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

1 2 3 4 5 6 7 8 9 10

Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-7323 Facsimile No.: (602) 200-7811 E-Mail: [email protected] Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell CIV 03-1819 PHX-JAT (LOA) Plaintiff, v. F. Garcia, et al. DEFENDANTS CORA MILES , JOE GLUCH, STELLA PONCE SEFERINO TELAMANTES AND TIMOTHY CASON'S MOTION FOR SUMMARY JUDGMENT Defendants.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Defendants Cora Miles, Joe Gluch, Stella Ponce, Seferino Talamantes, and Timothy Cason (hereinafter Defendants), through counsel, move for summary judgment pursuant to Federal Civil Rule 56 and Local Rule 56.1. Defendants are entitled to dismissal because Plaintiff fails to establish a genuine issue of fact concerning his claims of retaliation and failure to protect. Plaintiff was placed in segregation because he violated institutional rules and for his own safety because Defendants learned of threats made against Plaintiff. Defendants did not label Plaintiff a snitch with a wanton disregard for Plaintiff's safety. Plaintiff was at all times protected during his transport to and at the INS hearing where he claims he was threatened. Since Plaintiff was housed in protective custody because of inmate threats, there is no issue of

Case 2:03-cv-01819-JAT

Document 165

Filed 01/27/2006

Page 1 of 14

1 2 3 4 5 6 7 8 9 10 11 12

fact concerning his retaliation or failure to protect claims and Defendants are entitled to judgment as a matter of law. The Motion is supported by the attached Memorandum of Points and Authorities, Defendants' Separate Statement of Facts, the pleadings and exhibits in this case. Respectfully submitted this 27th day of January 2006. J ONES, S KELTON & H OCHULI, P.L.C.

By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES

13 Plaintiff brought suit concerning his placement into protective 14 custody. Plaintiff states he was placed into protective custody because prison 15 staff were retaliating against him for assisting other inmates with legal work. He 16 also claims that after he was in protective custody he was labeled a snitch which 17 caused him to fear for his safety. Finally, while in protective custody, Plaintiff 18 claims he was escorted by prison staff to an INS hearing where he was placed 19 inside a courtroom with general population inmates causing him to fear for his 20 safety. None of Plaintiff's claims can be sustained by the facts or law and the 21 Complaint should be dismissed. 22 Retaliation Claim 23 The Supreme Court has held that prisoners do not have a First 24 Amendment right to give legal advice to fellow prisoners and that restrictions or 25 sanctions imposed on prisoners for giving legal advice are constitutional so long 26 2 Case 2:03-cv-01819-JAT Document 165 Filed 01/27/2006 Page 2 of 14

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

as they are reasonably related to legitimate penological interests. Shaw v. Murphy, 532 U.S. 223 (2001). The court stated that some First Amendment rights are simply inconsistent with the status of a prisoner or with the legitimate penological objectives of the corrections system. Id. at 239. Generally, courts will defer to the judgment of prison officials in upholding regulations against constitutional challenges. Id. at 229. In order to impose liability for retaliation, a Plaintiff must establish that a Defendant retaliated against the Plaintiff for exercising a constitutional right and that the retaliatory conduct did not advance a legitimate penological goal. See, Rizzo v. Dawson, 778 F.2d 527, 539 (9 th Cir. 1985). Thus, because an inmate's First Amendment rights are necessarily curtailed, a successful retaliation claim requires a finding that the retaliatory action of prison authorities did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals. See, Pratt v. Rowland, 65 F.3d 802, 806 (9 th Cir. 1995). Consequently, the Plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct complained of. See, Id. The plaintiff also has the burden of proving that the alleged retaliation for the exercise of protected conduct was the substantial or motivating factor behind the defendants' conduct. See, Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Finally, the court must apply a deferential attitude toward decisions by prison officials when analyzing retaliation claims. See, Pratt, 65 F.3d at 807. In addition to the above, to impose liability under 42 U.S.C. § 1983, a Plaintiff must prove an affirmative link: illustrating that the specific conduct, of a particular Defendant, caused the Plaintiff specific injury. See, Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604 (1976); See also, Leer v. Murphy, 844 F.2d 3

