Opinion
Civil No. 01-920-ST
May 13, 2002
Loren Christopher Tarabochia SID #10072765 Pendleton, OR Plaintiff, pro se.
Hardy Myers Attorney General Leonard Williamson Assistant Attorney General Department of Justice Salem, OR Attorneys for defendants.
FINDINGS AND RECOMMENDATIONS
Plaintiff, an inmate at the Eastern Oregon Correctional Institution ("EOCI"), brings this action pro se pursuant to 42 U.S.C. § 1983 against various employees of the Oregon Department of Corrections ("ODOC"). Currently before the court are plaintiff's Motion for Summary Judgment (docket #13) and defendants' Cross-Motion for Summary Judgment (docket #22). The court previously issued an Order (docket #11) advising plaintiff of the federal summary judgment standards. For the reasons identified below, both Motions should be granted in part and denied in part.
BACKGROUND
On May 30, 2001, plaintiff filed a grievance against Unit Officer Ness, a female staff member at EOCI, based on allegations that Ness repeatedly entered the inmate shower area and stared at unclothed inmates. In his grievance, plaintiff stated that Ness "AKA `Loch Ness Monster' . . . shows her tendencies toward being a sexual deviant and or sexual stalker, thank god her preferance [sic] is toward males with dark skin." Plaintiff also referred to Ness as a "pervert" and recommended a full psychiatric review with emphasis on her sexual perversion, and possibly sex offender treatment. Plaintiff concluded his grievance with the following: "If this does no good, hire a slut, she really needs to get laid." Defendants' Exh. 101, Attachment 1. While plaintiff failed to sign the grievance form, he printed his name at the top of the form and included his inmate identification number, making him easily identifiable.
On May 31, 2001, defendant Lt. Spencer Headly ("Headly") received the grievance form from defendant Captain Michael Burcham ("Burcham"). Headly then issued a misconduct report to plaintiff based on the content of the unsigned grievance. The misconduct report charged plaintiff with Disrespect II and Sexual Harassment, both of which are categorized as major violations. Based on the misconduct report, plaintiff was placed in disciplinary segregation on May 31, 2001, by defendant Officer Scott M. Allen ("Allen") and Officer John Ingle.
On June 4, 2001, plaintiff appeared before defendant Hearings Officer Peter Sturdevant ("Sturdevant") for an administrative hearing regarding the disciplinary sanction written by Headly. Plaintiff admitted writing the grievance, but claimed Ninth Circuit law prevented prison officials from punishing him for the content of his grievance, directing Sturdevant to legal authority for this assertion. Sturdevant nevertheless found plaintiff guilty of Disrespect III, a minor violation, and sanctioned plaintiff to two days segregation and 14 days loss of privileges. The unsigned grievance was destroyed after the hearing by Curtis Robin, EOCI property officer, in accordance with EOCI policy. See Defendants' Exh. 107.
At Sturdevant's suggestion, plaintiff submitted another grievance on the day of his administrative hearing. The June 4, 2001, grievance replicated his May 30, 2001, grievance with the exception of the concluding line. Mark Schachtsick, EOCI grievance coordinator, refused to entertain this grievance because he believed it contained "inappropriate or abusive language." Defendants' Exh. 101, Attachment 3. Plaintiff does not place the June 4, 2001 grievance at issue in this proceeding, choosing to focus his claims solely on his May 30, 2001, grievance.
On the day of the hearing, plaintiff sent an inmate communication to defendants "Jean Hill/Cupp," asking them to review his sanction in light of Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995). Plaintiff's Exh. 2. While defendant Tom Cupp ("Cupp"), Assistant Superintendent of EOCI, noted the communication, it does not appear that either Cupp or defendant Jean Hill ("Hill"), Superintendent of EOCI, took any further action. Id.
Plaintiff sets forth the following grounds for relief:
1) Defendants violated his First and Fourteenth Amendment rights when they punished him based on the content of the May 30, 2001, grievance;
2) Defendants wrongfully retaliated against plaintiff because he chose to file a grievance; and
3) Defendants violated his Eighth Amendment rights when they intentionally caused him physical pain when escorting him to disciplinary segregation on May 31, 2001.
Plaintiff's Complaint articulates a prayer for relief in which he does not appear to ask for any damages. However, in his Motion for Summary Judgment, plaintiff asks for numerous monetary and equitable damages. Motion for Summary Judgment (docket #13) at 2. Construing plaintiff's pleadings liberally, this court finds he adequately states his prayer for relief, despite its incorrect placement in his motion for summary judgment.
