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

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Case 2:03-cv-02373-SRB Document 134 Filed 08/11/2006 Page 1 of 11

LMH

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Andre Almond Dennison, Plaintiff, vs.

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No. CV 03-2373-PHX-SRB (JRI) ORDER

Plaintiff Andre Almond Dennison, a state prisoner, filed this civil rights action. Presently pending is Defendants' Motion for Summary Judgment (Doc. ##88-89). Plaintiff has responded, and Defendants have replied (Doc. ##116, 122-23). The Court will grant the motion in part and dismiss all claims and Defendants except for the retaliation claim against Defendant James. I. Background After Plaintiff's Complaint was screened, two claims remained: (1) Count I against Defendants Deputy Warden Conrad Luna and former Arizona Department of Corrections Director Terry Stewart for failure to protect, and (2) Count II against Defendants Lt. Emore, Librarian Cooper, and CO III James, Fridenmaker, Nelson, Pinson, and Hewitt, for retaliation (Doc. #4). In his Complaint, Plaintiff alleged that the corrections officers at the Rynning Unit in Florence continually targeted him for harassment. He informed Luna and Stewart but

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they did nothing. Plaintiff further claims that Defendant James shoved him into a fence and pepper sprayed him in retaliation for a lawsuit Plaintiff filed against Officer Jennifer Thelen. According to Plaintiff, Fridenmaker, Nelson, Pinson, Hewitt and Cooper filed false reports to support James' version of the events that Plaintiff was the aggressor in the incident. Defendants moved for summary judgment, contending that (1) the record does not support Plaintiff's claims, (2) the official-capacity defendants have Eleventh Amendment immunity for money damages claims, and (3) the Defendants are entitled to qualified immunity (Doc. ##88-89). Plaintiff responded that there are genuine issues of material fact, and Defendants are not entitled to qualified immunity, though he defers to the Court on Eleventh Amendment immunity (Doc. ##122-123). Defendants replied that Plaintiff's Response failed to show a genuine issue of fact (Reply, Doc. #116). II. Summary Judgment Standard 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 party 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). When considering a summary judgment motion, the evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). These inferences are limited, however, "to those upon which a reasonable jury might return a verdict." Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1220 (9th Cir. 1995). Rule 56(c) mandates the entry of summary judgment against a party who, after adequate time for discovery, fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23. In such a situation, there can be no genuine issue of material fact, since a complete failure of proof concerning an essential element of a nonmoving party's case necessarily renders all other facts immaterial. Id.