Case 2:03-cv-01819-JAT

Document 165

Filed 01/27/2006

Page 3 of 14

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

628, 633 (9th Cir. 1988) (plaintiff must establish causal connection between the Defendants' actions and the harm allegedly suffered). Bare allegations,

unsupported by evidence, are not enough to survive a motion for sum mary judgment or state a 42 U.S.C. § 1983 constitutional deprivation claim. See, Moreland v. Las Vegas Metropolitan Police Department, 159 F.3d 365, 374 (9 th Cir. 1998); See also, Sherman v. Yakahi, 549 F.2d 1287, 1290 (9 th Cir. 1997). In this case, Plaintiff alleges that Defendants retaliated against him for filing lawsuits and grievances. See, Plaintiff's Second Amended Complaint. However, Plaintiff asserts nothing more than bare allegations which cannot be used to support his claim. See, Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9 th Cir. 1985) (bare allegations of retaliation will not avoid summ ary judgm ent). Plaintiff has failed to state specific facts that would establish a causal connection between Defendants conduct and Plaintiff's claimed basis for retaliation. Plaintiff testified he had no contact with Miles before he was placed in the SHU. See Defendants' Statem ent of Facts in Support of its Motion for Summary Judgment, "DSOF" at ¶ 10, 11, 20. There simply is no evidence Miles placed Plaintiff in the SHU unit based upon Plaintiff's actions of filing grievances or assisting other inmates with lawsuits. Plaintiff was ordered into segregation as a result of an investigation concerning the submission by Plaintiff of an INS form, implicating other inmates concerning detainers. It was also learned, Plaintiff had been charging fees to other inmates to perform legal services. DSOF at ¶ 8, 32. After Plaintiff was placed in SHU and during the course of the investigation comm ents were made by other inmates with regard to the personal safety of Powell. DSOF at ¶ 30. Defendant Miles conducted a cell search of Powell's cell as part of her investigation into the circumstances surrounding Plaintiff charging fees for legal 4

Case 2:03-cv-01819-JAT

Document 165

Filed 01/27/2006

Page 4 of 14

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

services. DSOF at ¶ 31- 34. During the course of the search, she discovered several Pre-Sentence Investigations of other inmates. DSOF at ¶ 29, 32. As a result of the possession of unauthorized material, as well as the receipt of funds from another inmate's family, Powell received disciplinary segregation. DSOF at ¶ 32. In addition, because there were comments made concerning the continued safety of Powell, Miles recom mended Plaintiff be placed into protective custody to maintain the security and safety of the inmates, staff and institution. DSOF at ¶ 30. Plaintiff claim s that he was placed into segregation and held in administrative protective custody for retaliation resulting from his filing of grievances and lawsuits. This claim is without basis since he admits he filed no grievances against Defendants before his placement into protective custody. DSOF at ¶ 11-14. Plaintiff's grievances were filed after he was placed into administrative segregation and none of the Defendants had anything to do with litigation in which Plaintiff was involved. Plaintiff's claims of retaliation against these Defendants are nothing but bare assertions of conduct which have no factual basis, and as such, the claims should be dismissed. Plaintiff's only evidence is his own statements that he "believes" these individuals placed him and kept him it protective custody as retaliation. Plaintiff's self serving evidence is simply not sufficient to establish the needed causal connection between the Defendants' conduct and the Plaintiff's claim of retaliation. The Defendants have supplied sufficient evidentiary material to establish the basis and reasoning for Plaintiff's placement into the segregation/protective custody unit. This placem ent was initially for disciplinary purposes, then maintained as protective custody because of a separation order. 5

Case 2:03-cv-01819-JAT

Document 165

Filed 01/27/2006

Page 5 of 14

1 2 3 4

Plaintiff was kept in the SHU to assure Plaintiff's safety and that of the institution. Plaintiff's Initial Placement in SHU Was Not Based on Retaliatory Conduct by the Defendants As discussed above, a successful retaliation claim requires a finding

