participating in a gambling pool based on gambling materials seized from plaintiff's cell on May 15, 2002. Cattermole Decl. Ex. M. Due to lack of evidence and failure to meet time constraints, sometime in September 2002 the gambling RVR was reduced to a CDC-128A Counseling Chrono, and plaintiff received a reprimand Id.
On May 13, 2003, plaintiff, proceeding pro se, filed a complaint against Dacanay, Kane, Lemos, Nienhuis, Williams, Woodford and Wooten. Remeidio Compl. Claims 1, 2 and 3. Defendants' responded with a request for screening review under 28 U.S.C. § 1915A. Defs' Req. for Screening Review at 1. Pursuant to defendants' request, the Court issued an order on August 13, 2003 dismissing with leave to amend the claim for an equal protection violation, dismissing without leave to amend the claim based on administrative review, and dismissing defendant Lemos. Order of Dismissal with Leave to Amend at 7-8. On September 5, 2003, plaintiff filed an amendment to the equal protection claim, alleging a claim against Dacanay, Kane, Nienhuis, Woodford, and Wooten. Amendment to Compl. at 1-4.
Now before the Court is defendants' motion for summary judgment, filed February 20, 2004. Defs' Mot. for Summ. J. On February 23, 2004, prior to filing an opposition to the summary judgment motion, Charles Carbone was added as plaintiff's attorney. Notice of Appearance of Carbone at 1.
LEGAL STANDARD
The Court will grant summary judgment "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 . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party").Generally, as is the situation with defendants' challenge to the plaintiff's § 1983 claims, the moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact.Celotex, 477 U.S. at 324. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the `depositions, answers to interrogatories, or admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. (citations omitted).
Where, as is the situation with a qualified immunity defense, the moving party bears the burden of proof at trial and must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine issue of fact on each issue material to his affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. When the defendant-movant has come forward with this evidence, the burden shifts to the non-movant to set forth specific facts showing the existence of a genuine issue of fact on the defense.
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 and nn. 10-11 (9th Cir. 1995) (treating plaintiff's verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge). Here, the Court will consider as evidence Remeidio's verified Complaint, and his Amendment of Equal Protection Claim.
The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 631.
Title 42 U.S.C. § 1983 "provides a cause of action for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. See Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law.See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988);Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987).
DISCUSSION
Defendants seek summary judgment on all of plaintiff's claims and to assert qualified immunity. Defs.' Mot. for Summ. J. at 1. As amended, plaintiff makes three claims under 42 U.S.C. § 1983 against the defendants. See Remeidio Compl. Claims 1, 2 and 3;see also Amendment to Compl. First, plaintiff makes an equal protection claim against defendants Nienhuis, Woodford, Kane, Wooten, and Dacanay based on alleged different treatment of Asian inmates by defendants. Amendment to Compl. at 4. Second, plaintiff makes a retaliation claim against defendants Woodford, Nienhuis, Dacanay, Kane, and Wooten based on alleged retaliation against plaintiff for signing the Inmates' Proposal. Remeidio Compl. Claim 2; see also Order of Dismissal with Leave to Amend at 5-6. Finally, plaintiff makes a due process claim against defendants Williams, Nienhuis and Woodford arising from the alleged denial of due process procedural protections during his disciplinary hearing for possession of pornographic material. Remeidio Compl. Claim 3; see also Order of Dismissal with Leave to Amend at 3-4.
1. Plaintiff's equal protection rights were not violated
Plaintiff makes two arguments concerning his equal protection rights. Amendment to Compl. at 4. First, plaintiff alleges that defendants Nienhuis and Woodford singled out plaintiff, as one of three Asian signatories on the Inmates' Proposal, for punishment.Id. Second, plaintiff alleges defendants Woodford, Kane, Wooten, and Dacanay treated plaintiff differently than other inmates when they placed him in administrative segregation and transferred him to a different institution because of his race.Id. at 3-4.
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249 (1985) (quotingPlyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382 (1982)).
"Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974) (citation omitted). Invidious racial discrimination such as racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for the necessities of prison security and discipline. Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079 (1972); Johnson v. California, 207 F.3d 650, 655 (9th Cir. 2000).
