Opinion
2:20-cv-01914-AR
11-13-2023
JONATHAN JASON RODRIGUEZ Plaintiff, v. E. ANDERSON; S. BROWN; J. CUNA; T. HART; TURNER; BRADY; and N. SOBOTTA, Defendants.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD, United States Magistrate Judge.
Plaintiff Jonathan Rodriguez, a self-represented litigant formerly in the custody of the Oregon Department of Corrections, brings this section 1983 action that alleges violations of his constitutional rights by the above-named defendants. Relevant to defendants' motion for partial summary judgment now before the court, Rodriguez alleges that defendant Nina Sobotta violated his First Amendment right to petition the government for redress when she denied two grievances he filed while incarcerated at Eastern Oregon Correctional Institution (EOCI). Because the court concludes, as explained in more detail below, that Rodriguez was not denied access to EOCI's grievance procedures, there is no genuine issue of material fact as to Rodriguez's First Amendment claim against Sobotta. Defendants' motion should be GRANTED.
BACKGROUND
On May 25, 2018, while in custody at EOCI, Rodriguez was forcefully extracted from his cell in the Disciplinary Segregation Unit (DSU). During that extraction, Rodriguez bit defendant Sergeant Brown, one of the correctional officers who removed Rodriguez from his cell. (Compl. ¶¶ 4, 24, 27, ECF No. 1.) Two grievances Rodriguez filed concerning the May 25 extraction are relevant here.
Grievance I. On May 29, Rodriguez filed grievance EOCI.201806013 (Grievance I), contesting the “close observation” restriction defendants imposed on Rodriguez. The close observation restriction, he asserted, has “zero pen[o]logical value” because he “refused to give the officers back their handcuffs after they denied me a shower.” Also, the “punishment doesn't fit the crime.” The grievance was returned to Rodriguez by the EOCI Grievance Coordinator defendant Sobotta with an explanation that it did not qualify under Oregon Administrative Rule (OAR) 291-109-0140(2). Sobotta stated that Rodriguez did not demonstrate a misapplication or lack of a specific rule, unprofessional conduct or oversight that affected him, and the grievance did not relate to a program failure or loss of property. In short, Sobotta denied Grievance I because Rodriguez did not identify a grievable issue. (Decl. of Sobotta ¶¶ 11-12 & Attach. 5 at 1-2, ECF No. 55.)
Grievance II. On June 7, 2018, Rodriguez filed grievance EOCI.201806048 (Grievance II) concerning words exchanged with Brown on May 26. Rodriguez related that in the evening after the May 25 extraction, he and Brown joked about Brown needing to get a tetanus or rabies shot and that Brown may turn into a zombie. The following day, he jokingly asked Brown if he had gotten his “cooties shot” and that Brown responded by saying “[y]our a bitch, what kind of bitch bites people” and “I wouldn't want to make you scream like a bitch ow' my arm let go of my arm.” (Uncorrected.) In Rodriguez's view, Brown's comments violated ODOC's respectful workplace and inmate communications policies and Brown should be “held accountable.” (Sobotta Decl. Attach. 6 at 6; Compl. ¶ 37.)
Sobotta returned Grievance II to Rodriguez, stating that it was being “denied based on your initiation of disrespectful comments to [] Sgt. Brown.” Sobotta encouraged Rodriguez to avoid future “push and pull situations with staff.” The returned grievance also stated that it could not be appealed but could be resubmitted with corrections. Rodriguez resubmitted Grievance II on June 18 “as it was written” and to “use this reply as clarification.” His ressubmission included the following:
I didn't make any disrespectful comments to Sgt. Brown ever. You seem to be taking what I said out of context....I don't see how that[']s disrespectful in any way. Even if it is disrespectful, that doesn't give staff the permission to be disrespectful to an inmate under any circumstances. ... Sgt. Brown called me a ‘bitch' multiple times in front of other inmates which is not only humiliating but puts me in a compromising situation/position. Also see: [OAR] 291-105-0021 procedures for handling misconduct by inmates.
Rodriguez again refiled Grievance II on June 19, with slight modifications. (Sobotta Decl. Attach. 6 at 2-3.)