5 that the retaliatory action of prison authorities did not advance legitimate goals 6 of the correctional institution or was not tailored narrowly enough to achieve 7 8 case, although Plaintiff alleges Defendants placed him in segregation because 9 he was filing complaints and lawsuits, Plaintiff has failed to establish any 10 evidence of an "absence of legitimate correctional goals for the conduct of which 11 he complains." See, Pratt, 65 F.3d at 806. 12 A quick read of Plaintiff's disciplinary charges, incident reports and 13 final determinations shows that Plaintiff remained in segregation for legitimate 14 correctional reasons: Plaintiff was a rule violator and comprom ised the safety 15 and security of the institution. See, e.g., Coleman v. Rupf, 2000 WL 41220, at 16 *1-1 (N.D. Cal. 2000). (granting summary judgment in favor of defendants where 17 plaintiff alleged that he was placed in segregation in retaliation for filing 18 grievances but defendants established that the detainee was placed in 19 segregation for insolence, insubordination and interfering in staff duties). 20 Additionally, a review of Plaintiff's disciplinary hearing documents show that the 21 disciplinary action taken was not retaliatory but was instead imposed for 22 legitimate penological interests as Plaintiff had created a security concern by 23 charging inmates money for legal work, for unauthorized phone calls, and for 24 possessing PSI's of other inmates. DSOF at ¶ 26-29. 25 /// 26 6 Case 2:03-cv-01819-JAT Document 165 Filed 01/27/2006 Page 6 of 14 such goals. See Pratt v. Rowland, 65 F.3d 802, 806 (9 th Cir. 1995). In this

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

In sum, Plaintiff cannot connect any specific conduct by Defendants to any specific injury to the Plaintiff. Therefore, Plaintiff's claim fails.

Additionally, Plaintiff cannot establish that the substantial and motivating factor for placing Plaintiff in segregation was retaliation. Plaintiff was placed in, and continued in segregation because his behavior threatened the discipline and security of the institution and for his own protection. Therefore, Plaintiff's claim fails and Defendants are entitled to summary judgment. Plaintiff's Snitch Jacket/Threat to Safety Claim Fails In order to establish a claim for failure to protect an inmate, a supported allegation that a correctional officer made statements intending to incite inmates to attack another inmate may state a claim under the Eighth Amendment. Calling an inmate a snitch in front of other inmates with a wanton disregard for the inmate safety m ay constitute a claim . Valandingham v.

Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989). The basis of Plaintiff's claim is that Defendant Miles inform ed inmate Garcia that Plaintiff had named Garcia to the INS, resulting in the INS placing a detainer upon Garcia. In addition, Plaintiff claims that he was involved in an isolated incident where he was placed in the same room with inmates from general population which created a risk to his safety. All of Plaintiff's claims arise after he was already placed into the segregation unit for his protection and for institutional security. Because Plaintiff was in protective custody at the time he claims he was labeled a snitch, he cannot show a wanton disregard for his safety. Plaintiff's INS hearing was conducted at the Eloy Detention Center. DSOF ¶ 37. He was escorted to and from the courtroom by correctional officers that remained with him the entire time. DSOF ¶¶ 35 and 40. During Plaintiff's INS hearing, there was an officer stationed inside the courtroom behind the 7

Case 2:03-cv-01819-JAT

Document 165

Filed 01/27/2006

Page 7 of 14

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

Plaintiff. DSOF ¶¶ 35, 38-43. At no time was Plaintiff in danger from attack by another inmate since a guard was stationed directly behind him in the courtroom. Plaintiff's failure to protect claim has no basis since security was continuously provided during the INS hearing. Again, Plainitff has no evidnece of a wanton disregard for his safety since officers were in the courtroom. DSOF ¶¶ 40-43. Plaintiff has no evidence any officer had inadequate training that led to a situation where he was placed in danger. Further, Plaintiff cannot present any evidence this was more than an isolated incident where incidental contact with general population inm ates occurred. Assuming arguendo, Plaintiff's statements are true, that he was a left alone in the courtroom, his claim still fails because he cannot produce evidence that he was threatened or harm ed in any m anner at that time. DSOF ¶ 37. Because he cannot establish an actual injury, his claim fails. In any event, Plaintiff was protected at all times by security personnel who were present inside the courtroom during his hearing. DSOF at ¶ 35. The failure on the part of Plaintiff to set forth facts, beyond his bare allegations, justifies sum mary judgment for Defendants. Even if Plaintiff's claims are assumed to be true his complaint fails because he has no evidence to indicate he was labeled a snitch in retaliation for filing lawsuits or grievances. Further, he has no evidence he was labeled a snitch for the purpose of causing him harm. Powell cannot show violence directed at him as a result of the "snitch" label and he has not been subjected to threats of any kind from other inmates. He was already in protective custody because of threats to his safety at the time he claims he was labeled a snitch. His allegations are that he has felt some anxiety and fear by being present with 8

