Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Linda Vega, Defendant. Karin Jean Smith, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) No. CV 04-0558-PHX-EHC (CRP) ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

JDN

Plaintiff, an inmate in the custody of the Arizona D ep art ment of Corrections (ADC), filed this civil rights action pursuant t o 42 U.S.C. § 1983 against Correctional Sergeant Linda Vega, M ail and Property Supervisor at the Perryville Prison Complex (Am. Comp l., Doc. #46). Defendant moved for s ummary judgment, Plaintiff responded, and Defendant Defendant then filed "Objections and M otion to Strike or

replied (Doc. #47, 53, 54).

Exclude Portions of Plaintiff's St at ement of Facts" (PSOF) (Doc. #55). The Court will deny both of Defendant's motions. I. Background Plaintiff filed an Amended Complaint alleging that Defendant retaliated agains t her for making complaints regarding mail delivery at the prison (A m. Compl., Doc. #46). Her claim aros e in September 2003, when Plaintiff became concerned that her out-going legal mail was not being sent and t hat she was not receiving in-coming legal mail. Plaintiff

alleged that she s p oke with her CO III about her intent to grieve the issue, and he advised

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her to write to the Complex M ail Supervisor (PSOF ¶ 9, Ex. 1, Doc. #53). Plaintiff submitted an Inmate Letter on September 29, 2003, to Defendant about the mail problem, to which she received no response (Id. ¶¶ 10, 14). Plaintiff alleged t hat on October 28, 2003, she saw D efendant and asked her about the lack of response to the Inmate Letter and informed her that Plaintiff did not receive an authorized catalog from the publisher (Id. ¶¶ 15, 17). Defendant claimed that she advised Plaint iff t o voice her complaints in an Inmate Letter according to prison policy (Def. Aff. ¶ 5, Ex. 3, Doc. #48). D efendant als o claimed that

Plaintiff's inquiry raised a serious concern about the delivery of legal mail; thus, prompting her to investigate the issue (Id. ¶ 11). Plaintiff alleged that later that same day, CO II Jacobs informed her t hat Defendant told him to instruct Plaintiff to "keep her opinions t o hers elf" (Doc. #46 at 4C; PSOF ¶ 24). In her investigation of the matter, Defendant attested that she checked the prison's mail log and not ed t hat legal mail had been sent to Plaintiff on October 11, 2003 (Def. Aff. ¶ 13, Doc. #48). Defendant contacted the mailroom officer who confirmed that Plaintiff signed

for the receipt of legal mail on that same date (Id. ¶ 15). D efendant then telephoned Jacobs and ordered him to ask Plaintiff if she had received legal mail on O ct ober 11, 2003. Plaintiff believed that her last receipt of legal mail w as O ct ober 10, 2003, so she replied in the negat ive (Doc. #46 at 4C; PSOF ¶ 25). However, Defendant was able to re-confirm ­ by reviewing the prison's mail log in person ­ t hat Plaintiff had, in fact, signed for the receipt of legal mail on October 11, 2003 (Def. Aff. ¶ 18, Attach. C, Ex. 3, Doc. #48). Later that day, Defendant issued an Inmate Discip linary Report against Plaintiff for violation of Rule B05 ­ lying or representing false or misleading information to staff (Def. Aff. ¶ 20). The next day, Plaintiff's security clearance was terminated, s he was removed from her job site, and s he w as placed on the interior hard labor crew at the lowest rate of pay (Doc. #46 at 4D). At the subsequent disciplinary hearing on the matter, Plaintiff was

denied the opportunity to call Jacobs as a witness or submit statements from him (Id. at 4F). Plaintiff was found guilty of a major violation and subjected to disciplinary detention, 40 hours unpaid extra duty, 30 days loss of telephone and commissary privileges, increased -2Filed 12/29/2006

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risk score, 6 months hard labor crew, and 6 months loss of higher education program eligibility (Id. at 4F-4G). Plaintiff's claim is that Defendant issued the Disciplinary Ticket in retaliation for her complaint about mail mishandling and her submission of the Inmate Letter, which are protected activities under the First Amendment. Defendant moves for summary judgment on the basis that Plaintiff failed to exhaust available administrative remedies as to the retaliation claim against her (Def.'s M ot. for Summ. J ., Doc. #47). Defendant further argues that Plaintiff cannot establish retaliat ion

because Plaintiff was not engaged in protect ed conduct, Defendant's actions were not retaliatory but rather advanced a legitimate correctional goal, and Plaintiff's First

Amendment rights were not chilled. by the Eleventh Amendment.

