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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Carlos Arthur Powell, Plaintiff, vs. C. Miles, et al., Defendants.

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No. CV 03-1819-PHX-JAT ORDER

Plaintiff, an inmate in the custody of the Federal Correctional Institution (FCI) in Adelanto, California, filed this civil rights action1 against the following Defendants from the Eloy Detention Center in Eloy, Arizona: (1) Cora Miles, Corrections Corporation of America (CCA) Unit Manager; (2) Joe Gluch, CCA Regional Director; (3) Stella Ponce, Chief Security Officer; (4) Seferino Talamantes, Correctional Officer/Court Bailiff; (5) Timothy Cason, Correctional Officer/Court Bailiff; and (6) Earl Scalet, INS Investigator (Second Am. Compl. (PSAC), Doc. #145). Before the Court are a summary judgment motion filed by Defendants Miles, Gluch, Ponce, Talamantes, and Cason, and a Motion to Dismiss Scalet as a defendant (Doc. ##165, 187). Also pending are Defendants' motions to strike both Plaintiff's sur-response to the summary judgment reply, and Plaintiff's sur-response to Defendants' reply supporting the Motion to Dismiss (Doc. ##181, 191). The Court will deny

Plaintiff's claim is brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
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both motions to strike, grant summary judgment for Gluch, Ponce, Talamantes, and Cason, deny summary judgment as to Miles, and deny Scalet's motion for dismissal. I. Background Plaintiff's Second Amended Complaint sets forth three claims: (1) retaliation for providing legal assistance to other inmates; (2) threat to safety during an INS hearing; and (3) violations of due process in disciplinary proceedings (PSAC, Doc. #145). These claims arose in 2003 during Plaintiff's confinement at the Eloy Detention Facility in Eloy, Arizona (Id. at 1). While housed in Eloy, Plaintiff often assisted other inmates with grievances and legal work (Pl. Dep. 27, May 21, 2004, Ex. 1, Doc. #165). Plaintiff asserts that on August 5, 2003 he assisted another inmate (Salvador) in drafting a grievance on an INS form for submission to Scalet, an INS Investigator (PSAC at 4a; Pl.'s Aff. ¶ 9, Ex. 1, Doc. #170). This grievance raised an equal protection claim and questioned why the detainer for another inmate (Garcia-Ibarra) had been lifted and why that inmate had been given an outside gate pass (Pl.'s Statement of Facts (PSOF) ¶ 6, Doc. #170). Plaintiff also filed his own grievance on August 8, 2003 complaining about the lack of shower curtains in his dorm (Ex. 1, Doc. #170). On August 14, 2003, Plaintiff was placed in the Special Housing Unit (SHU), which is the segregated unit within the detention center (PSAC at 4b). He states that he was not told why he was being locked up. The following day, Warden Garcia and Miles interviewed Plaintiff, and Plaintiff alleges that they showed him Salvador's August 5 grievance addressed to INS and asked him if he had seen it2 (Id.; Defs.' Statement of Facts (DSOF) ¶ 7, Doc. #166 (in part)). Plaintiff states that, after responding affirmatively, the two officers accused him of charging for legal assistance and said they would investigate the matter (DSOF ¶ 7; Pl.'s Aff. ¶ 6, Doc. #170). Plaintiff purports that he has never charged inmates for legal assistance, but two other inmates, Garcia-Ibarra - the subject of the INS form - and Navarro, were selling his legal work (DSOF ¶ 2; Pl.'s Aff. ¶ 3(f)). Plaintiff alleges that Defendants

The Court granted Plaintiff's motion to dismiss Warden Garcia as a defendant in May 2004 (Doc. #27).