STANDARDS
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (quoting Fed.R.Civ.P. 56(c)).
"If the moving party meets its initial burden of showing `the absence of a material and triable issue of fact,' `the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Acc. Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). If "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Id.
DISCUSSION
I. Personal Involvement"Liability under section 1983 arises only upon a showing of personal participation by the defendant" in the alleged constitutional deprivation. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Ortez v. Washington County, 88 F.3d 804, 809 (9th Cir. 1996). A supervisor is liable for the constitutional violation of his or her employee if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. Taylor, 880 F.2d at 1045. There is no respondeat superior liability under § 1983. Monell v. New York City Dep't. of Social Services, 436 U.S. 658, 691-94 (1978);Taylor, 880 F.2d at 1045.
A. Defendants Cupp and Hill
Plaintiff does not allege that defendants Cupp and Hill personally participated in violating any of his rights. Instead, plaintiff's claims against Cupp and Hill arise because he sent an inmate communication form to both defendants in which he advised them of Bradley. Plaintiff has not alleged how either of these defendants personally participated in depriving plaintiff of his rights. The fact that plaintiff advised these two defendants of Bradley after his disciplinary hearing does not amount to personal participation in the disciplinary decision that is the substance of plaintiff's complaint. Accordingly, plaintiff's claims against defendants Cupp and Hill should be dismissed.
B. Defendant Burcham
Plaintiff identifies Burcham as a defendant in this action but fails to show how Burcham personally participated in depriving plaintiff of a constitutional right. Defendant Burcham gave Headly the May 30, 2001, grievance form, asking Headly "to take care of it." Defendants' Exh. 101 at 2. After investigating the grievance and ascertaining its author, Headly issued a misconduct report based on the contents of the grievance. Because Burcham merely asked Headly to process the grievance, Burcham did not personally participate in the sanction plaintiff attacks in this action. Accordingly, plaintiff's claims against Burcham should be dismissed.
C. Defendant Allen
Plaintiff "wishes to dismiss the Eighth Amendment violation" (third ground for relief) alleging that defendant Allen used excessive force when transporting plaintiff to disciplinary segregation and focus on his First Amendment and retaliation claims. Response (docket #28) at 1. The court should grant plaintiff's request. With the Eighth Amendment claim dismissed, defendant Allen is not the subject of plaintiff's remaining claims. Thus, plaintiff fails to allege that Allen personally participated in any constitutional violation.
II. Qualified Immunity
Defendants allege they are entitled to qualified immunity from suit. The Supreme Court has clarified the two-step approach to the qualified immunity inquiry. First, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged [must] show the officer's conduct violated a constitutional right." Next, the court must determine whether the right was "clearly established." Saucier v. Katz, 533 U.S. 194, 201-205 (2001). Accordingly, the court first determines whether any defendant violated plaintiff's constitutional rights.
A. Constitutional Violation 1. First Amendment Claim
Plaintiff claims defendants Headly and Sturdevant violated his First and Fourteenth Amendment rights when they punished him based on the content of his May 30, 2001, grievance. "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78 (1987).
In determining whether a prison regulation is reasonably related to legitimate penological interests, the court considers: (1) whether there is a valid, rational connection between the regulation and a legitimate government objective which operates in a neutral fashion without regard to the content of the expression; (2) whether there are alternative means of exercising the right at issue that remain open to the prisoner; (3) the impact that the accommodation of the asserted constitutional right will have on prison staff and resources; and (4) the absence of ready alternatives that fully accommodate the prisoner's rights at de minimus costs to valid penological interests. Thornburgh v. Abott, 490 U.S. 401, 414-419 (1989); Turner, 482 U.S. at 89-90; Mauro v. Arpaio, 188 F.3d 1054, 1058-59 (9th Cir. 1999); Walker v. Sumner, 917 F.2d 382, 385 (9th. Cir. 1990)
Plaintiff contends his case is factually indistinguishable fromBradley in which the Ninth Circuit afforded relief to an Oregon prisoner based on a violation of that prisoner's First Amendment rights. The plaintiff in Bradley submitted a written grievance after a prison guard failed to retrieve him for the law library call-out. The grievance contained the following language:
[The guard's] actions shows her misuse of her authority and her psychological disorder needs attention. Then you wonder why things happen like that guard getting beat down? I suggest you talk to this woman and have her act professionally instead of like a child.Id. at 1278.
After receiving a copy of the grievance, the accused guard filed a disciplinary report against Bradley, charging him with violating Oregon Administrative Regulation ("OAR") 291-105-015(2)(f) (Disrespect II). Bradley was found guilty of the lesser offense of violating OAR 291-105-015(2)(g) (Disrespect III), the same regulation under which plaintiff in this case was ultimately punished.
