Fannin v. Smith et al, No. 4:2014cv05091 - Document 24 (E.D. Wash. 2015)
Court Description: ORDER GRANTING DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 6 is DENIED. Defendants Response and Cross-Motion for Summary Judgment ECF No. 9 is GRANTED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Fannin v. Smith et al Doc. 24 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 VERNON N. FANNIN, NO: 4:14-CV-5091-TOR Plaintiff, 8 v. 9 10 ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT LINDA SMITH, et al., Defendants. 11 12 13 BEFORE THE COURT are Plaintiff’s Motion for Summary Judgment (ECF 14 No. 6) and Defendants’ Response to Plaintiff’s Motion for Summary Judgment and 15 Cross-Motion for Summary Judgment (ECF No. 9). This matter was submitted for 16 consideration without oral argument. Plaintiff is proceeding pro se, but not in 17 forma pauperis in this Court. Defendants are represented by Joseph T. Edwards. 18 The Court has reviewed the briefing and the record and files herein, and is fully 19 informed. 20 // ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 BACKGROUND On July 29, 2014, Plaintiff filed a complaint in Franklin County Superior 3 Court alleging that Defendants had violated his civil rights. ECF No. 2-1. Plaintiff 4 served Defendants with the complaint on August 19, 2014. ECF No. 1. The case 5 was removed to this Court on September 4, 2014. Id. Plaintiff filed a motion for 6 summary judgment on February 20, 2015. ECF No. 6. Defendants responded to 7 that motion and filed a cross-motion for summary judgment on March 12, 2015. 8 ECF No. 9. For the reasons discussed below, the Court grants Defendants’ motion. 9 STANDARD OF REVIEW 10 Summary judgment may be granted to a moving party who demonstrates 11 “that there is no genuine dispute as to any material fact and that the movant is 12 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party 13 bears the initial burden of demonstrating the absence of any genuine issues of 14 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then 15 shifts to the non-moving party to identify specific genuine issues of material fact 16 which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 17 242, 256 (1986). “The mere existence of a scintilla of evidence in support of the 18 plaintiff’s position will be insufficient; there must be evidence on which the jury 19 could reasonably find for the plaintiff.” Id. at 252. 20 ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 2 1 For purposes of summary judgment, a fact is “material” if it might affect the 2 outcome of the suit under the governing law. Id. at 248. A dispute concerning any 3 such fact is “genuine” only where the evidence is such that a reasonable jury could 4 find in favor of the non-moving party. Id. In ruling upon a summary judgment 5 motion, a court must construe the facts, as well as all rational inferences therefrom, 6 in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 7 378 (2007). Only evidence which would be admissible at trial may be considered. 8 Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). FACTS 1 9 On September 26, 2013, Plaintiff, an inmate at the Coyote Ridge Corrections 10 11 Center (“CRCC”), began working in the Correctional Industries Laundry 12 (“Laundry”). ECF No. 14 at ¶ 4 (Linda Smith declaration). Defendant Linda 13 Smith, a correctional officer, was assigned to the Laundry to supervise offenders 14 working there. Id. at ¶ 2. While updating the photo book of offenders assigned to 15 the Laundry, Linda Smith noticed a number of offenders with the last name of 16 Fannin. Id. at ¶ 4. Linda Smith mentioned this to Plaintiff, who told her that the 17 only incarcerated Fannin he knew was his cousin, Jeremy Fannin. Id. 18 Linda Smith became concerned when Plaintiff mentioned this because her 19 son had recently been convicted of committing a crime with two other men, Evan 20 1 The following are the undisputed material facts unless otherwise noted. ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 3 1 Daly and Jeremy Fannin. Id. at ¶ 5. These two individuals were good friends with 2 her son, had visited her home, and knew about Linda Smith’s family. Id. Linda 3 Smith “looked up Jeremy Fannin and confirmed he was the same person” who had 4 committed the crime with her son. Id. Linda Smith then reported the information 5 to Chuck Hudgins, General Manager of Correctional Industries; Doug Tucker, 6 another Correctional Industries staff member; and Defendant Randall Smith, a 7 Correctional Industries sergeant. Id. at ¶ 6. Linda Smith did not take any further 8 action at the time because she believed that Plaintiff did not know who Linda 9 Smith was or of her connection to Plaintiff’s cousin as Linda Smith’s son had a 10 11 different last name. Id. In December 2013, Linda Smith became aware that Evan Daly was 12 scheduled for transfer to the CRCC. Id. at ¶ 7. Because of the personal 13 relationship between Daly and her son, Linda Smith completed a Report of 14 Contact/Relationship with an Offender form detailing that relationship. Id. Daly’s 15 transfer was cancelled because of this information. ECF Nos. 14 at ¶ 11; 21 at 16 ¶¶ 15, 16. 17 On January 13, 2014, Plaintiff was working in the Laundry and requested to 18 leave early because his aunt was visiting. ECF Nos. 14 at ¶ 8; 12-5 (log entry from 19 “1-13-14” stating “1040 I/M Fannin back to unit for visit”). That same day, 20 Plaintiff overheard Linda Smith tell another inmate, that “she was close to kicking ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 4 1 his ass” [that other inmate’s] and that “her foot was going to be so far up his ass 2 that he would have to get her shoe removed from his ass.” ECF Nos. 8-1 at 6 3 (Plaintiff’s statement to the administrative appeal board); 13-2 (Plaintiff’s January 4 27, 2014, kite). Plaintiff told a counselor and Sergeant “Todd”2 about this incident 5 the following day, January 14, 2014. ECF Nos. 8-1 at 6; 13-2. Sergeant Todd told 6 Plaintiff not to file a grievance and to first give him a chance to handle the matter. 7 ECF Nos. 8-1 at 6; 13-2. The next day, Plaintiff overheard Linda Smith tell 8 another inmate, she “knew what [Plaintiff] did” and that “if [Plaintiff] has anything 9 to say to her that [Plaintiff] should go talk to her.” ECF No. 8-1 at 6–7. Plaintiff 10 later heard from other inmates that Linda Smith was angry and had told the 11 inmates that Plaintiff “better watch out.” Id. at 7. 3 12 13 On January 17, 2014, Plaintiff met with Sergeant Randall Smith to discuss the matter. ECF Nos. 8-1 at 7; 21 at ¶ 10. 4 Plaintiff provided Randall Smith with 14 2 No further identification is provided for this individual. 3 Linda Smith denies threatening Plaintiff. ECF No. 14 at ¶ 14. For the purpose of 15 16 17 this summary judgment motion, the Court must assume Linda Smith engaged in 18 the conduct asserted by Plaintiff. 19 4 20 2014, and spoke with him that same day. ECF No. 21 at ¶ 10. In the light most Randall Smith states he became aware of Plaintiff’s complaints on January 14, ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 5 1 the names of the other offenders present when the statements were made. ECF No. 2 21 at ¶ 10. Randall Smith told Plaintiff that he would investigate the matter and 3 get back to Plaintiff after he had completed his investigation. ECF Nos. 8-1 at 6; 4 21 at ¶ 10. 5 Over the next few days, Randall Smith interviewed the three offenders 6 present. ECF No. 21 at ¶ 11. None of them could remember exactly what Linda 7 Smith had said, but they “indicated it was possible she made an inappropriate 8 comment in a joking manner.” Id. Randall Smith also interviewed Linda Smith 9 who indicated that she remembered joking with a group of offenders at lunch the 10 11 week prior, but could not remember exactly what she said. Id. at ¶ 12. That the timing of Plaintiff’s complaint coincided with his aunt’s visit 12 suggested to Linda Smith that Plaintiff may have discovered the connection 13 between his cousin and Linda Smith’s son. ECF No. 14 at ¶ 10. She worried that 14 Plaintiff may have learned of the connection when he heard other inmates call her 15 by her former last name, the one that her son uses, or that Plaintiff’s aunt may have 16 told Plaintiff about the contact report that had cancelled Jeremy Fannin’s transfer 17 to CRCC. Id. at ¶¶ 10–11. Linda Smith became concerned that this information 18 19 favorable to Plaintiff, the Court assumes for purposes of this motion that the 20 conversation occurred on January 17, not on January 14. ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 6 1 may jeopardize her safety and that of her son. Id. at ¶ 12. Linda Smith expressed 2 these concerns to Randall Smith. ECF Nos. 14 at ¶¶ 11, 12; 21 at ¶ 15. 