A plaintiff alleging denial of equal protection under 42 U.S.C. § 1983 must plead intentional unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory intent. See Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1026 (9th Cir. 1998). In addition, the claim must be rejected if the prison regulation or practice claimed to have infringed on an inmate's constitutional rights is "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254 (1987); see also Washington v. Harper, 494 U.S. 210, 223-25, 110 S.Ct. 1028 (1990) (standard of review adopted in Turner applies in all circumstances in which needs of prison administration implicate constitutional rights, including when the constitutional right claimed to have been infringed is fundamental or a suspect class is involved).
A. Plaintiff fails to provide evidence showing defendants Nienhuis and Woodford acted with discriminatory intent or without legitimate penological goal
Plaintiff alleges that defendants Nienhuis and Woodford violated plaintiff's right to equal protection in their investigation of the Inmates' Proposal. Amendment to Compl. at 4. Plaintiff claims the three Asian inmates who signed the Inmate' Proposal were targeted for investigation and punishment. Id. at 3. Plaintiff was issued an RVR for possession of sexually explicit material, and later Woodford informed the BPT of the RVR, leading to denial of plaintiff's parole date. Id.
Plaintiff alleges Nienhuis and Woodford acted with discriminatory intent in choosing to investigate plaintiff and the other two Asian inmates who signed the Inmates' Proposal.Id. at 4. Plaintiff asserts that a group of other inmates found in possession of obscene contraband in the North Block where plaintiff is housed were not charged with an RVR, as plaintiff was. Id. at 3. Plaintiff believes that in the last five years no North Block inmate has been issued an RVR for possession of obscene material. Id. at 2. Furthermore, plaintiff states that only the three Asian inmates who signed the Inmates' Proposal were placed in administrative segregation, found guilty of rule violations, and transferred to different institutions. Id. at 3.
A claim for racial discrimination must plead intentional unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory intent. See Monteiro, 158 F.3d at 1026. Plaintiff's statements concerning enforcement of the ban on sexually explicit materials do not support plaintiff's allegations that Nienhuis and Woodford acted with intent to discriminate. Plaintiff does not allege that Nienhuis and Woodford were responsible for the prior enforcement decisions in the North Block. Furthermore, previous enforcement in the North Block does not address plaintiff's primary allegation that Nienhuis and Woodford treated plaintiff differently because he was Asian. Non-enforcement of the ban on pornography in the past, by unknown individuals, does not show intent to discriminate against Asian inmates and therefore has no evidentiary value.
Plaintiff argues Nienhuis and Woodford were targeting Asians by pointing out that only the three Asians who signed the Inmates' Proposal were found guilty of rule violations, placed in administrative segregation and transferred. Amendment to Compl. at 3. In total, there were four inmates who signed the Inmates' Proposal. Decl. Nienhuis Ex. A at 3. Plaintiff alleges that three of the inmates who signed the proposal, including himself, were of Asian descent, and the fourth, plaintiff apparently alleges, was not of Asian descent. Amendment to Compl. at 3.
Woodford and Nienhuis authorized cell searches for all of the inmates involved in the Inmates' Proposal. Decl. Nienhuis Ex. A at 4. All four of the inmates had their cells searched and their written material confiscated. Id. Materials confiscated from the three Asian inmates led to charges being filed for improper relationships with volunteers, compromising institutional security, and, in the case of plaintiff, possession of contraband materials. Id. Ex. A at 37-40; Ex. C. Incriminating materials were not found in the fourth inmate's cell, and therefore no charges were filed. Id. Ex. A at 4.
Plaintiff's argument that Asian inmates were intentionally targeted for investigation and discipline does not have an evidentiary basis. Plaintiff's comparison with the North Block as a whole does not substantiate his claims that plaintiff was singled out as an Asian. The fact that only the Asian inmates who signed the Inmates' Proposal were issued RVRs is not evidence of differential treatment. The Asian inmates, including plaintiff, were found in possession of materials that led to disciplinary charges, while the non-Asian inmate was not in possession of such materials. Moreover, plaintiff does not dispute that the fourth inmate was not in possession of materials which could lead to disciplinary charges.