Finally, Defendant contends that this claim is barred

In respons e, Plaintiff argues that the Court has already ruled on the issue of exhaustion and determined that the claim was a disciplinary is s ue that Plaintiff properly exhausted (Resp., Doc. #53). She directly refutes Defendant's assert ion that a retaliation

claim does not lie and argues that the standard to establish a retaliation claim has been met. Plaintiff further states that her conduct ­ corres pondence with her attorney, receipt of publications, and filing of grievances ­ constitut es p rot ected activity for which there can be no legitimate penological reason for stifling. supports a finding of retaliatory motive. In addition to a Reply, Defendant filed "Objections and M otion to Strike or Exclude P ort ions of PSOF" in which she objects to numerous statements for various reasons (D oc. #55). M ore than 20 objections are made on the ground that t he statements were not And Plaintiff argues that the evidence

supported by the attachments cited, or that a specific portion of the record where those facts may be found was not identified (Id.). Because the PSOF is presented as a sworn

s t at ement, and in light of Plaintiff's pro se status, the Court will also construe it as

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declaration and therefore overrule these objections.1 See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). II. Exhaustion Defendant seeks summary judgment on the basis that Plaintiff failed to exhaust administrative remedies as to t he claim that Defendant retaliated against her. Where

exhaustion is raised in a summary judgment motion, the Court should treat it as an unenumerated motion under Rule 12(b). Ritza v. Int 'l Longs horemen's and

Warehousemen's Union, 837 F.2d 365, 368-69 (9th Cir. 1988). Accordingly, the Court will treat Defendant's argument as if it had been raised in an unenumerated Rule 12(b) motion to dismiss for lack of exhaustion. A ls o, the issue of exhaustion must precede consideration of t he merits issues that were also raised by Defendant in her summary judgment mot ion. See Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 536 (7th Cir. 1999). T he Court previously ruled on the issue of exhaustion. In her initial M otion t o

Dismiss, Defendant argued that Plaintiff failed to exhaust her administrative remedies because her claim was a "staff" issue and thus, Plaintiff was required to comply w it h t he standard grievance process as s et forth in ADC Department Order 802 (Doc. #8 at 4). In its Order dated M ay 25, 2005, the Court denied D efendant's motion and held that the issue in dispute was w hether Defendant filed the Disciplinary Report against Plaintiff in ret aliation for complaints regarding the handling of inmate mail (Doc. #14). Because t he

claim concerned a disciplinary issue, which cannot be grieved under the ADC grievance procedures, and because Plaintiff exhausted her administrative appeals in the disciplinary case, dismissal for lack of exhaustion was not warranted (Id.). Defendant now presents the same argument on the issue of exhaus t ion; specifically, that Plaintiff could have grieved her claim either through the standard grievance process

The Court will sustain Defendant's objections to PSOF ¶¶ 4, 12, and 40, t o the extent that the information contained in those statement s is not relevant to the issue before 27 the Court. However, the object ions on the same ground for PSOF ¶¶ 5-7, 16, 35, will be 28 overruled. D efendant's other objections and motion to strike, unless otherwise noted, will be overruled. -4Case 2:04-cv-00558-EHC Document 60 Filed 12/29/2006 Page 4 of 12 26
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or as a "st aff grievance" under ADC Department Order 802.12 (Doc. #47 at 9). The current motion to dismiss is therefore more appropriately viewed as a motion for reconsideration. M otions for reconsideration should be granted only in rare circums t ances . Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). appropriate if the district court (1) is Defenders of

"Reconsideration is

p resented with newly discovered evidence,

(2) committed clear error or t he initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, M ultnomah Count y , O r. v. A CandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). M otions for reconsideration must be filed w it hin t en days after the filing of the Order that is the subject of the motion. LRCiv 7.2(g). Defendant's request for reconsideration of its Order concerning exhaustion is untimely. Further, nothing in Defendant's motion causes the Court to reconsider its prior det ermination that the issue in this action concerns a disciplinary matter that could not be grieved under ADC Department Order 802. Accordingly , dismissal on this ground will be denied. III. S ummary Judgment A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving p art y is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the moving part y bears t he initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine is s ue of material fact. Celotex Corp., 477 U.S. at 323. If t he moving party meets its initial responsibility the burden then shifts to the op p osing party who must demonstrate that the fact in contention is material, i.e., a fact t hat might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and t hat t he dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 250; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. -5Filed 12/29/2006

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1995).