3 On January 24, 2014, Randall Smith told Plaintiff that he had confirmed that 4 Linda Smith made inappropriate comments on January 13 and that the matter had 5 been resolved. ECF Nos. 6 at 5; 8-1 at 7–8; 21 at ¶ 14. Based upon his 6 investigation, Randall Smith concluded that Linda Smith made the comments in 7 jest, not intending them to be threatening. Id. at ¶ 13. Randall Smith wrote a 8 formal letter to Linda Smith recording that he spoke with her about “bantering with 9 the offenders” and expressed that she “should always set an example of 10 professionalism . . . . Future incidents of this kind may lead to further corrective 11 action.” ECF Nos. 8-1 at 11; 12-4. A copy of the letter was placed in Linda 12 Smith’s employee file. ECF Nos. 8-1 at 11; 12-4; 21 at ¶ 13. 13 On January 24, 2014, when Randall Smith discussed the formal letter with 14 Linda Smith, she raised concerns about Plaintiff’s possible knowledge of the 15 connection between his cousin and Linda Smith’s son. Randall Smith looked into 16 the matter. ECF No. 21 at ¶ 16. He concluded that, while he did not know 17 whether Plaintiff had personal information about Linda Smith, “due to the serious 18 safety and security concerns that would be present if [Plaintiff] knew personal 19 information about [Linda Smith], [he] decided it would be best for the safety and 20 security of [Linda Smith] and the facility that [Plaintiff] not work in the same area ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 7 1 as her.” Id. at ¶ 17. Randall Smith also concluded that removing Plaintiff from the 2 Laundry would make it less likely that he would make the connection between his 3 cousin and Linda Smith’s son or find out personal information about Linda Smith 4 if he had not already done so. Id. 5 On January 27, 2014, Plaintiff was informed that he had been unassigned 6 from his Laundry employment. ECF Nos. 8-1 at 8; 12-6. Plaintiff appealed that 7 decision to the Termination/Appeal Review Panel, indicating that he believed he 8 was unassigned as punishment for complaining about Linda Smith. ECF Nos. 13 9 at ¶ 5; 13-1; 13-2. Defendant Michelle Duncan, a Correctional Program Manager, 10 11 oversees and sits on the appeal panel. ECF No. 13 at ¶ 2. On February 3, 2014, the panel held a meeting and requested Randall Smith 12 address the panel’s concerns about Plaintiff being unassigned from the Laundry. 13 ECF No. 13 at ¶ 7. Randall Smith told the panel about the possibility that Plaintiff 14 had personal information regarding Linda Smith. ECF nos. 13 at ¶ 7; 21 at ¶ 21. 15 In light of that information, the panel upheld the decision to unassign Plaintiff from 16 the Laundry. ECF Nos. 13 at ¶ 7; 13-3. 17 Duncan informed Plaintiff that the decision to unassign him from the 18 Laundry was independent of the incident involving Linda Smith. ECF Nos. 13 at ¶ 19 10; 13-4 at 8; 13-5. Duncan also informed Plaintiff that he remained eligible for 20 employment and encouraged him to work with his classification counselor to ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 8 1 obtain a new job referral in another area. ECF Nos. 13 at ¶ 10; 13-4 at 8; 13-5. On 2 February 24, 2014, Randall Smith received a new work application from Plaintiff 3 and Plaintiff was hired thereafter to work in the Textiles area at the same rate of 4 pay he had at the Laundry. ECF Nos. 12-7; 21 at ¶ 23. 5 At the February meeting, the appeals panel directed Randall Smith to have 6 Linda Smith complete a Report of Contact/Relationship with an Offender form and 7 submit it to the Superintendent for determination of what further action may to be 8 needed regarding Plaintiff’s potential knowledge of Linda Smith’s personal 9 information. ECF No. 13 at ¶ 9; 21 at ¶ 21. Linda Smith submitted a Report of 10 Contact form on February 3, 2014, but upon review Randall Smith sent it back to 11 Linda Smith to revise and to include additional information. ECF Nos. 14 at ¶ 13; 12 21 at ¶¶ 21–22. The revised form was received on February 20, 2014. ECF Nos. 13 14 at ¶ 13; 21 at ¶ 22. Randall Smith noted on the form that “[a]fter being 14 informed of the connection between [Plaintiff] and Jeremy Fannin and the personal 15 information know by Jeremy Fannin regarding Officer Smith’s home and family, I 16 do believe this offender could create a serious problem for her working in the same 17 area.” ECF No. 13-7. The form was sent to the Superintendent for a decision on 18 how to proceed. ECF Nos. 21 at ¶ 22. On February 21, 2014, Superintendent Jeff 19 Uttecht signed the form and directed: “create facility separatee for [Plaintiff].” 