Case 2:03-cv-01819-JAT

Document 165

Filed 01/27/2006

Page 8 of 14

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

other inmates on one occasion and that he had a general overall fear something might happen to him in the future. To establish a prima facie constitutional tort, Powell must prove the Defendants' actions caused injury to him. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 285-87 (1977). In this case, even

assuming the truth of the facts as alleged by Plaintiff, the most Powell can establish is that he was defamed by being labeled a snitch. Defamation does not constitute an injury under § 1983. Paul v. Davis, 424 US 693, 712-14 (1976). Further, Powell is unable to show any Defendant labeled him a snitch and then failed to protect him from harm . The facts show the opposite, Plaintiff was placed in protective custody and after that he claims he was labeled a snitch. A failure to protect claim is governed by the deliberate indifference standard in Farmer vs Brennan, 511 US 825 (1994). Deliberate indifference requires evidence that an official is actually aware of facts from which an inference could be drawn that a substantial risk of harm exists, the official must actually draw the inference but nevertheless disregard the risk to the inmates health or safety. Id. at 837. The requirement is that the official have actual knowledge and fail to take action to prevent harm to the inmate. In this

instance, Defendants had actual knowledge of potential harm against Powell. In response to that potential harm, Defendants took action by placing and keeping Plaintiff in protective custody for his own safety. Inmates have a right to be reasonably protected from threats of violence and there need not be an actual assault before obtaining relief. Once the threat was made, Defendants took action to provide for the safety needs of Powell by placing him in protective custody. As such, he cannot show Defendants acted with deliberate 9

Case 2:03-cv-01819-JAT

Document 165

Filed 01/27/2006

Page 9 of 14

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

indifference to his safety needs or establish an Eighth Amendment claim for a failure to protect him. There is no dispute Powell was placed into protective custody and maintained in protective custody until his transfer from the institution. Plaintiff also has no evidence he was labeled a snitch in retaliation for the exercise of constitutional rights. As previously discussed, Powell has no facts which can establish a causal connection between the actions taken by the Defendants and the injury he alleges he suffered. Plaintiff also fails to establish any legitimate threat m ade against him at any time as a result of the snitch label. Plaintiff's bare allegations simply will not suffice to establish a claim for a constitutional violation. Plaintiff's Monell Liability Claim Against Defendants Fails It is unclear whether Plaintiff is asserting a Monell claim in his complaint arising from issues concerning inadequate training, and deliberate indifference. Plainitff identifies Joe Gluch, Regional Director of Correctons Corporation of Am eia as a Defendant. Powell claims Gluch is responsible for addressing problems, grievances, and requests. Powell does not set forth facrs that Gluch was involved in retaliation or a failure to protect. Further, there is no evidnce or allegation Gluch was imvolved in establishing a policy that led to unconstitutional conduc. Powell completely failed to identify a CCA policy which proximately caused the claimed constitutional violations. As such, a brief argument is asserted if Plaintiff's claims are construed to include such a claim. Although the issue of Monell liability is addressed in this Motion, it is important to note that this issue need not be reached if Plaintiff is unable to initially establish a violation of Plaintiff's constitutional rights. See, Siegert v. Gilley, 111 S.Ct. 1789 (1991); see also, City of Los Angeles v. Heller, 475 U.S. 796, 106 10

Case 2:03-cv-01819-JAT

Document 165

Filed 01/27/2006

Page 10 of 14

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

S.CT. 1571 (1986). Because Plaintiff cannot establish constitutional violations by CCA correctional personnel, it is unnecessary to reach the issue of Monell liability as against Defendants and as a result, Defendants are entitled to sum mary judgment. In the alternative, even if this Court finds an underlying Eighth Amendment constitutional violation, Plaintiff is nevertheless unable to make the proper showing under Monell to hold Defendants liable in this case. The Court is already fam iliar with the principle that respondeat superior liability does not exist under 42 U.S.C. § 1983. Instead, government entities may be sued under 42 U.S.C. § 1983 only where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or "visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decision making channels." Monell v.