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III. Count I: Failure to protect A. Factual Background This action is different from the typical "failure to protect" case, because Plaintiff does not allege that he was harmed by a fellow inmate but by corrections officers. In Count I, Plaintiff alleged that he was targeted by corrections officers, who took false disciplinary action against him, refused to feed him, harassed him by handcuffing and searching his cell in a destructive manner, denied him jobs and educational programs, shattered his window, and engaged in physical violence. Plaintiff alleged that he notified former ADC Director Stewart and Deputy Warden Luna about the "malicious misconduct" by their subordinate officers, but their refusal to act allowed the misconduct to escalate (Compl. at 4). Defendants Stewart and Luna contend that they responded reasonably to the little notice they received about the situation. Deputy Warden Luna asserts that the only contact he had with Plaintiff was two inmate letters and a meeting. Specifically, on March 30, 2002, Luna received a letter from Plaintiff claiming that Lt. Lewis was issuing unwarranted disciplinary reports and placing Plaintiff on restrictions. A few days later on April 4, 2002, Luna received another letter from Plaintiff that "Lt. Lewis and subordinate staff [are] targeting me," and that two officers (Kohn and Garner) said he was "dumb." Plaintiff wrote that he could not take it anymore, and he wanted to have a meeting with Luna. Luna responded to both letters. In the response to the first letter, Luna wrote that Plaintiff had failed to obey an order, and Lewis' conduct was appropriate. For the second letter, Luna initially met with Plaintiff on April 16 to discuss his concerns and on the 24th, Luna wrote that Plaintiff had the opportunity to air his concerns (DSOF ¶¶ 20-24 & Ex. 2, Luna Decl. ¶¶ 5-9 & Attach. A-D). Luna does not recall any other communication with Plaintiff before this lawsuit (Luna Decl. ¶ 11). Director Stewart had only one contact with Plaintiff. Plaintiff filed a grievance appeal claiming that his issues about misconduct by staff had not been addressed. Stewart responded that the appeal had no merit because Plaintiff failed to substantiate his allegations with documentation (DSOF ¶¶ 25-26 & Stewart Decl. ¶¶ 6-7 & Attach. B).
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In response, Plaintiff generally asserts that he notified Luna about the abuse with "numerous Inmate Letters and numerous in-person contact[s]" (Resp. at 4, 14; PSOF ¶¶ 1418 & Ex. 1, Pl.'s Aff. ¶ 13). Notably, Plaintiff has not asserted what he wrote in his letters, nor has he submitted any documentation to show what he wrote. He also has not specifically asserted when he met with Luna and what was said. Plaintiff also asserts that he filed grievances about the abuse (Resp. at 4, PSOF ¶ 14). To support his claim, he refers to a response to a Request for Admissions but he has not attached a copy of the admission. Without a copy, Plaintiff's assertion is unsubstantiated. Plaintiff asserts that he was pursuing administrative remedies before bringing this action (Resp. at 5), but he does not assert that either Luna or Stewart received these grievances. Plaintiff also submits the affidavits of Inmates Boyd, Brent and Cobb, who assert that Plaintiff filed grievances with the administration but his grievances were ignored or returned unprocessed (Resp. at 4, PSOF ¶ 17, Ex. 2, Boyd Aff.; Ex. 3, Brent Aff. ¶ 13; Ex. 4, Cobb. Aff. ¶ 7). These inmates, however, have not asserted that they observed Stewart or Luna receive Plaintiff's grievances and read them. Rather, their statements that the grievances were ignored or unprocessed indicates that Luna and Stewart were not aware of them. In his Complaint, Plaintiff listed the misconduct against him ­ false disciplinary charges, malicious handcuffing, denial of prison jobs and education, destructive cell searches ­ but he has not named the persons who were involved in each of these incidents. Plaintiff also asserts that Luna and Stewart refused to conduct an investigation after a series of incidents involving other officers (Resp. at 5-7, 14; PSOF ¶ 24 & Pl.'s Aff. ¶ 17), but there is no evidence that Luna or Stewart were aware of any of these incidents. B. Analysis For a claim of failure to protect, the Eighth Amendment is violated when there is (1) a sufficiently serious deprivation, which means that the inmate is incarcerated under conditions posing a substantial risk of harm, and (2) a sufficiently culpable state of mind, which means that the prison official was deliberately indifferent to inmate safety. Farmer v. Brennan, 511
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U.S. 825, 834 (1994). A negligent failure to protect does not pass constitutional muster. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986). For deliberate indifference, the inmate must show that the official knew of and disregarded an excessive risk to inmate safety. Farmer, 511 U.S. at 837. The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and the official must also draw the inference. Id. Knowledge may be proven in the usual ways, including by circumstantial evidence or by the very fact that the risk was obvious. Farmer, 511 U.S. at 842. Prison officials may avoid liability by presenting evidence that they lacked knowledge of the risk. Id. at 844-45. They might show, for example, that "they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent." Id. at 844. Officials who lack knowledge of a risk or officials who responded reasonably to a known risk cannot be said to have inflicted punishment that violates the Eighth Amendment. Id. On this record, the element of knowledge has not been met. Luna's contacts with Plaintiff involved two inmate letters and a meeting. Luna believed that Plaintiff's first letter complaining that Lewis took unwarranted disciplinary action against Plaintiff was unsubstantiated. For the second letter, Luna gave Plaintiff an opportunity to air his grievances about Lewis and other officers saying that he was "dumb." Notably, neither letter describes any risk that Plaintiff would be physically attacked by Officer Lewis or any other officer. The letters only described harassing conduct, not any implicit or explicit threat of physical harm. Although Plaintiff claims the misconduct by the officers escalated into a physical attack by Officer James, the record does not show that Luna could have known that Plaintiff faced a substantial risk of serious harm from James or any other officer. Luna's response to the letters was not unreasonable, and his failure to take any further steps also was not unreasonable.