Defendants' motion for summary judgment points out plaintiff's failure to provide evidence supporting intent to discriminate against the Asian inmates. Defs.' Mot. for Summ. J. at 18-19. Once the moving party has pointed out the portions of the record which demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-moving party to show a material fact at issue. Celotex, 477 U.S. at 324. As discussed above, plaintiff's Complaint and Amendment to Complaint do not provide evidence supporting intent to discriminate.
Furthermore, defendants point out there were legitimate non-discriminatory reasons for issuing RVRs to the three Asian inmates and not the fourth non-Asian inmate. The claim must be rejected if the prison regulation or practice is "reasonably related to legitimate penological interests." Turner, 482 U.S. at 89; see also Washington, 494 U.S. at 223-25. Plaintiff has provided no evidence that legitimate penological goals were not being pursued when the four inmates' cells were searched, and rule violations were issued to three of the inmates. Defendant has provided a record of the investigation which cites specific penological goals for the defendants actions. See Nienhuis Decl. Ex. A at 2-4.
Plaintiff has not carried his burden of proof, and the Court therefore GRANTS summary judgment to defendants on the issue of the equal protection violation by Nienhuis and Woodford.
B. Plaintiff fails to provide evidence showing defendants Woodford, Dacanay, Kane and Wooten acted with discriminatory intent or without legitimate penological goals
Plaintiff alleges defendants Woodford, Kane, Wooten and Dacanay violated plaintiff's equal protection by treating plaintiff differently than other inmates. Amendment to Compl. at 3-4. Plaintiff claims that Kane, Wooten and Dacanay targeted plaintiff for differential treatment, while they were chairing various ICC hearings on the plaintiff's administrative segregation and transfer. Id. Plaintiff alleges that only the three Asian inmates who signed the Inmates' Proposal were found guilty of rule violations, placed in administrative segregation, and transferred. Id. at 3.
Plaintiff supports his allegations by stating that no North Block inmate has been placed on administrative segregation for possession of obscene materials. Id. at 2. Other North Block inmates were given notice that sexually explicit material were contraband Id. Furthermore, other inmates had been caught with sexually explicit materials and had not been placed in administrative segregation. Id. at 2-3. Plaintiff also asserts that prisoners similar to him were denied parole but did not receive administrative segregation or transfer. Id.
Plaintiff's allegations about prior discipline and administrative segregation in the North Block, even if true, do not support the essential element of intentional discrimination. Plaintiff does not allege that the prior decisions were made by the defendants. Nor does plaintiff allege other circumstances where Asian inmates have been treated differently. Furthermore, defendants contend that legitimate penological goals were advanced by their actions, and have provided a record of the ICC hearings showing these goals. Defs.' Mot. for Summ. J. at 13; Cattermole Decl. F, G, I, L and N. Plaintiff bears the burden of showing no legitimate goal was advanced, but has not met it.
Plaintiff has not established an issue of material fact, and the Court therefore GRANTS defendants' motion for summary judgment on the equal protection claim against defendants Woodford, Dacanay, Kane and Wooten.
2. Plaintiff failed to establish a retaliation claim
Plaintiff makes two arguments that defendants retaliated against him. Remeidio Compl. Claim 2 and 3. First, plaintiff claims defendants Woodford and Nienhuis retaliated against his involvement in the Inmates' Proposal by searching his cell on May 15, 2002. Remeidio Compl. Claims 2 and 3; see also Order of Dismissal with Leave to Amend at 2. Second, plaintiff claims defendants Woodford, Dacanay, Kane, and Wooten placed plaintiff in administrative segregation as retaliation for plaintiff's involvement in the Inmates' Proposal, for filing a habeas corpus action in state court, and for challenging San Quentin's policy on the College Program. Remeidio Compl. Claim 2; see also Order of Dismissal with Leave to Amend at 2.