20 ECF No. 13-7. ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 9 1 For an unknown reason, Duncan did not receive the document until August 2 19, 2014. ECF No. 13 at ¶ 13. At that time, she discussed the matter with 3 Superintendent Uttecht who reaffirmed the decision to enter a facility separatee 4 and to request that Plaintiff be transferred to another correctional facility. Id. On 5 August 21, 2014, after entering these documents, Duncan was informed by other 6 corrections personnel that Plaintiff was discussing and sharing documents from 7 this lawsuit with other inmates. ECF No. 13 at ¶ 14. These documents may have 8 included the Report of Contact form that Linda Smith had completed which 9 identified her son’s relationship to Plaintiff’s cousin. See ECF No. 21 at ¶ 24 10 (Plaintiff told Randall Smith in June 2014 that he had obtained a copy of the 11 report). After discussing the matter with Superintendent Uttecht, Duncan placed 12 Plaintiff in segregation until his transfer occurred the following week. ECF No. 13 13 at ¶ 14. 14 15 DISCUSSION Plaintiff asserts, pursuant to 42 U.S.C. § 1983, that Defendants have violated 16 his civil rights by unlawfully retaliating against him for complaining about 17 statements made by Linda Smith. Specifically, Plaintiff contends the Defendants 18 retaliated against him by (1) removing Plaintiff from his employment in the 19 Laundry, (2) ordering that Plaintiff be transferred to a different correctional 20 facility, and (3) placing Plaintiff in segregation. ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 10 1 To establish a § 1983 claim, a claimant must prove “(1) that a person acting 2 under color of state law committed the conduct at issue, and (2) that the conduct 3 deprived the claimant of some right, privilege, or immunity protected by the 4 Constitution or laws of the United States.” Leer v. Murphy, 844 F.2d 628, 632–33 5 (9th Cir. 1988). A person deprives another “of a constitutional right, within the 6 meaning of section 1983, if he does an affirmative act, participates in another's 7 affirmative acts, or omits to perform an act which he is legally required to do that 8 ‘causes’ the deprivation of which [the plaintiff complains].” Id. at 633 (brackets in 9 the original) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). 10 The parties do not dispute that Defendants were acting under color of state 11 law. The Court therefore turns its attention to whether Defendants committed an 12 act or participated in an act that deprived Plaintiff of some federal right, privilege, 13 or immunity. 14 “Prisoners have a First Amendment right to file grievances against prison 15 officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 16 1108, 1114 (9th Cir. 2012). “[A] viable claim of First Amendment retaliation 17 entails five basic elements: (1) An assertion that a state actor took some adverse 18 action against an inmate (2) because of (3) that prisoner's protected conduct, and 19 that such action (4) chilled the inmate's exercise of his First Amendment rights, 20 and (5) the action did not reasonably advance a legitimate correctional goal.” ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 11 1 Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (citing Resnick v. 2 Hayes, 213 F.3d 443, 449 (9th Cir. 2000) and Barnett v. Centoni, 31 F.3d 813, 3 815–16 (9th Cir. 1994)). 4 Defendants raise a defense based upon Plaintiff’s failure to carry his burden 5 on three of the above elements. First, Defendants contend that none of the named 6 Defendants acted adversely to Plaintiff in his segregation or transfer to another 7 correctional facility because those decisions were made by Superintendent Uttecht. 8 ECF No. 9 at 11–12. Second, Defendants contend that Plaintiff has failed to 9 establish that the actions undertaken were in order to retaliate against Plaintiff for 10 the complaint he made regarding Defendant Linda Smith. ECF No. 9 at 8–13. 