"An inmate commits Disrespect III when he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written, towards or about another person." OAR 291-105-015(2)(g) (Disrespect III).
The Ninth Circuit, applying the four-factor test set forth in Turner, acknowledged that the ODOC had a "valid interest in the peaceable operation of the prison through the insistence on respect, rather than through violent confrontation," but also found the "link between this important purpose and the disrespect rules as applied to formal written grievances [to be] weak," and considered the ODOC's application of OAR 291-105-015(2) to inmate grievances to be an "exaggerated response" to prison concerns. Bradley, 64 F.3d at 1290-81. Specifically, the court noted that "[i]f a line between honest, unabashed airing of a grievance and `hostile, . . . [or] abusive' language exists, it is a hazy one, leaving the aggrieved prisoner guessing whether he will be punished for what he has said in his formal prison complaint." Id. The court concluded that the prison's legitimate security concerns would be served by shielding those prison officials who are in direct contact with the inmates from reading insulting remarks.
Specifically, the Ninth Circuit found that "the disrespect rules help prison staff display the high degree of self-control necessary in the correctional profession by heading off situations in which inmates may bait or goad guards into unprofessional conduct. . . [T]he Disrespect rules were adopted to aid in prison control through encouragement and enforcement of respect by inmates toward staff and other inmates, and rehabilitation of inmates through insistence on their use of socially acceptable ways of solving their problems. There is no question that these are legitimate penological interests and the disrespect rules further each of these interests." (internal citations omitted) Bradley, 64 F.3d at 1280.
Defendants allege that Bradley is no longer good law in light of the Supreme Court's recent decision in Shaw v. Murphy, 532 U.S. 223 (2001). The plaintiff in Shaw was an inmate who asserted a First Amendment right to provide legal advice to other prisoners, arguing that inmate-to-inmate communications which include legal assistance should receive more First Amendment protection than correspondence devoid of legal assistance. The Court found that there was no such special right, specifically holding that "[t]o increase the constitutional protection based upon the content of a communication first requires an assessment of the value of that content . . . [b]ut the Turner test, by its terms, simply does not accommodate valuations of content. On the contrary, the Turner factors concern only the relationship between the asserted penological interests and the prison regulation." Id. at 230. Shaw strongly emphasized that prison officials are the primary arbiters of problems which arise in the context of prison management, and explicitly rejected the notion that courts are permitted to enhance constitutional protection based on their assessments of the content within particular communications. Id. The Court also noted that if legal content were to be given more protection than other speech protected by the First Amendment, the insertion of legal text into a letter could be an excuse for making "clearly inappropriate comments" which may be expected to circulate among prisoners. Id. While Shaw stressed the limited role federal courts should play in decisions affecting prison administration, it did not mention nor purport to overrule Bradley. Bradley dealt with the protection of the grievance process, not the content within the grievance itself. In focusing on the importance of the grievance process, the Ninth Circuit noted that "[i]f there is any time a prisoner should be permitted to speak freely, it is at the bar of justice." Bradley, 64 F.3d at 1281. Shaw, on the other hand, dealt with content in an inmate-to-inmate letter, declining to extend special protection to specific categories of content in prisoner writings. In fact, the Supreme Court's decision in Shaw declined to engage in theTurner analysis at all, limiting its analysis to "whether inmates possess a special First Amendment right to provide legal assistance to fellow inmates." Shaw, 532 U.S. at 232. Because the scenarios in Shaw andBradley are distinctly different, the court declines to adopt defendants' contention that Bradley is no longer good law.
Defendants also attempt to characterize the May 30, 2001 grievance as an anonymous, unsigned attack on Ness which was never intended to become part of the grievance process. Defendants argue that only when plaintiff was identified as the author of the grievance did he attempt to take refuge in Bradley's holding. This court disagrees. Plaintiff clearly did not hide his identity as the author of the grievance since he placed his name and inmate identification number at the top of the grievance form. Defendant's Exh. 105, Attachment 1 at 10-11. Moreover, plaintiff's grievance, while not artfully crafted, stated a valid complaint, namely that he felt he was being harassed by Ness' actions. In fact, after plaintiff was punished for the contents of the May 30, 2001 grievance, he submitted another grievance which articulated the same complaint against Ness while omitting the most offensive statement contained in the May 30, 2001 grievance. Nevertheless, ODOC officials refused to entertain the edited grievance based on its content. Consequently, it would not appear plaintiff was simply attempting to anonymously insult Ness.