The opposing party need not establish a material issue of fact conclusively in its

favor; it is sufficient that " t he claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of t he t ruth at trial." First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). When considering a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. III. Analysis A. Retaliation To meet her burden on summary judgment, Defendant mus t come forward with the lack of a triable issue of fact; namely, evidence that Plaintiff was not iss ued a dis ciplinary ticket in retaliation for complaints and a grievance about legal mail delivery. A claim of

retaliation for filing a prison grievance "raises const itutional questions beyond the due process deprivation of liberty." See Austin v. Terhune, 367 F .3d 1167, 1170 (9th Cir. 2004). The N int h Circuit set forth the five basic elements of a First Amendment retaliation claim: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct and that such action (4) chilled the inmate's exercise of her First Amendment rights (or that the inmate suffered more t han minimal harm) and (5) was not narrowly tailored t o advance a legitimate correctional goal. Rhodes v.

Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims require an inmat e mus t show (1) that the prison official acted in retaliation for the exercise of a constitutionally-prot ect ed right, and (2) that the action "advanced no legitimate penological interest"). The pris oner must submit evidence linking the alleged retaliation to the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Further, these types of claims mus t be evaluated in light of the deference and flexibility that must be accorded to prison officials. Id. -6Filed 12/29/2006

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B. First Amendment Prisoners have a constitutionally-protected right t o file grievances and to pursue civil rights litigation without retaliation. Rhodes, 408 F.3d at 567; see also Hines, 108 F.3d at 267 (prisoner may not be retaliated against for use of grievance system); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (prisoner may not be penalized for exercising the right of redress of grievances). Because harm t hat is more than minimal will always have a chilling effect, an inmate need not expressly allege a chilling effect to have a viable claim of First Amendment retaliation. Rhodes, 408 F.3d at 568 n. 11. A plaintiff must only demonstrate that a defendant intended to interfere with the plaintiff's First Amendment rights, regardless of whether the plaintiff was actually silenced. M endocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). C. Defendant's Motion Defendant seeks summary judgment on the basis that Plaintiff has failed to proffer sufficient evidence to raise a question of material fact as to four of the five elements set forth in Rhodes (Doc. #47 at 13-17). There is no dispute that Defendant t ook s ome adverse action against Plaintiff when she is s ued the disciplinary ticket. Defendant contends, M endocino Envtl. Center v.

however, that P laintiff was not engaged in protected conduct because it was only Plaintiff's false statement to correctional staff ­ regarding whether she received mail on October 11, 2003 ­ that resulted in the dis cip linary ticket. In her affidavit, Defendant states that had P laint iff been truthful in response to the inquiry, she would not have written the Disciplinary Report and instead, would have continued the investigation into whether legal mail was not properly handled (Def. Aff. ¶ 22, Ex. 3, Doc. #48). The copy of the Disciplinary Report only refers to Plaintiff's response as the grounds for the ticket (Id., Attach. D). Defendant also alleges that she did not issue the disciplinary ticket with a retaliatory motive. In addition, Defendant attests that she was not the official who classified the M oreover, she specifically

charge against Plaintiff as a major violation (Def. Aff. ¶ 22).

s t ates that she did not issue the ticket with retaliatory intent or to deter Plaint iff from pursuing legitimate mail complaints (Id. ¶26). -7Filed 12/29/2006