11 Third, Defendants contend that Plaintiff has failed to show the absence of 12 legitimate penological interests in the actions undertaken. ECF No. 9 at 9–10. The 13 Court construes Defendants’ cross-motion to concede that Plaintiff engaged in 14 protected conduct by making a verbal complaint and that the adverse actions 15 chilled Plaintiff’s exercise of his First Amendment rights. The Court reviews each 16 of Defendants’ contentions in turn. 17 A. Adverse Action 18 To succeed in his claim, Plaintiff must show that Defendants took adverse 19 action against him. Watison, 668 F.3d at 1114. Plaintiff contends that the adverse 20 actions in this case were his unassignment from the Laundry, his transfer to ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 12 1 another correctional facility, and his segregation for a week before the transfer. 2 ECF No. 6 at 3, 5, 7. The Court must therefore inquire whether the record, taken 3 in the light most favorable to the Plaintiff, contains evidence from which a 4 reasonable factfinder could conclude that the named Defendants, acting on their 5 own or in concert with others, engaged in any of these adverse activities. See 6 Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (quoting Okwedy v. 7 Molinari, 333 F.3d 339, 343 (2d Cir. 2003) (per curiam)). 8 Defendants contend that Plaintiff has not established sufficient facts to 9 demonstrate that Defendant Linda Smith acted adversely to Plaintiff because 10 Defendant Linda Smith did not make the actual decision to unassign Plaintiff from 11 the Laundry. ECF Nos. 23 at 4. Likewise, Defendants contend that none of the 12 named Defendants acted adversely to Plaintiff in his transfer and segregation 13 because those actual decisions were made by Superintendent Uttecht. ECF No. 9 14 at 11–13. 15 However, it is not necessary that a defendant make the actual decision that 16 adversely affects a plaintiff in order to establish liability. The Ninth Circuit has 17 recognized that a subordinate’s liability in the § 1983 context can be established 18 not only “by some kind of direct personal participation in the deprivation, but also 19 by setting in motion a series of acts by others which the actor knows or reasonably 20 should know would cause others to inflict the constitutional injury.” Gilbrook v. ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 13 1 City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999). Likewise, the Ninth 2 Circuit has recognized liability in Title VII retaliation cases where “a subordinate, 3 in response to a plaintiff’s protected activity, sets in motion a proceeding by an 4 independent decision maker that leads to an adverse employment action,” or where 5 the “biased subordinate influenced or was involved in the decision or 6 decisionmaking process.” Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 7 2007). Defendants can defeat such “cat’s paw”5 theory of liability by showing that 8 the adverse action was “the consequence of an entirely independent investigation.” 9 Id. at 1183. 10 In this light, Plaintiff could establish that Defendant Linda Smith acted 11 adversely against him by showing that she set his unassignment in motion by 12 complaining of his potential relationship to her son knowing—or that she should 13 reasonably have known—that this would cause others to engage in the adverse 14 action against him. Similarly, viewing the facts in the light most favorable to 15 Plaintiff, he may be able to establish that the named Defendants acted adversely to 16 him in his transfer and segregation if he can show they influenced or were involved 17 18 5 19 20 See Poland, 494 F.3d at 1182 n.5, for citation to “a discussion of the etymology and acceptation” of this term. ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 14 1 with those decisions, or set those events in motion knowing what the likely result 2 would be. 3 B. Causation 4 However, in order for these claims to survive summary judgment, Plaintiff 5 must also show “a causal connection between the adverse action and the protected 6 conduct.” Watison, 668 F.3d at 1114. In arguing causation, Plaintiff points to the 7 fact that his unassignment from the Laundry occurred only a week after he 8 complained about Defendant Linda Smith. ECF No. 6 at 5. Plaintiff also points 9 out that his transfer was ordered on August 21, 2014, two days after this lawsuit 10 11 12 13 was served on Defendants. ECF No. 22 at 6. Plaintiff argues: Retaliatory motive may be shown by the timing of the allegedly retaliatory act and inconsistency with previous actions, as well as direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288-1289 (9th Cir. 2003). When an adverse action occurs shortly after the protected conduct, the 9th Circuit has held that the timing creates an inference of retaliatory motive. 