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retaliated against him for providing legal assistance to Salvador by (1) placing him in SHU and (2) leaking information to Garcia-Ibarra that Plaintiff had "snitched" on him (PSAC at 4b). In Count II Plaintiff alleges that his safety was threatened during an INS court proceeding when he was put in a courtroom with seven general population inmates, including Garcia-Ibarra (Id. at 5). He claims that Defendants' actions violate regulations prohibiting any general population inmates from coming in contact with SHU inmates (Id.). And in his last claim, Plaintiff asserts that he filed grievances putting Gluch on notice that incident reports filed by Miles included false information, and that Defendants' actions concerning his segregation were retaliatory (Id. at 6h). Plaintiff alleges that, despite knowing this information, Gluch violated Plaintiff's procedural due process rights by ignoring the retaliation and threats to Plaintiff's safety. Plaintiff further alleges that Gluch's failure to train contributed to Defendants' alleged constitutional violations (Id.). Defendants moved for summary judgment arguing that Plaintiff was placed in SHU for his own safety, and they claim that Plaintiff turned himself in for protective custody (DSOF ¶¶ 9, 12, 17, 25, Doc. #166). Further, Defendants claim that Plaintiff was put into SHU for various rule violations (Id. ¶¶ 27, 28, 29). Defendants also assert that Miles never made statements about Plaintiff being a snitch (Id. ¶ 33). Regarding Count II, Defendants contend that Plaintiff was with correctional officers during his escort to the INS hearing and throughout the hearing itself; thus, Plaintiff was never in danger from attacks and there was no threat to his safety (Defs.' Mot. for Summ. J. (DMSJ) at 7-8, Doc. #165; DSOF ¶ 35). Finally, Defendants contend that in Count III Plaintiff failed to connect Gluch to the alleged misconduct, and Plaintiff failed to allege any liability under Monell because there is no allegation of a policy that caused the claimed violations (DMSJ at 10). In his response to the motion Plaintiff asserts that Defendants disclosed his name to inmates in retaliation for helping Salvador draft the August 5, 2003 grievance (Pl.'s Resp. at 2, Doc. #170). According to evidence submitted by Plaintiff, the grievance led to the refiling of a detainer on Garcia-Ibarra and the loss of his gate pass (Salvador Aff. ¶ 6,
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Prymych Aff. ¶ 9, Doc. #170). Plaintiff alleges that Miles told inmates in SHU that Plaintiff had snitched against her and Garcia-Ibarra; thus, putting Plaintiff's safety in jeopardy and thereby necessitating continued segregation in SHU (Pl.'s Aff. ¶ 11). In their reply, Defendants argue that Plaintiff failed to submit any evidence to support his allegations (Reply at 2, Doc. #176). Specifically, Defendants contend that Plaintiff did not provide any specific facts demonstrating a retaliatory scheme (Id. at 5). Plaintiff then filed a sur-response - which Defendants subsequently moved to strike - arguing that Defendants' explanation for Plaintiff's segregation has changed over time, giving rise to a question of material fact (Rebuttal at 2, Doc. #180). II. Standard for Summary 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 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). Under summary judgment practice, the moving party bears the 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 issue of material fact. Celotex Corp., 477 U.S. at 323. If the moving party meets its initial responsibility the burden then shifts to the opposing party who must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the 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. 1995). The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Finally, when considering a summary judgment motion,

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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. Count I - Retaliation To meet their burden on summary judgment, Defendants must come forward with the lack of a triable issue of fact; namely, evidence that Plaintiff was not placed in SHU on August 14, 2003 in retaliation, and evidence that Plaintiff's name was not leaked in retaliation for a grievance he helped draft. 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); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims require an inmate must show (1) that the prison official acted in retaliation for the exercise of a constitutionally-protected right, and (2) that the action "advanced no legitimate penological interest"). A. First Amendment Prisoners have a constitutionally-protected right to 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). A prisoner may not be penalized for the contents of a grievance, Bradley, 64 F.3d at 1279, nor may a prisoner be labeled a "snitch" in retaliation for filing grievances, Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.1989). Because harm that 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; Valandingham, 866 F.2d at 1138. And a chilling effect on a prisoner's constitutional right to file grievances is sufficient to raise a retaliation claim against prison officials. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003).