On June 24, Sobotta responded to Rodriguez's June 18 resubmission of Grievance II, stating that: “Disrespect is subjective. As the grievance coordinator, I see it and interpret it as disrespectful.” Sobotta further encouraged Rodriguez to be respectful and to keep quiet, and noted that his history has been “one of defiance,” and that he should be more mature and act his age. On June 27, Sobotta denied Rodriguez's June 19 refiling of Grievance II as a duplicate. (Sobotta Decl. Attach. 6 at 1-4.)
On November 6, 2020, Rodriguez filed this action against several ODOC employees including Sobotta. (ECF No. 1.) In his complaint, brought under 42 U.S.C. § 1983 (permitting claims against state officials for violations of constitutional rights), Rodriguez alleges that Sobotta willfully, deliberately, and maliciously refused to process his grievances to cover up staff misconduct. By blocking his grievances, in Rodriguez's view, Sobotta denied his right to petition the government for redress under the First Amendment. (Compl. ¶ 56.) Defendants now move for partial summary judgment on that claim.
The court previously denied defendant's motion for summary judgment on Rodriguez's excessive force claims against defendants Hart, Turner, Brady, Cuna, Brown, and Anderson on statute of limitations grounds. (F&R, ECF No. 47.) That recommendation was adopted by District Judge Karin J. Immergut. (Order, ECF No. 49.) The court permitted defendants to file a second motion for summary judgment on Rodriguez's First Amendment claim. (Mot. Partial Summ. J., ECF No. 54.)
LEGAL STANDARDS
Summary judgment is appropriate if there is no genuine dispute of material fact, viewing the evidence in the light most favorable to the nonmoving party. FED. R. CIV. P. 56(A). A genuine dispute of a material fact is “one that could reasonably be resolved in favor of either party.” Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). The initial burden for a motion for summary judgment is on the moving party to identify the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once that burden is satisfied, the burden shifts to the nonmoving party to demonstrate, through the production of evidence, that there remains a “genuine issue for trial.” Id. at 324.
The nonmoving party may not defeat summary judgment with the allegations in the complaint, or with “unsupported conjecture or conclusory statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). All reasonable doubts and inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must “construe liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citation omitted). This rule exempts pro se AICs from strict compliance with the summary judgment rules, but it does not exempt them from all compliance. Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018); accord Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (“This rule relieves pro se litigants from the strict application of procedural rules and demands that a court not hold missing or inaccurate legal terminology or muddled draftsmanship against them.”). Summary judgment thus should be entered 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.” Celotex, 477 U.S. at 322.
DISCUSSION
As noted, Rodriguez contends that Sobotta violated his First Amendment right to petition the government for redress when she denied his grievances. Specifically, Rodriguez argues that his grievances were wrongfully rejected for not complying with the administrative rules, that Sobotta was attempting to cover up Brown's behavior, and that she retaliated against him when she chastised him for being disrespectful when denying his grievances. Defendants insist that they are entitled to summary judgment because Rodriguez's grievances were frivolous and thus not entitled to First Amendment protection and because Sobotta is entitled to qualified immunity. For clarity, the court addresses First Amendment principles, then addresses Rodriguez's grievances separately, beginning with Grievance II.
A. First Amendment Right to Petition the Government for Redress
There are some key legal principles that inform the court's analysis of Rodriguez's constitutional challenge to Sobotta's handling of his grievances. “The First Amendment guarantees a prisoner a right to seek redress of grievances from prison authorities and as well as a right of meaningful access to the courts.” Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015); see also Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017) (“The most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances.”). Where an AIC is required to exhaust the administrative grievance process, “a prisoner's fundamental right of access to the courts hinges on his ability to access the prison grievance system.” Bradley v. Hall, 64 F.3d 1279, 1280 (9th Cir. 1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001). Therefore, interference with the grievance process may, in certain circumstances, implicate the First Amendment. Retaliation against AICs for exercising their right to seek redress “is itself a constitutional violation, and prohibited as a matter of clearly established law.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009); Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005).