Department of Social Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2036 (1978). Furthermore, a plaintiff must demonstrate a close causal connection between the policy and injuries suffered. See, City of Oklahoma v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 2436 (1985). Thus, a widespread, well settled custom or policy must be the moving force behind the constitutional deprivation in order for liability to be found. See, Monell, 436 U.S. at 691. In this case, Plaintiff alleges that Defendants' policies and practices in training personnel resulted in deliberate indifference to Plaintiff's constitutional rights. Plaintiff asserts Defendants failed to train employees to protect inmates from harm at the hands of other inmates. Powell has no training records, expert testimony, training materails, or other evidence to establish a lack of traning on the part of Defendants. Again, Powell is simply making bare allegations of a 11

Case 2:03-cv-01819-JAT

Document 165

Filed 01/27/2006

Page 11 of 14

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

lack of traning on the part of Defendants. Powell also fails to establish that it is a policy of CCA to inadequately train its staff which proxmiately caused his injury. No matter what evidence Powell, may offer concerning his numerous allegations of constitutional violations, he cannot establish the existence of a policy for which Defendants are liable under Monell. It is well settled that supervisors cannot be held liable for any alleged unconstitutional conduct by the individual Defendants on a respondeat superior theory. Finally, even if Plaintiff could identify a potentially unconstitutional policy or practice, there is no evidence that such is the moving force behind Powell's alleged injuries. Since there is no evidence that Defendants condoned, ratified or encouraged employees to violate the constitutional rights of Powell, Defendants are entitled to summary judgment. Plaintiff Cannot Recover Punitive Damages To recover punitive damages in a Section 1983 claim, the Plaintiff must show that: (1) Defendants' conduct was driven by evil motive or intent or (2) the conduct was reckless or with callous indifference to the Plaintiff's constitutional rights. See, Morgan v. Woessner, 997 F.2d 1244, 1255 (9 th Cir. 1993) (citing Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640 (1983)). In this case, Plaintiff cannot make the proper showing to recover punitive damages. As set forth throughout this Motion, at no time did Defendants act with evil motive or intent, recklessly or with callous indifference to Plaintiff's Constitutional rights. There is no depsoition testimony, discovery responses, or other evidence of an evil mind of any Defendatn. Defendants' actions were taken to maintain institutional security and safety including the safety of Powell. Therefore, Defendants are entitled to summary judgment on the issue of punitive damages. 12

Case 2:03-cv-01819-JAT

Document 165

Filed 01/27/2006

Page 12 of 14

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 /// ///

Plaintiff Cannot Recover for Emotional Injuries Plaintiff alleges that he suffered emotional distress as a result of Defendants' conduct. Plaintiff cannot seek redress for these alleged injuries as against defendants. The Prison Litigation Reform Act, 42 U.S.C. § 1997 e(e), provides that incarcerated prisoners cannot make a claim for mental or emotional injuries without a prior showing of physical injury. Moreover, the Ninth Circuit has recently clarified that the required showing of physical injury under the PLRA must be more than de minimis. See, Oliver v. Kelly, 289 F.3d 623, 627 (9 th Cir. 2002). In this case, Plaintiff is unable to prove that he suffered any physical injury as a result of Defendants' conduct. Powell asserts he became nausious at one point after the courtroom incident. Clearly, this physical

condition is de minimis. Further, Powell fails to supply any medical records to establish injury. Therefore, Defendants are entitled to summary judgment on Plaintiff's emotional distress claims. Conclusion For the foregoing reasons, Defendants request the court grant Defendants' Motion for Summary Judgm ent. Respectfully submitted this 27 th day of January 2006. J ONES, S KELTON & H OCHULI, P.L.C.

By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants

13 Case 2:03-cv-01819-JAT Document 165 Filed 01/27/2006 Page 13 of 14

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

ORIGINAL of the foregoing electronically filed this 27 th day of January 2006, with: Richard W eare, Clerk U NITED S TATES D ISTRICT C OURT COPY of the foregoing mailed this 27 th day January 2006, to: The Honorable James A. Teilborg U NITED S TATES D ISTRICT C OURT Sandra Day O'Connor U.S. Courthouse, Suite 523 401 W est Washington, SPC 51 Phoenix, Arizona 85003-2154 COPY of the foregoing faxed this 27 th day January 2006, to: Office of the Pro Se Staff Attorney 602-322-7289 COPY of the foregoing mailed this 27th day of January 2006, to: Carlos Powell, #10090-023 D/U 325 FCI-1 V ICTORVILLE P. O. Box 5300 Adelanto, California 92301-5300 Plaintiff Pro Se

s/Dianne Clark

1575585_1

14 Document 165 Filed 01/27/2006 Page 14 of 14

Case 2:03-cv-01819-JAT