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An inmate retains some First Amendment rights to assist other inmates with litigation. See Pell v. Procunier, 417 U.S. 817, 822 (1974); Johnson v. Avery, 393 U.S. 483, 490 (1969); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Lewis v. Casey, 518 U.S. 343, 351 (1996). There may be limitations on these activities, however, any restrictions must be reasonably related to legitimate penological interests. See Shaw v. Murphy, 532 U.S. 223, 231-32 (2001). Plaintiff cites to 28 C.F.R. § 542.16(a) as support for his federally protected right to assist other inmates with grievances without repercussion; "[a]n inmate may obtain assistance from anther inmate or from institution staff in preparing a Request or an Appeal." Defendants do not expressly challenge whether Plaintiff was engaged in protected conduct; therefore, it is undisputed that the first element of a retaliation claim is satisfied (See DMSJ 2-5, Doc. #165). B. Defendants' Motion Defendants seek summary judgment on the basis that (1) they did not retaliate against Plaintiff, (2) Plaintiff was placed in SHU for violating institutional rules and for his own safety, and (3) they did not label Plaintiff a snitch (DMSJ at 7, DSOF ¶ 12). Defendants contend that they placed Plaintiff in segregation because he violated institutional rules. Defendants proffer three incident reports documenting the unauthorized receipt of money, an unauthorized phone call, and the unauthorized possession of other inmates' pre-sentence reports (Exs. 3-5, Doc. #165). In her affidavit, Miles states that Plaintiff was initially placed in SHU during an investigation of whether Plaintiff was charging for legal work (Miles Aff. ¶ 6, Doc. #165). Segregating inmates who violate institutional rules or pose a threat to the security of the prison serves a legitimate correctional goal. Miles also attests that she never indicated that Plaintiff was a snitch, nor did she call him a snitch in front of others (Id. ¶¶ 9, 24). Miles asserts that when she interviewed GarciaIbarra, he threatened Plaintiff in her presence. Further, Miles states that during an

investigation concerning the INS form implicating Garcia-Ibarra as a felon who should be deported, inmates learned that Plaintiff had submitted the form (Id. ¶¶ 12, 23). Miles affirms
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that, due to the threat, she placed Plaintiff in SHU to prevent him from being harmed (Id. ¶ 15). It is undisputed that an inmate who has been labeled a snitch is subject to serious harm. Valandingham, 866 F.2d at 1138-39. Moreover, "officials have a duty . . . to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833 (1994). As such, if Defendants knew that Plaintiff had been threatened or labeled a snitch, placing him in segregation served the legitimate penological purpose of maintaining the security and safety of inmates. Defendants have met their initial burden of presenting the basis of their motion and submitted evidence they believe shows the absence of a genuine issue of material fact. C. Plaintiff's Response The burden shifts to Plaintiff to offer evidence from which an inference can be drawn that Defendants retaliated against him for his part in drafting the grievance either by placing him in SHU, or by labeling him a snitch. Plaintiff also bears the burden of demonstrating that Defendants' conduct served no legitimate correctional goal. Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). Plaintiff has sufficiently made this showing with respect only to Miles. 1. Plaintiff's Assistance with the INS Grievance Plaintiff proffered evidence demonstrating that Miles knew he drafted the grievance concerning Garcia-Ibarra's detainer and gate pass. In an affidavit, inmate Salvador attests that on August 14, 2003 Miles questioned him and showed him the INS form that Plaintiff helped him draft (Salvador Aff. ¶¶ 3-4, Doc. #170). Salvador asserts that Miles told him that she knew Salvador did not draft the document and she asked him to substantiate that Plaintiff had actually drafted it in order to get Garcia-Ibarra put on detainer. There is no evidence that Miles was unaware that Plaintiff had drafted the grievance, in fact, she attests that GarciaIbarra threatened Plaintiff "because Plaintiff caused a detainer to be placed on Garcia-Ibarra by the INS" (Miles' Aff. ¶ 12, Doc. #165). She goes on to state that during the course of her investigation of the INS forms, inmates learned that Plaintiff had drafted the grievance (Id.