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Defendant maintains t hat her actions did not chill Plaintiff's exercise of any First Amendment rights. In support, she proffers cop ies of numerous Inmate Letters submitted by Plaintiff after the Disciplinary Report at iss ue in this case (Attach. A, Ex. 5, Doc. #48). F our of these Inmate Letters concern inmate mail, supporting Defendant's claim that the disciplinary ticket did not deter Plaintiff from pursuing complaints about her legal mail. Finally, Defendant contends that the disciplinary ticket against Plaintiff served the legitimate correctional goal of preserving order and dis cipline (Walker Decl. ¶¶ 9, 10, Ex. 4, Doc. #48). Former Perryville Deputy Warden Sandra Walker declared that the Internal

M anagement Policy (IM P) identifies lying or presenting false or misleading information to staff as a Group B violation worthy of sanctions because prison officials oft en make decisions or instigate investigations based on information from inmates (Id. ¶¶ 7, 9). Consequently, penalizing inmates for making false statements serves the legitimate penological goal of preventing unnecessary use of prison resources (Id.). Defendant has met her initial burden of presenting the basis of her motion and submitted evidence she believes shows the absence of a genuine issue of material fact. D. Plaintiff's Response The burden shifts t o P laintiff to offer evidence from which an inference can be drawn that Defendant retaliated against her for complaining about inmat e mail by issuing a disciplinary ticket for lying. In doing so, Plaintiff may not rely up on the allegations or denials of her pleadings, but is required to tender evidence of specific facts in support of her contention that the disput e exis t s . See Fed. R. Civ. P. 56(e); M atsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, Plaintiff must demonstrate that Defendant's conduct served no legitimate correctional goal. Pratt, 65 F.3d at 808. Plaintiff disputes Defendant's characterization of the conduct she was engaged in when the disciplinary t icket was issued. Plaintiff submitted evidence that she initiated the grievance system with an Inmate Letter on Sep t ember 29, 2003, regarding her concern about inmate mail handling, which appeared to be interfering with her right to correspond with her attorney and to receive publications (PSOF ¶ 10, Ex. 1, A t t ach. E, Doc. #53). -8Filed 12/29/2006

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Plaintiff argues that Defendant's adverse action was in response to her filing a grievance and making subsequent inquires about her complaint, which ­ as previously stated ­ is protected activity. In support of her claim t hat the disciplinary ticket was issued with a retaliatory motive, Plaintiff proffered a cop y of the Witness Statement forms she prepared for the subsequent disciplinary hearing, case No. 03B041094 (Attach. J, Doc. #53). On the first

two forms, Plaintiff requested that CO II Jacobs appear as a witness in t he disciplinary hearing and that he respond to the following three questions: (1) Isn't it true Sgt . Vega called you 2 times after the incident that prompted this ticket? First to have you tell me to "keep my op inions to myself" and again to advise me of a ticket? (2) I was present when Sgt. Vega called you and told you "to advise me." After you did so, weren't we both surprised becaus e t he incident didn't warrant her act ion? Isn't it also true I asked you "why is the Sgt. doing this? To which you replied "she's throwing her weight around because you made her mad" [by asking about my unanswered kite and missing legal mail]. (3) Is n't it t rue you detected no "intent to deceive" in my response to Sgt. Vega [about receiving legal mail on the 10th ], but that I was merely mistaken? Id. Plaintiff submitted a third form completed by CO II Jacobs, which reflected that his answer to each of these questions was "yes" (Id.). Defendant objects to the Witness Statement forms on the basis t hat they lack foundat ion, are unauthenticated, and contain inadmissible hearsay (Doc. #55 at 6). In a

sworn statement Plaintiff describes the dat e t hese forms were prepared and states that Sergeant M endoza, badge # 244, provided the forms and was present when they were prepared (PSOF ¶ 30). All these forms are identified by t he case No. 03B041094, are signed by M endoza, and the form with the answers is also signed by Jacobs (Attach. J, Doc. 53). Plaintiff declares that these forms were part of the Discip linary Hearing records she obtained from Defendant during discovery and therefore constitute business records (PSOF ¶¶ 37-38). M oreover, Plaintiff's declaration, which was submitted in support of her opposition to Defendant 's motion, sets forth these same facts in support of her original allegat ions (Ex. 1, Doc. #53). For these reasons, and without more explanation for the bas is -9Filed 12/29/2006