AICs do not, however, have a “constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); see also Fairley v. Shelton, 664 Fed.Appx. 616, 617 (9th Cir. 2016) (affirming summary judgment on AICs claim alleging the improper denial of his grievance). Importantly, “an allegation that a prison official inappropriately denied or failed to adequately respond to a grievance, without more, does not state a claim under § 1983.” Evans v. Skolnik, 637 Fed.Appx. 285, 288 (9th Cir. 2015). Further, an AIC's right to file grievances is not unlimited; frivolous grievances do not qualify as petitions for redress and are not protected by the First Amendment. Jones, 791 F.3d at 1035 (citing Hasan v. U.S. Dep't of Labor, 400 F.3d 1001, 1005 (7th Cir. 2005) (“Prisoners' grievances, unless frivolous . . . are protected by the First Amendment.”)).
B. Grievance II (No. EOCI.201806048)
Rodriguez argues that Sobotta violated the First Amendment when she refused to process Grievance II because he identified issues falling within grievance rules, including staff conduct that threatens inmate safety (OAR 291-109-0100) and that staff communications must be professional (OAR 291-109-0120). In Rodriguez's view, Grievance II raised legitimate safety concerns because Brown's behavior - calling him a “bitch” in front of other inmates - threatened his safety.
Defendants argue that Sobotta denied Grievance II because Rodriguez initiated the disrespectful interaction with Brown, and that his grievance premised on this interaction was frivolous or intended to harass Brown. In defendants' view, prison policies that prohibit disrespectful language are facially constitutional and that Sobotta's return of Grievance II premised on such conduct does not violate the First Amendment. Rodriguez does not dispute that he initiated the interaction with Brown; he contends that he was engaging with Brown in a joking manner and that it was Brown's exaggerated response that violated rules concerning staff behavior. Nor does Rodriguez dispute that he was able to resubmit Grievance II two more times.
Additionally, defendants argue that even if Sobotta erroneously rejected his grievance, she subjectively believed Rodriguez's behavior was disrespectful and frivolous, and therefore did not violate his First Amendment when she rejected Grievance II. The court need not reach that alternative argument.
On these undisputed facts, Sobotta has not violated Rodriguez's First Amendment rights. Although Rodriguez has a right to file grievances, he is not entitled to a particular response or action. See Hentz v. Snake River Corr. Inst., Case No. 2:19-cv-01651-MC, 2021 WL 1204128, at *2 (D. Or. Mar. 29, 2021) (providing that in the absence of retaliatory motive, denial of a grievance by itself is insufficient to establish First Amendment retaliation claim) (collecting cases); see also Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (observing that “prisoner's right to petition the government for redress . . . is not compromised by the prison's refusal to entertain his grievance”). AICs do not have a “separate constitutional entitlement to a specific prison grievance procedure.” Ramirez, 334 F.3d at 860; Rhodes v. Robinson, 408 F.3d 559, 566-67 (9th Cir. 2005) (holding AICs have First Amendment right to file prison grievances and retaliating against AICs for filing grievances may be constitutional violation); Saddozai v. Atchley, Case No. 20-07534 BLF (PR), 2021 WL 858419, at *4 (N.D. Cal. Mar. 5, 2021) (holding “[a] prison official's failure to process grievances, without more, accordingly is not actionable under § 1983”).
Here, Rodriguez was not denied access to the grievance procedure as demonstrated by his resubmission and re-filing of Grievance II. See Patten v. Brown, Case No. C 11-02057 JF (PR), 2011 WL 3652554, at *5 (N.D. Cal. Aug. 19, 2011) (holding inmate was not denied First Amendment right of access to courts because he vigorously exercised this right by filing grievances) (collecting cases). Instead, the crux of his First Amendment claim is that he was unsatisfied with Sobotta's response. Rodriguez's disagreement with Sobotta's conclusion that his grievance was disrespectful did not violate his First Amendment rights. See id. (“The fact that [Patten] disagrees with the prison officials' conclusions that his grievances presented meritless claims or did not conform to prison procedure does not give rise to a constitutional claim.”).