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at 23). Plaintiff has demonstrated that Miles had a belief that Plaintiff assisted in the drafting of the INS form. 2. Rule Violations Plaintiff submitted evidence that he did not violate rules prior to his placement in SHU; thus, raising a question as to the timing of his segregation shortly after the submission of the INS form concerning Garcia-Ibarra. "[T]iming can properly be considered as circumstantial evidence of retaliatory intent." Bruce, 351 F.3d at 1288 (quoting Pratt, 65 F.3d at 808). Plaintiff's evidence demonstrates that prior to August 14, 2003, he did not receive any incident reports for rule violations3 (Garcia Resp. to Interrog. #2, Ex. B, Pl.'s Rebuttal, Doc. #180). Plaintiff notes that the incident reports submitted by Defendants are all dated after his placement in SHU (Exs. 4-6, DMSJ, Doc. #165). There is no evidence indicating that Plaintiff was investigated for rule violations before he was segregated. Thus, there is no evidence that Defendants formed a belief that Plaintiff had violated prison rules before they placed him in the SHU. 3. Legitimate Penological Goals for SHU Placement As stated in the foregoing, prisons have a legitimate penological interest in segregating inmates for disciplinary purposes, and to protect the safety of inmates who are threatened or labeled a snitch. Prisons may not, however, use segregation to punish an inmate for exercising his right to assist others with grievances. See Bruce, 351 F.3d at 1289. The Ninth Circuit has held that, "prison officials may not defeat a retaliation claim on summary 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 . . ." Id. Plaintiff contends that Defendants' inconsistent statements concerning the reason for his initial placement in SHU create a genuine disputed issue of material fact.
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Plaintiff's evidence is attached to a sur-response, which Defendants move to strike on various grounds (Doc. #181). But the Court finds that the sur-response is not redundant or immaterial as Defendants allege, and the affidavits to which Defendants object are sworn and notarized. The Court also recognizes Plaintiff's pro se status, and will therefore deny Defendants' motion to strike. See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005).
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Miles states in her affidavit that Plaintiff was initially placed in SHU during the investigation of whether Plaintiff charged for legal work (Miles' Aff. ¶ 6, Doc. #165). But when asked in interrogatories whether anyone had alleged that Plaintiff charged for legal work, Miles responded that at no time did "anyone specifically bring Plaintiff's name to her attention regarding the above-referenced allegations" (Miles' Resp. to Interrog. #6, Doc. #170). Miles declared in her affidavit that she had Plaintiff segregated to prevent him from harm after she learned of threats to his safety; specifically, Garcia-Ibarra threatened Plaintiff in her presence and he advised her that something may happen to Plaintiff (Miles' Aff. ¶¶ 15, 12, 23). But in her response to admissions, Miles states that she did not make the decision regarding Plaintiff's segregation, and that Plaintiff's placement in SHU was initiated through Warden Garcia as a result of the investigation into the allegations contained in the INS grievance (Miles' Resp. to Admis. ## 1-2, Doc. #170). And when directly asked whether the August 14, 2003 lock-up of Plaintiff was due to information from Garcia-Ibarra, Miles responded that her actions on August 14 were not a result of any information obtained from Garcia-Ibarra (Miles' Resp. to Interrog. #14). Plaintiff argues that he could not have been put in SHU based on a threat to his safety because the threat came during the interview with Garcia-Ibarra, which occurred after Plaintiff was put in segregation (Mem. at 3, PSAC; Pl.'s Resp. at 4). Defendants appear to support Plaintiff's claim in their own motion by explaining that, "[a]fter Plaintiff was placed in SHU and during the course of the investigation comments were made by other inmates with regard to the personal safety of Powell" (DMSJ at 4). This contention contradicts some of Miles' own statements indicating that the threat to Plaintiff's safety came before - and was the reason for - Plaintiff's segregation. However, it supports other, conflicting evidence suggesting that Plaintiff was initially segregated due to either an investigation that he charged for legal work, or an investigation into the INS grievance. On the record, it is unclear whether the threat from Garcia-Ibarra preceded or followed Plaintiff's placement in SHU. On a summary judgment motion, the moving party's evidentiary burden is merely to provide a reference to those materials on file that support their belief that there exists no