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Similarly, Stewart had one contact with Plaintiff through a reply to a grievance in which Stewart rejected Plaintiff's claims, and it is unclear how Stewart was alerted about any risk of physical attack. Plaintiff's grievance described only harassing conduct. In sum, the record does not contain evidence, circumstantial or otherwise, to show Luna and Stewart had knowledge of a substantial risk of harm to Plaintiff at the hands of James or any other corrections officer. A reasonably jury could find only that their responses to Plaintiff's letters and grievance were reasonable. The Court will therefore grant summary judgment in favor of Luna and Stewart on Count I. IV. Count II: Retaliation A. Factual Background Plaintiff believes that Defendants Emore, Cooper, James, Fridenmaker, Nelson, Pinson, and Hewitt retaliated against him for filing a lawsuit against CO III Jennifer Thelen, a grievance coordinator. On April 22, 2003, Thelen was served with a Complaint in Dennison v. Stewart, CV 02-1941-PHX-SRB (JRI) (D. Ariz.) claiming that she denied Plaintiff access to the grievance process. Thelen worked in the Programs Building at the Meadows Unit, where James was a Sergeant until he was promoted to CO III and transferred across the street to the Rynning Unit. Eight days after Thelen was served, on May 1, 2003, Plaintiff and CO III James were involved in an incident. Plaintiff asserts that he was called to the programs building of the Rynning Unit to sign a notice for his upcoming reclassification hearing, and he was given permission to return to his cell to retrieve some paperwork for his hearing to be held later that day. When he returned to the programs area, Defendant Hewitt called to James that Plaintiff was back, and James told Hewitt to have Plaintiff wait outside. James came out of the building and told Plaintiff that he would not get a classification hearing. When Plaintiff asked why, James allegedly told him to file a grievance against him and sue him like he did Thelen. James called him a "lawyer boy piece of shit," then shoved him into a fence and used pepper spray against him. The response team arrived and handcuffed Plaintiff, who suffered injuries in the incident.
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James and Fridenmaker filed a reclassification form stating that Plaintiff had walked out of a reclassification hearing, and Plaintiff claims the form was false. James and the other officers filed reports claiming that Plaintiff threw the first punch, and Plaintiff claims their reports were false. Plaintiff was charged with a disciplinary infraction from the incident with James, and Plaintiff claims there was a videotape that shows that James provoked the incident and Plaintiff did not resist. Plaintiff was found guilty of assault on staff, and he was transferred to Special Management Unit I, a higher-level custody level. Criminal charges against Plaintiff for aggravated assault in the Pinal County Superior Court were ultimately dismissed. Defendants' version of events is quite different from Plaintiff's. According to Defendants, Plaintiff had his classification hearing on May 1, 2003, and he asked for an override to lower his risk scores. Fridenmaker explained that he was ineligible for a score reduction, and Plaintiff became upset and walked out. Plaintiff returned to the programs area with some papers from his cell, and Hewitt told him that his hearing was over and to return to his housing unit. Plaintiff began to argue, and James stepped out of his office and told Plaintiff to return to his housing unit. Plaintiff continued to refuse to leave, and James ordered him to turn around and be handcuffed. Plaintiff got into a fighting stance, and Hewitt activated the Incident Management System. James again ordered him to cuff up, and Plaintiff pushed him. James sprayed him with two short bursts of OC spray. James attempted to cuff Plaintiff, and he punched James in the face. The response team arrived and cuffed Plaintiff. Later that day, Cooper, Emore, Hewitt, Pinson, Nelson, James and Fridenmaker submitted reports of the incident (DSOF ¶¶ 44- 61). None of the Defendants assert or deny that James commented about Plaintiff's action against Thelen or being a "lawyer-boy." One issue that is disputed is whether Defendants know Officer Thelen. Only Defendant Pinson admits that she knows Thelen from sharing a van-pool (DSOF Ex. 9, Pinson Decl. ¶ 15). Defendants James, Cooper, Emore, Fridenmaker, and Hewitt assert that they do not know her (DSOF, Ex. 5, Cooper Decl. ¶ 14; Ex. 6, Emore Decl. ¶ 19; Ex. 7,
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Fridenmaker Decl. ¶ 24; Ex. 8, Hewitt Decl. ¶ 19; Ex. 10, Nelson Decl. ¶ 14; Ex. 11, James Decl. ¶ 22). Defendants Pinson, James, Emore, Fridenmaker, Hewitt, and Nelson assert that they were not informed before this lawsuit that Plaintiff had sued Thelen (DSOF Ex. 6, Emore Decl. ¶ 19; Ex. 7, Fridenmaker Decl. ¶ 24; Ex. 8, Hewitt Decl. ¶ 19; Ex. 9, Pinson Decl. ¶ 15; Ex. 10, Nelson Decl. ¶ 14; Ex. 11, James Decl. ¶ 22). Plaintiff claims that James, Hewitt, Cooper, Fridenmaker, Pinson and Nelson do know Thelen (PSOF Ex. 1, Pl.'s Aff., ¶ 62). Plaintiff says that he has seen Thelen and James together by themselves on numerous occasions walking together and eating lunch, and Plaintiff has seen Thelen eating lunch with Defendants Hewitt, Nelson, and Pinson at a picnic table outside of the Rynning Unit's program building (PSOF Ex. 1, Pl.'s Aff., ¶¶ 23-24). B. Analysis A viable claim of First Amendment retaliation contains five basic elements: (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 his First Amendment rights (or that the inmate suffered more than minimal harm) and (5) was not narrowly tailored to advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005); Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997). These types of claims must be evaluated in light of the deference and flexibility that must be accorded to prison officials. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 1. All Defendants except Defendant James The inmate must submit evidence to establish a link between the exercise of constitutional rights and the alleged retaliatory action. Pratt, 65 F.3d at 807. There is no evidence on the record to show that Defendants Emore, Cooper, Fridenmaker, Nelson, Pinson, and Hewitt had learned about the lawsuit between the time Thelen was served on April 22 and the May 1 incident. For each of these Defendants, the only evidence is that Plaintiff had seen Thelen have lunch "on numerous occasions" with other CO IIIs such as Pinson, Hewitt, and Nelson (Pl.'s Aff. ¶¶ 23-24). These assertions are not connected to any date or time between April 24 and May 1, 2003, and they only name three of the Defendants.