Next, Rodriguez argues that Sobotta denied Grievance II to cover up Brown's behavior. According to Rodriguez, Sobotta was covering for Brown's misconduct relating to his excessive force claim because “all the institution staff” are complicit. Rodriguez, however, points to no evidence from which the court could infer or find a genuine issue of fact for trial. To avoid summary judgment, the nonmoving party must identify some evidence beyond his own speculation. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (“[T]his court has refused to find a ‘genuine issue' where the only evidence presented is ‘uncorroborated and self-serving' testimony.”) (citation omitted). Because Rodriguez has not identified any evidence beyond his own contentions, defendants are entitled to summary judgment on his First Amendment claim under this theory.
Finally, Rodriguez argues that Sobotta retaliated against him for filing Grievance II, contending that Sobotta berated and chastised him in the grievance responses. To succeed on a First Amendment retaliation claim, Rodriguez must prove: (1) he engaged in protected First Amendment activity; (2) Sobotta took an adverse action against him; (3) a causal connection exists between his conduct and Sobotta's adverse action; (4) the “official's acts would chill or silence a person of ordinary firmness from future First Amendment activities[;]” and (5) Sobotta's retaliatory action did not advance the legitimate penological goals of EOCI. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Rhodes, 408 F.3d at 567. “[M]ere speculation that defendants acted out of retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014).
“An adverse action sufficient to support a retaliation claim requires ‘more than minimal' harm.” Dansby v. Amsberry, Case No. 2:18-cv-01606-MC, 2020 WL 7346607, at *3 (D. Or. Dec. 14, 2020) (quoting Watison, 668 F.3d at 1114). “The denial of a grievance, standing alone, is de minimis action and insufficient to establish a claim of First Amendment retaliation.” Id. (collecting cases); Garcia v. Sleeley, 3:14-cv-01525-JLS-RBM, 2019 WL 2234789, at *9 (S.D. Cal. May 22, 2019) (“[T]he denial of a grievance or administrative appeal does not amount to an adverse action sufficient to deter a person of ordinary firmness from further First Amendment activities.”), adopted by 2019 WL 3887340, *6 (“the denial of a grievance alone . . . does not amount to a constitutional violation”), aff'd 854 Fed.Appx. 882, 883 (9th Cir. 2021); Dicey v. Hanks, No. 2:14-cv-2018 JAM ACP, 2015 WL 4879627, at *5 (E.D. Cal. Aug. 14, 2015) (same).
Sobotta's denials of Grievance II and chastising Rodriguez in her responses are insufficient to establish a First Amendment retaliation claim. Rodriguez has not shown that Sobotta's actions are more than de minimus and that her responses would have deterred a person of ordinary firmness from further First Amendment action. Because Rodriguez fails to show that Sobotta took an adverse action against him, he cannot establish a First Amendment retaliation claim. Dansby, 2020 WL 7346607, at *3. Accordingly, defendants should be granted summary judgment on Rodriguez's First Amendment retaliation claim.
C. Grievance I (No. EOCI.201806013)
To the extent that Rodriguez asserts a First Amendment claim premised on Grievance I, defendants should be granted summary judgment. (See Am. Compl. ¶ 56, ECF No. 2; Pl.'s Opp'n at 1-2, ECF No. 60 (alleging Sobotta willfully blocked his grievances).) In his response to Grievance I, Rodriguez challenges the “close observation” restriction imposed after the May 25 incident where he bit Brown as an appropriate punishment. (Sobtta Decl. Attach. 5 at 2.) Sobotta denied Grievance I, stating that “[y]our grievance has not demonstrated how it qualifies under [OAR] 291-109-0140(2).” (Decl. of Sobotta, Ex. 5 at 1.) In his summary judgment response, however, Rodriguez does not advance a specific argument describing how Sobotta's denial of Grievance I and defendants' imposition of close observation violate his First Amendment rights were in retaliation for seeking redress, or were unrelated to a valid penological interest. Because Rodriguez has not created a genuine dispute of material fact that Sobotta's denial of Grievance I violated his First Amendment rights, defendants should be granted summary judgment.
The court need not address whether Sobotta is entitled to qualified immunity given that it concludes that she has not violated Rodriguez's First Amendment right to petition for redress.
CONCLUSION
For the above reasons, the motion (ECF No. 54) should be GRANTED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to Judge Karin J. Immergut.
Objections, if any, are due within 14 days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within 14 days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.