Retaliation by a state actor for the exercise of a constitutional right is actionable under 42 U.S.C. § 1983, even if the act, when taken for different reasons, would have been proper. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568 (1977). Retaliation, though it is not expressly referred to in the Constitution, is actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694 (1972). In Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800 (1974), the Supreme Court stated "a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." In Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985), the Ninth Circuit held, that for a prisoner to state a cause of action, "[plaintiff] must do more than allege retaliation because of the exercise of his First Amendment rights . . .; he must also allege that the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Furthermore, plaintiff bears the burden of showing that there was no legitimate penological objective to defendants' actions. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) ("The plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct he complains of.").
Retaliation claims brought by prisoners must be evaluated in light of concerns over "excessive judicial involvement in day-to-day prison management, which `often squander[s] judicial resources with little offsetting benefit to anyone.'" Pratt, 65 F.3d at 807 (quoting Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293 (1995)). In particular, courts should "`afford appropriate deference and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory." Id. (quoting Sandin, 515 U.S. at 482).
A. Plaintiff failed to provide evidence showing Woodford and Nienhuis acted without a legitimate penological goal
Plaintiff claims that on May 15, 2002, his cell was subject to a search in retaliation for his participation in the Inmates' Proposal, an exercise of his First Amendment rights. Remeidio Compl. Claim 3; see also Order to Dismiss with Leave to Amend at 2. He alleges that the search took place on Warden Woodford's orders, after Nienhuis brought the Inmates' Proposal to Woodford's attention. Id. Both Woodford and Nienhuis are named as the defendants responsible for this retaliation. Id.
Defendants argue that plaintiff has failed to provide evidence showing that a legitimate penological goal was not advanced by the search of plaintiff's cell. Defs.' Mot. for Summ. J. at 18-19. By pointing out a specific failure to create material issue of fact, defendants have shifted the burden to plaintiff to provide evidence creating a material issue of fact. Celotex, 477 U.S. at 324.
Plaintiff simply alleges that the search of his cell by Woodford and Nienhuis part of "a deliberate policy to exclude the expression of viewpoints and opinions that are unflattering or unwelcome." See Remeidio Compl. Claim 3. Plaintiff has not alleged or provided any facts suggesting that the search of his cell did not advance legitimate penological goals, as was his burden. Plaintiff's pleadings are considered a valid affidavit to oppose summary judgment, but the complaint does not establish facts within plaintiff's knowledge which create a material issue of triable fact.
Furthermore, defendants have provided significant evidence, in the form of Nienhuis's investigation report, showing there were legitimate penological goals advanced by the search of plaintiff's cell. See Nienhuis Decl. Ex. A. Records show that an ongoing investigation was taking place when plaintiff's cell was searched. Id. at 4. The investigation was initiated partly because of the demands made in the Inmate Proposal, but also because of the prior records of the inmates involved and concerns of the College Program staff. Id. at 3-4. This investigation was pursued for the safety of the College Program volunteers, safety of the prison staff and security of the prison. Nienhuis Decl. ¶ 3(B). The search of plaintiff's cell was not retaliation, but part of an ongoing investigation undertaken for legitimate penological goals. Plaintiff has provided no evidence to refute the defendants' records. For the forgoing reasons, summary judgment is GRANTED on plaintiff's claim against defendants Woodford and Nienhuis for retaliatory search of his cell.
B. Woodford, Kane, Dacanay, and Wooten did not retaliate against the plaintiff because placement in administrative segregation advanced a legitimate penological goal
Plaintiff claims that he was retaliated against for his participation in the Inmates' Proposal, for filing a writ of habeas corpus in Marin County Superior Court, and for challenging prison policy. Remeidio Compl. Claim 2; see also Order of Dismissal with Leave to Amend at 2. Plaintiff alleges that in retaliation he was placed in administrative segregation and later transferred to another prison. Id. Plaintiff names defendants Woodford, Dacanay, Kane, and Wooten as the individuals responsible for the retaliation. Id.
Plaintiff does not detail what role Woodford played in the alleged retaliation, beyond ordering the search of plaintiff's cell discussed earlier. Dacanay, Kane and Wooten chaired various ICC hearings concerning plaintiff's placement in administrative segregation and his eventual transfer to another institution.See Cattermole Decl. F, G, I, L and N.