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genuine issues of material fact. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990). While Defendants may have initially presented a basis for their motion, a broader examination of the record reveals inconsistencies which undermine Defendants' claim that there are no issues of material fact. If anything, Defendants' contradictory explanations for why Plaintiff was placed in SHU on August 14, 2003, only bolster Plaintiff's assertion that it was for retaliation. The Court therefore finds that there is a genuine issue of material fact concerning whether Miles segregated Plaintiff for retaliatory purposes. 4. Snitch Label Four inmates signed affidavits stating that Miles told them directly that Plaintiff was a snitch (Salvador Aff. ¶ 6; Chavez Aff. at 1; Prymych Aff. ¶ 9; Camacho-Garcia Aff. ¶ 2, Doc. #170). Three also aver that they observed Miles tell other inmates that Plaintiff was a snitch (Salvador ¶ 8; Chavez Aff.; Prymych Aff. ¶7). Plaintiff filed his own affidavit stating that Miles called him a snitch, and that he saw her tell other inmates in SHU that "he was snitch against her and Ibarra" (Pl. Aff. ¶¶ 6, 11, Doc. #170). Inmates further attest that Miles asked them, or they observed Miles solicit other inmates, for statements that Plaintiff sought to charge them for legal assistance, and they stated that she asked for legal documents from various inmates (Sotelo Aff. ¶¶2-3; Prymych Aff. ¶7). Finally, Plaintiff states that he was informed by Miles that he was put in SHU because he filed a grievance to INS (Pl.'s Aff. ¶ 7). Defendants argue that, even if Plaintiff's allegations that Miles labeled him a snitch were true, since he was in SHU there was no threat to his safety and the only claim Plaintiff may have is defamation (DMSJ at 9, Doc. #165). But as previously noted, labeling an inmate a snitch has the potential for serious harm and may violate constitutional guarantees. As such, there is no legitimate penological reason for identifying a prisoner as a snitch, even if he is already in segregation. As Plaintiff expressed in his deposition, a snitch label can follow an inmate to other institutions, so even if Plaintiff is transferred his safety may remain in jeopardy (Pl.'s Dep. 67-68, Ex. 1, Doc. #165). On summary judgment, the Court does not determine the truth of the matters asserted but only determines whether there is a genuine
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issue of material fact that must be resolved by trial. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997). Plaintiff has provided more than a "scintilla of evidence" that Miles told other inmates that Plaintiff was a snitch. See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact" precluding summary judgment). The Court finds that there is sufficient causal connection between Miles' conduct and Plaintiff's claim of retaliation. A reasonable trier of fact could infer, if there were no rule violations or previous threats to Plaintiff's safety that justified SHU placement on August 14, 2003, that Miles either segregated Plaintiff for no legitimate penological reason, and/or that she intentionally labeled Plaintiff a snitch. Accordingly, the Court finds that a genuine issue of material fact exists as to whether Miles retaliated against Plaintiff, precluding summary judgment as to her. D. Defendant Ponce While Plaintiff has met his burden to set forth specific facts as to Miles' affirmative role in the alleged retaliation, he has not demonstrated that Ponce was in any way linked to the alleged violation. State officials are subject to suit under § 1983 only if "they play an affirmative part in the alleged deprivation of constitutional rights." King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987). To state a § 1983 claim, a plaintiff must allege that he suffered specific injury as a result of the specific conduct of a defendant, and show an affirmative link between the injury and that conduct. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Plaintiff argues that Ponce was the official who initially put him in SHU and informed him that the placement was because "probably you have filed something they didn't appreciate and caused problems" (Pl.'s Resp. at 11, Doc. #170). Plaintiff claims that since Ponce knew that the lock up was for grievances, Ponce is liable for the alleged retaliation. No other evidence is submitted concerning this Defendant. The alleged conduct by Ponce physically placing Plaintiff in segregation - is part of Ponce's regular duties as a prison official. Consequently, this bare allegation that Ponce was part of a retaliatory scheme