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of her objection, the Court will overrule Defendant's objection. Defendant contends that if Plaintiff responded trut hfully to Defendant's question about the receipt of legal mail on a specific date, the dis cip linary ticket would not have been issued. If Plaintiff's evidence is believed, however, she was issued a discip linary

ticket not for ly ing, but because Defendant was mad at her for the grievance and inquiries about the legal mail issue. On summary judgment , t he Court does not determine the truth of the matters asserted but only determines whether there is a genuine issue of material fact that must be resolved by trial. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9t h Cir. 1997). Plaintiff has sufficiently demonstrated that there exists a material question of fact as to whether Defendant's non-retaliatory reason for issuing the t icket was sufficient to provoke the adverse action. In response to Defendant's claim that Plaintiff's subsequent utilization of the grievance process ­ including complaints about her legal mail ­ proved that Plaintiff's speech was not chilled, P laintiff argues that the "chilling effect" is not required to establish a First Amendment violation (Doc. #53 at 15). Plaintiff is correct. An inmate need not

prove a total chilling of t heir protected speech in order to pursue a retaliation claim. Rhodes, 408 F.3d at 568. There is no requirement t hat one demonstrate that their speech was actually inhibited or suppressed. M endocino Envtl. Center, 192 F.3d at 1300. The

evidence shows that although P laintiff submitted numerous other Inmate Letters to the Deputy Warden, she never submitted another Inmate Letter to Defendant ­ who was the M ail and Property Sergeant until July 31, 2004 ­ regarding her concerns about the inmate legal mail (A t tach. A, Ex. 5, Doc. #48; Def. Aff. ¶ 2, Ex. 3, Doc. #48). Nevertheless, Plaintiff has raised a credible allegat ion of an intent to chill on the part of Defendant that is sufficient to create a genuine issue of material fact. Finally, Plaintiff argues that there was no legitimate penological goal for Defendant's action. A prison official may not defeat a retaliation claim on s ummary judgment simply by articulating a general justification for a neutral process when there is a genuine issue of material fact as to whether the action was taken in retaliation for t he exercise of a - 10 Filed 12/29/2006

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constitutional right. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003). The Ninth Circuit has held that the "some evidence" standard ­ if t here is any evidence in the record that could support the action ­ does not apply to retaliat ion claims. Id. at 1289 (citing Hines, 108 F.3d at 269. In Bruce, the Court found that although there was a legitimate penological interest in validating gang members in prison and stopping gang activity, if prison officials abused the gang validation procedure as a cover to punish the plaintiff for filing grievances, they cannot assert that the validation served a valid penological purpose, "even t hough [the plaintiff] may have arguably ended up where he belonged." Bruce, 351 F.3d at 1289

(emp hasis in original). Consequently, if the ticket was issued as a cover to punish Plaintiff because she filed a grievance, Defendant cannot as s ert that the disciplinary ticket served a valid penological purpose and likewise, cannot defeat the retaliation claim on s ummary judgment. Plaintiff has sufficiently alleged that the retaliatory act was not reasonable and

did not serve any legit imat e correctional goal, thereby raising a material question of fact on this issue. In sum, the Court finds that there is a dispute between the parties as to whether Defendant's adverse act ion was because of Plaintiff's protected conduct, was intended to chill Plaintiff's exercise of her First Amendment rights, and did not serve a valid penological goal. Accordingly, summary judgment for Defendant will be denied. IV. Eleventh Amendment Defendant is correct that in her official capacity, she cannot be sued for monetary damages (Doc. #47 at 13). But t he Eleventh Amendment does not bar suits seeking

damages against state officials in their individual capacity. Hydrick v. Hunter, 466 F.3d 676, 688 (9th Cir. 2006). Plaintiff's Amended Complaint states that Defendant is being sued in her individual and official capacities (Doc. #46 at 2). Therefore, there is a p res ump t ion that Plaintiff is seeking monetary damages agains t Defendant in her individual capacity, and the Eleventh Amendment does not bar this claim. See Hydrick, 466 F.3d at 688. IT IS ORDERED: (1) Defendant's M otion for Summary Judgment (Doc. #47) is denied. - 11 Filed 12/29/2006

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(2) Defendant's Objections and M otion to Strike or Exclude Portions of Plaintiff's Statement of Facts (Doc. #55) is denied. DATED this 28th day of December, 2006.

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