Defendants argue that plaintiff has failed to provide evidence that the actions by Woodford, Dacanay, Kane, and Wooten did not advance legitimate penological goals. Mot. for Summ. J. at 20. The only evidence provided was plaintiff's own assertion in the complaint recounting that Ms. Sorddragger told him that plaintiff was transferred because he signed the proposal. Remeidio Compl. Claim 2. Plaintiff's recounting of Ms. Sorddragger's statement may tend to support defendants' intent to retaliate, but does not establish that there was no legitimate penological goal advanced by the defendants' actions. By pointing out a specific failure to create material issue of fact, defendants have shifted the burden to plaintiff to provide evidence creating a material issue of fact. Celotex, 477 U.S. at 324. Plaintiff has failed to bear his burden of showing a material issue of fact that there was no legitimate penological goal advanced by the defendants actions.
Moreover, defendants have provided a record showing the ICC finding in question were made pursuant to legitimate penological goals, such as safety of staff and inmates, and the security of the institution. See Cattermole Decl. F, G, I, L and N. Plaintiff has failed to show that there is a triable issue of material fact on whether defendants' actions advanced legitimate penological goals. Therefore, for the above reasons the, Court GRANTS summary judgment to the defendants on the charges of retaliation against Woodford, Dacanay, Kane, and Wooten.
3. Plaintiff's due process rights were not violated
Plaintiff claims his due process rights were violated at the June 28, 2002 ICC hearing, because he was denied "the right to present documentary evidence in mitigation of the charges" and the hearing officer "refused to accept documents in my defense"; and because Nienhuis withheld key evidence when the hearing officer was not given the "letter and envelope containing the obscene materials." Remeidio Compl. Claim 1. Plaintiff does not state what "documentary evidence in mitigation of the charges" he wished to present, nor what "documents in my defense" might have been presented, except for the "letter and envelope containing the obscene materials." Plaintiff does not dispute that he possessed the pornographic materials as charged in the RVR.
The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution protects individuals against governmental deprivations of life, liberty or property without due process of law. Interests that are procedurally protected by the Due Process Clause may arise from two sources — the Due Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532 (1976).
Prison disciplinary hearings may amount to a deprivation of a constitutionally protected liberty interest if two requirements are satisfied. Sandin v. Conner, 515 U.S. 472, 477-87, 115 S.Ct. 2293 (1995). First, the liberty interest in question must be one of "real substance." Id. A liberty interest of "real substance" generally means (i) a restraint that imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," or (ii) state action that "will inevitably affect the duration of [a] sentence." Id. at 484, 487. Second, the state statutes or regulations must narrowly restrict the power of prison officials to deprive the inmate of the liberty interest. Id. at 477-487; see Bonin v. Calderon, 77 F.3d 1155, 1161-62 (9th Cir. 1996) (looking first to statutory language and finding no state-created constitutionally protected interest in choosing method of execution where state statute does not guarantee prisoner a choice).
In the absence of a liberty interest, an inmate's due process rights are violated in a disciplinary proceeding only if there is no evidence whatsoever supporting the disciplinary sanction.See Burnsworth v. Gunderson, 179 F.3d 771, 773-74 (9th Cir. 1999).
A. Plaintiff fails to allege Woodford participated in the violation of plaintiff's due process rights
Plaintiff's due process claim alleges that Woodford denied plaintiff's request to have the RVR for possession of pornographic materials dismissed. Remeidio Compl. Claim 3. Plaintiff does not describe what due process was absent when this denial was issued, nor does plaintiff claim that Woodford was involved in the alleged due process violations that took place at the ICC on June 28, 2002. In Claim 1 of plaintiff's complaint, plaintiff alleges that Woodford participated in retaliation against plaintiff, but this is a separate cause of action already discussed. Remeidio Compl. Claim 1. The Court GRANTS summary judgment in favor of the defendants on the due process claim against Woodford.