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because she allegedly knew that the placement was in response to a grievance, is insufficient to connect her to the alleged constitutional violation. There is no indication that Ponce was the person who made the decision to place Plaintiff in SHU, so her conduct could not be considered retaliatory as she was following orders from another prison official. Summary judgment will therefore be granted for Ponce on Count I. IV. Count II - Threat to Safety Prison officials must take reasonable steps to ensure the safety of inmates. See Farmer, 511 U.S. at 833. A failure to protect claim lies when officials act with "deliberate indifference" to the threat of serious harm or injury by another prisoner. See Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982). To show deliberate indifference, a plaintiff must show that prison officials knew of and disregarded an excessive risk to inmate safety. Farmer, 511 U.S. at 837. Although this standard does not require that a guard know with "moral certainty" that an inmate is in danger, the guard must have more that a mere suspicion that violence will occur. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1981). To prove knowledge of the risk, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge. See Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). Defendants move for summary judgment on Count II on the basis that because there was continuous security provided during the INS hearing, there is no evidence of a wanton disregard for Plaintiff's safety (Doc. #165). They further argue that Plaintiff's failure to establish an actual injury entitles Defendants to summary judgment. In support, Defendants submit the affidavits of Talamantes, the officer who escorted Plaintiff to the courtroom, and Cason, the officer who stood in the courtroom with Plaintiff during the entire proceeding (Exs.6 & 7, Doc. #165). According to their statements, there was no contact with general population inmates, an officer was within five feet of Plaintiff at all times, and there were four officers stationed in the courtroom at all times (Talamantes Aff. ¶¶ 3, 7, 11, 14; Cason Aff. ¶¶ 5, 8, 10-11, Doc. #165). In his response, Plaintiff rejects the two officers' claims that they were in the
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immediate area at all times, and argues that since he was cuffed and shackled he had no way to protect himself against a substantial risk of serious harm (Resp. at 11-12, #170). He also identifies inaccuracies in the two affidavits regarding the number of prisoners who were actually in the courtroom for the hearing (Id. at 12). The Court finds that Plaintiff has not demonstrated that there exists a genuine issue of material fact as to whether Talamantes and Cason acted with deliberate indifference to a serious threat of harm to Plaintiff. Plaintiff does not identify the alleged rule which prohibits general population inmates to be near SHU inmates, nor has he established that Defendants had reason to suspect that he was in danger in the courtroom. There is also no evidence that Plaintiff alerted either Defendant to a potential risk of harm. Depending on the

circumstances, it may have been unwise on the part of Defendants to allow Garcia-Ibarra to be in the same courtroom with the inmate he allegedly threatened, but this carelessness does not rise to deliberate indifference. Summary judgement will be granted for Talamantes and Cason, and on Count II. V. Count III - Disciplinary Proceedings There is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of a person who allegedly violated a plaintiff's constitutional rights does not impose liability. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "A supervisor is only liable for constitutional violations of his subordinates 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. Moreover, an inmate has no free-standing constitutional right to a grievance process. In Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), the Ninth Circuit held that a prisoner does not have a protected liberty interest in prison grievance procedures. Without a liberty interest, Plaintiff has no procedural due process rights at stake. Further, the mere denial of a grievance does not give rise to the inference of active unconstitutional behavior. Where a defendant's only involvement in the allegedly unconstitutional conduct is the denial of administrative grievances, the failure to intervene on a prisoner's behalf to remedy alleged unconstitutional