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Even so, the connection is too attenuated, and it is "sheer speculation" to assume that these Defendants knew about the lawsuit against Thelen. See Pratt, 65 F.3d at 808. There is also no evidence to show that any of these Defendants heard the comment that Defendant James allegedly made during the May 1 incident about Plaintiff's litigation activities, nor is there any evidence to show that these Defendants were informed after the incident but before they filed their reports that Plaintiff had sued Thelen. All but one of the Defendants have denied that they even know Thelen, and each Defendant has stated that they did not know about these lawsuit. Thus, there is no evidence to support Plaintiff's claim that these Defendants filed false reports after the incident to retaliate against him. Summary judgment will be granted in favor of these Defendants. 2. Defendant James Plaintiff's allegations do, however, create an issue of fact regarding whether James refused to allow Plaintiff to have a reclassification hearing and then shoved him into a fence and pepper sprayed him to retaliate against him for filing a lawsuit against Thelen. Plaintiff asserts that during the incident, James told Plaintiff to file a grievance against him, to sue him like he did Thelen, and called him a "lawyer-boy piece of shit" (PSOF, Ex. 1, Pl.'s Aff. ¶¶ 32-34). Defendants contend that even if James made the comment, he did not shove Plaintiff in retaliation for filing a lawsuit, he only mentioned it in the "heat of their verbal dispute" (Mot. at 14). If it is believed that James invited Plaintiff to sue him like Thelen and called him a "lawyer-boy," then there are sufficient facts from which a fact-finder might infer that James could have had retaliatory intent before the incident and it was not necessarily just a comment in the "heat" of the moment. Whether the dispute was over the availability of the classification hearing as Defendants contend or about the suit against Thelen as Plaintiff contends raises a material issue of fact. Summary judgment will be denied as to Defendant James. 3. Retaliation for filing grievances Plaintiff also alleged in his Complaint that he was retaliated against for "pursuing grievances" against the friends and colleagues of each Defendant (Compl. at 5-5B). This
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allegation, however, has not been developed. For example, there is no description of the grievances, against whom the grievances were filed, nor any evidence to show that the Defendants knew about them. Even at his deposition, Plaintiff focused upon his claim that he was retaliated against for filing a lawsuit against Thelen and could not explain what he meant by grievances (DSOF Ex. 12, Pl.'s Dep. at 33-34). Accordingly, summary judgment in favor of Defendants is warranted on this claim. C. Eleventh Amendment & Qualified Immunity The only remaining claim is against Defendant James for retaliation. For this claim, Plaintiff seeks monetary relief (Compl. at 7-7C). (Plaintiff originally sought injunctive relief, but this request arose from a due process claim that was dismissed). Defendant James correctly contends that he is immune under the Eleventh Amendment for any money damages against him in his official capacity. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Also, in his official capacity for money damages claims, James is not a "person" for purpose of § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Accordingly, Defendant James is only subject to a claim for monetary damages in his individual capacity. Defendants have generally asserted the defense of qualified immunity as to all claims but have not made any specific arguments regarding the conduct of each Defendant. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). A two-step evaluation of qualified immunity requires both a constitutional inquiry and an immunity inquiry. The "constitutional inquiry" asks whether, when taken in the light most favorable to the nonmoving party, the facts alleged show the official's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). The Court has found that if Plaintiff's version of events is believed, a reasonable jury could infer that James' conduct was retaliatory. When the first question is satisfied, the court turns to the "qualified immunity inquiry" and asks whether the officer could have reasonably but mistakenly believed that his conduct did not violate a clearly established constitutional right. Saucier, 533 U.S. at 201-05.
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Denying an inmate a reclassification hearing and then angrily engaging in a shoving match with him, when motivated by the fact that the inmate sued a fellow officer, would be conduct that violates a clearly established constitutional right. Defendants have not seriously contended otherwise (Mot. at 16). The Court will therefore deny qualified immunity. IT IS ORDERED: (1) Defendants' Motion for Summary Judgment (Doc. #88) is granted in part and denied in part. (2) Defendants Terry Stewart, Conrad Luna, Lt. Emore, CO III Fridenmaker, Nelson, Pinson, and Hewitt, and Cooper are dismissed. (3) The remaining claim is a retaliation claim against Defendant James.

DATED this 11th day of August, 2006.

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