For these reasons, defendants' assertion that plaintiff merely wished to show off by parading his prisoner copy of the grievance in front of other inmates is also unconvincing. Furthermore, this assertion is a generalization since defendants provide no evidence that plaintiff circulated his grievance form among the prison population in an attempt to ridicule Ness.
The Supreme Court's decision in Shaw declined to extend special First Amendment protection to content-based inmate-to-inmate correspondence, whereas the Ninth Circuit emphasized the importance of the grievance process. Consequently, the two cases are distinguishable and thus coexist in harmony. Because plaintiff's case is virtually identical to that of the plaintiff in Bradley, and because plaintiff made a good-faith effort to file a legitimate grievance against Ness, defendants Sturdevant and Headly violated plaintiff's First Amendment rights when they punished him based on the content of the May 30, 2001, grievance.
2. Retaliation
Plaintiff also claims his disciplinary sanction was imposed in retaliation for his use of the grievance system to voice his complaint. In order to prove a retaliation claim, plaintiff must demonstrate the following: (1) he exercised a constitutional right; (2) defendants' behavior was in retaliation for plaintiff having exercised that right; and (3) defendants' actions either did not advance legitimate correctional goals or were not narrowly tailored to meet those goals.Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).
An examination of the record reveals that defendants did not retaliate against plaintiff for his use of the grievance system, but punished him under the mistaken assumption that Bradley was no longer valid legal precedent. Aside from the disciplinary action taken the day after he filed his grievance, plaintiff fails to direct the court to any evidence tending to show that prison officials retaliated against him solely because he chose to utilize the grievance process. Given these facts, plaintiff has not met his burden of proof with respect to the retaliation claim.
B. Clearly Established Right
Since the court holds that Headly and Sturdevant violated plaintiff's First Amendment rights, it is necessary to determine whether the violated right was "clearly established." In conducting this inquiry, the court turns to Supreme Court and Ninth Circuit law existing at the time of the violation. Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996). For the law to be clearly established, "[t]he contours of the right" must be sufficiently clear that a reasonable official would understand that his conduct violates that right. Anderson v. Creighton, 483 U.S. 635 (1987). The relevant inquiry is wholly objective; an official's subjective belief as to the lawfulness is irrelevant. Id. at 641. The qualified immunity standard "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 227 (1991)
As discussed above, Bradley is unaltered by Shaw and remains good law. Thus, at the time plaintiff was sanctioned for his May 30, 2001 grievance, the Ninth Circuit had clearly held that in circumstances such as those involved here, sanctioning an Oregon prisoner under OAR 291-105-015(2)(g) (Disrespect III) violated an inmate's First Amendment rights. While the court recognizes that a defendant's subjective belief is irrelevant to the qualified immunity inquiry, it is nevertheless telling that plaintiff was able to direct prison officials to Bradley, and that Sturdevant indicated he was "well aware of the Bradley v. Hall rule. It's a rule that hearings officers are required to be up to speed on." Defendants' Exh. 105, Attachment 1 at 8.
Moreover, in the context of a prison regulation requiring inmates to pay for publications they receive, the Ninth Circuit recently held that the existence of binding precedent holding such a policy unconstitutional "would easily dispose of prong two" of the qualified immunity analysis.Sorrels v. McKee, ___ F.3d ___, 2002 WL 826888, at *4 (9th Cir. May 2, 2002). Since the existence of binding precedent held the application of OAR 291-105-015(2)(g) (Disrespect III) unconstitutional as applied to the contents of a prison grievance, a reasonable corrections official would have been aware that disciplining plaintiff under the facts of this case was contrary to clearly established law. Accordingly, neither defendant Headly nor defendant Sturdevant is entitled to qualified immunity from suit for violating plaintiff's First Amendment rights when they sanctioned him based on the content of his grievance.
RECOMMENDATIONS
For the reasons discussed above:
1. Plaintiff's request for dismissal of the Eighth Amendment claim should be granted and the third ground for relief should be dismissed;
2. Plaintiff's Motion for Summary Judgment (docket #13) should be GRANTED as to his First Amendment claim against defendants Headly and Sturdevant (first ground for relief) and otherwise DENIED;
3. Defendants' Cross-Motion for Summary Judgment (docket #22) should be GRANTED as to plaintiff's retaliation claim (second ground for relief) and as to defendants Jean Hill, Tom Cupp, Michael Burcham, and Scott M. Allen and DENIED as to plaintiff's First Amendment claim against defendants Headly and Sturdevant.SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due June 3, 2002. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than June 20, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.