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behavior does not amount to active unconstitutional behavior for purposes of § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). There is no evidence to show that Gluch participated in or directed the alleged constitutional violations. Plaintiff's allegations that Gluch failed to properly investigate his grievances, and that he "deliberately concurr[ed]" with Defendants in the grievance process are insufficient to demonstrate that a factual dispute exists as to Gluch's liability for a constitutional violation. The Court will grant summary judgment on Count III and for Gluch. VI. Damages Defendants argue that Plaintiff cannot make the proper showing to recover punitive damages (DMSJ at 12, Doc. #165). They also claim that Plaintiff cannot seek redress for emotional distress because he has not shown any physical injury (Id. at 13). A jury may award punitive damages under § 1983 either when a defendant's conduct is driven by evil motive or intent, or when it involved a reckless or callous indifference to the constitutional rights of others. Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005) (quotation omitted). The Ninth Circuit has held that a § 1983 victim is "entitled to recover

compensatory damages for all injuries suffered as a consequence of those deprivations" according to general tort principles applicable to the type of deprivation proved. Borunda v. Richmond, 885 F.2d 1384, 1389 (9th Cir. 1989). This may include "compensation for economic harm, pain and suffering, and mental and emotional distress that results from the violations." Id. The Court finds that on the question of retaliation against Plaintiff, there are sufficient facts from which a reasonable jury could infer that the punitive and compensatory damages standard was met. Defendants' request for summary judgment on this point will be denied. VII. Motion to Dismiss Scalet In his Second Amended Complaint Plaintiff alleges that Scalet participated in retaliation against Plaintiff after Scalet received the INS form that Plaintiff assisted another inmate in drafting (PSAC at 4a, Doc. #145). Scalet did not answer this claim. Instead, he filed a Motion to Dismiss on the basis that Plaintiff failed to effect timely service as required
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under the rules of procedure (Doc. #187).4 Incarcerated pro se plaintiffs proceeding in forma pauperis are entitled to rely on the U.S. Marshal for service of summons and complaint and cannot be penalized by dismissal of the action for failure to effect service where the Marshal has failed to perform his duties. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). As long as the prisoner provides the information necessary to identify the defendant, the Marshal's failure to effect service is automatically good cause within the meaning of Fed. R. Civ. P. 4(j). Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). Plaintiff submits that after filing the original Complaint he provided to the Marshal the address of the Eloy Detention Center at 1705 East Hanna Road in Eloy, Arizona, as the location to serve Scalet (Pl.'s Aff. ¶ 7, Attach. 1, Doc. #188; Doc. #16). The record shows that the Marshal executed service via certified mail to Jacque Hahn, District Counsel for the Department of Homeland Security, who signed for receipt of the summons for the original Complaint, and again for the First Amended Complaint (Doc. ##16, 51). But Scalet had not filed a waiver of service, and it is unclear whether Hahn was authorized to accept service for Scalet. Plaintiff's Second Amended Complaint was filed on November 28, 2005 (Doc. #145). The summons for Scalet was returned unexecuted on January 27, 2006, and it was noted by the Marshal that Scalet no longer worked at the address provided, which was the detention center on East Hanna Road in Eloy, Arizona (Doc. #167). However, according to Scalet's declaration, he was assigned to the Eloy Detention Center from March 2001 to February 2006 (Scalet Decl. at 1, Attach 1, Doc. #187). In an Order dated March 16, 2006, the Court acknowledged that Scalet had not yet been personally served in this action, and

Scalet also filed a Motion to Strike Plaintiff's sur-response to this motion, referred to as a "traverse" to Defendant's reply (Doc. ##191, 190). The Court will grant the Motion to Strike to the extent that it will not consider Plaintiff's sur-response, but will otherwise deny the motion.