B. Plaintiff's placement in administrative segregation subsequent to the June 28, 2002 ICC hearing was not an "atypical and significant hardship"
To invoke the Due Process clause, plaintiff must meet the first prong of the Sandin test by showing that a liberty interest of real substance was at stake at the hearing. Sandin, 515 U.S. 483-86. In Sandin, the Supreme Court held that placement in administrative segregation after a disciplinary hearing did not amount to atypical and significant hardship. 515 U.S. at 486. In that case plaintiff alleged that he was not provided the opportunity to present a witness at his disciplinary hearing, and plaintiff was subsequently placed in administrative segregation.Id. at 475. The Court held that the situation was not atypical and significant hardship, and therefore no liberty interest of real substance was at stake. Id. at 486. Because no liberty interest of substance was at stake, only minimal due process was necessary. Id.
Here, plaintiff argues that his situation differs from mere administrative segregation as described in Sandin, because the outcome of his June 28, 2002 disciplinary hearing led to revocation of his parole date and his transfer to a Level III facility. Remeidio Compl. Claim 1. A state action that "will inevitably affect the duration of [a] sentence" creates a liberty interest for the inmate.Sandin, 515 U.S. at 487.
Sandin addressed whether a disciplinary hearing having an effect on other administrative hearings gives rise to a liberty interest of real substance. Id. "The decision to release a prisoner rests on a myriad of considerations. And, the prisoner is afforded procedural protection at his parole hearing in order to explain the circumstances behind his misconduct record. The chance that a finding of misconduct will alter the balance is simply too attenuated to invoke the procedural guarantees of the Due Process Clause." Id. (citations omitted).
The Sandin analysis applies to plaintiff's parole denial and transfer to another prison facility. Plaintiff's parole and reassignment to a different facility were too attenuated to create a substantial liberty interest at the June 28th disciplinary hearing. Furthermore, plaintiff does not allege that his due process rights were denied at either his parole hearing or at the prison reassignment hearing.
Finally, in light of the interests at stake, the disciplinary hearing did not violate minimum due process standards. Plaintiff does not deny that he received notice of the hearing on the RVR, that he received all pertinent documentation 24 hours prior to the hearing, that he stated he was ready to proceed with the hearing when it was called, or that he was present during the hearing. Further, he does not deny the statement attributed to him at the hearing: "I had all the stuff they say I had but I do not feel it is contraband I have had it a long time and no one said it was contraband in the past. I feel there is nothing wrong with it, therefore I'm not guilty." Nienhuis Decl. Ex. C. Although he now asserts that he was denied "the right to present documentary evidence in mitigation of the charges" and that the hearing officer "refused to accept documents in my defense," he appears to refer to the "letter and envelope containing the obscene materials," which would not have affected the outcome of the hearing.
Summary judgment is GRANTED in the defendants' favor on the issue due process violations by Nienhuis and Williams.
4. Qualified immunity
Defendants urge, in the alternative, that they are entitled to qualified immunity for their conduct. The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law'"; defendants can have a reasonable, but mistaken, belief about the facts or about what the law requires in any given situation. Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). "Therefore, regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not `clearly established' or the [official] could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).
A court considering a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right, then proceed to determine if the right was "clearly established." See Wilson v. Layne, 119 S.Ct. 1692, 1694 (1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999). The threshold question must be: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?Saucier, 533 U.S. at 201; see Martin, 360 F.3d at 1082-1084. If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. Saucier, 533 U.S. at 201.
On the other hand, if a violation could be made out on the allegations, the next sequential step is to ask whether the right was clearly established. Id. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Id. at 202. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. Id. The plaintiff bears the burden of proving the existence of a "clearly established right."
In this case, summary judgment will be granted to defendants because plaintiff has not established triable issues of material fact to warrant trial on his affirmative case. Alternatively, if a qualified immunity analysis were required, this Court would find that qualified immunity protects defendants since under the circumstances of this case it would not have been clear to reasonable officers that their conduct in performing plaintiff's cell search, in placing plaintiff in administrative segregation or in conducting the ICC hearing was unlawful. Accordingly, summary judgment in favor of defendants is GRANTED on the claim for qualified immunity.
CONCLUSION
For the foregoing reasons, defendants' motions for summary judgment are GRANTED. [Docket # 13]