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ordered Scalet's employer to provide his address (Doc. #174). Upon receipt of this information, the Court ordered service on Scalet within ten days, which was completed (Doc. #179). Under Federal Rule of Civil Procedure 4(m), if a summons and complaint are not served upon a defendant within 120 days after filing, the court shall either dismiss the action or, if the plaintiff shows good cause for the failure, direct that service be effected within a specified time. Pursuant to this rule, on April 3, 2006 the Court ordered service on Scalet (Doc. #179). The Court must provide reasonable time for service of the United States after the plaintiff has served the individual government employee in an individual capacity. Fed. R. Civ. P. 4(i)(3)(B). The summons and Second Amended Complaint were served upon the United States Attorney General and the local United States Attorney for the District of Arizona the following month as directed by the Court (Doc. ##185, 186, 184). Scalet contends that timely service of an amended complaint is ineffective for a defendant who was named in the original complaint but was not timely served the original complaint. This argument is unpersuasive. The out-of-circuit case law upon which Scalet relies refers to various factors in determining whether service should be considered effective. See Patterson v. Brady, 131 F.R.D. 679, 682-84 (S.D.Ind. 1990), aff'd 89 F.3d 838 (7th Cir. 1996); Del Raine v. Carlson, 826 F.2d 698, 704-05 (7th Cir. 1987). When these factors are applied to the present action, the case law supports a finding of effective service. First, Scalet has had knowledge of this action since December 2003 (Scalet Decl. at 2, Doc. #187). Second, Plaintiff acted diligently in that he initially provided the proper information to the Marshal, and when Scalet's whereabouts were finally ascertained by Court Order, Plaintiff timely complied with the orders to serve Scalet and the United States. Further, Plaintiff has prosecuted this action pro se from the beginning. See Borzeka v. Heckler, 739 F.2d 444, 446-48 (9th Cir. 1984). And finally, the lack of effective service of the original complaint cannot be attributed to Plaintiff because he did provide the Marshal with the correct location of Scalet. See Whale v. U.S., 792 F.2d 951, 953 (9th Cir. 1986). In sum, Plaintiff has shown good cause why the action against Defendant Scalet
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should not be dismissed. The Court finds that Scalet was personally served pursuant to the Court's Order dated April 3, 2006, and the United States was served in a reasonable time therefrom. The Court will deny the Motion to Dismiss Scalet as a defendant in this action. VIII. Conclusion The Court finds that a genuine issue of material fact does not exist as to the liability of Defendant Ponce, and she will be granted summary judgment. However, because the Court finds that a material issue of fact exists regarding Plaintiff's retaliation claim against Miles, the Court will deny summary judgment for Count I against Miles, and as to damages on this claim. The Court further finds that a genuine issue of material facts does not exist concerning Count II or Count III of the Second Amended Complaint and summary judgment for those Counts, and for Defendants Talamantes, Cason, and Gluch will be granted. Finally, the Court finds that there was effective service of Defendant Scalet and will deny the motion to dismiss him as a defendant.

IT IS ORDERED: 1) Defendants' Motion for Summary Judgment (Doc. #165) is granted in part and denied in part. The Motion is granted for Defendants Ponce, Talamantes, Cason, and Gluch, and as to the threat to safety claim (Count II) and the disciplinary proceedings claim (Count III). The Motion is otherwise denied. 2) Defendants' Motion to Strike Plaintiff's Rebuttal to Defendants' Reply (Doc. #181) is denied. 3) Defendant Scalet's Motion to Dismiss (Doc. # 187) is denied. // // // // // //
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4) Defendant Scalet's Motion to Strike (Doc. #191) is denied. 5) The remaining claim is Count I against Defendants Miles and Scalet. DATED this 30th day of August, 2006.

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