14 15 16 ECF No. 6 at 5. Certainly, “timing can properly be considered as circumstantial evidence of 17 retaliatory intent.” Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995); see also 18 Watison, 668 F.3d at 1114 (“[A]llegation of a chronology of events from which 19 retaliation can be inferred is sufficient to survive dismissal.”). However, Bruce 20 does not create an automatic inference of retaliatory motive from timing alone as ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 15 1 Plaintiff suggests. Timing is but one factor that must be examined in the totality of 2 the circumstances in evaluating a motion for summary judgment. It is Plaintiff’s 3 burden to produce sufficient evidence for a reasonable jury to conclude that it is 4 more likely than not that Defendants acted with a substantial or motivating factor 5 to retaliate against Plaintiff. See CarePartners, LLC v. Lashwa, 545 F.3d 867, 877 6 (9th Cir. 2008). Unlike Bruce—where the plaintiff presented a combination of 7 incriminating statements, suspect timing, and questionable use of previously 8 dismissed evidence—Plaintiff’s only evidence in this case is the timing of the 9 actions, and this alone is insufficient to raise a triable issue. See Bruce, 351 F.3d at 10 1289; see also Anderson, 477 U.S. at 252 (“The mere existence of a scintilla of 11 evidence in support of the plaintiff’s position will be insufficient . . . .”). 12 C. Legitimate Penological Goal 13 In Turner v. Safley, the Supreme Court held that “when a prison regulation 14 impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably 15 related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 16 (1987). In determining whether a prison regulation is reasonably related to a 17 legitimate penological interest, courts examine four factors established in Turner: 18 (1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and 19 20 ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 16 1 (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. 2 3 Ashker v. California Dept. of Corrections, 350 F.3d 917, 922 (9th Cir. 2003) 4 (citations omitted). Prison officials must “put forward” a legitimate governmental 5 interest to justify their regulation and must provide evidence that the interest 6 proffered is the reason why the regulation was adopted or enforced. Walker v. 7 Sumner, 917 F.2d 382, 385 (9th Cir. 1990) (citations omitted). 8 9 In the retaliation context, Defendants may present evidence establishing the existence of legitimate penological reasons for the alleged retaliatory conduct. See 10 Pratt, 65 F.3d at 807 (“[W]e should ‘afford appropriate deference and flexibility’ 11 to prison officials in the evaluation of proffered legitimate penological reasons for 12 conduct alleged to be retaliatory.” (quoting Sandin v. Conner, 515 U.S. 472, 482 13 (1995)). If Defendants establish the existence of a legitimate penological goal for 14 the alleged adverse action, Plaintiff then bears the burden of “proving the absence 15 of legitimate correctional goals for the conduct of which he complains.” Pratt, 65 16 F.3d at 806; see also Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“The burden, 17 moreover, is not on the State to prove the validity of prison regulations but on the 18 prisoner to disprove it.”). Absent such a showing, Plaintiff’s claims cannot survive 19 summary judgment. 20 ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 17 1 The Department of Corrections (“DOC”) has a legitimate penological goal 2 in assuring the safety and security of its employees, their families, and of the 3 correctional facility. See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 4 1999) (“. . . there is no doubt that protecting the safety of guards in general is a 5 legitimate interest . . . .”). The question presented to the Court is whether the 6 Defendants' actions under the policy were “rational,” that is, whether the 7 Defendants might reasonably have thought their actions would advance their 8 interests in safety and security. See id. at 1060 (“The only question that we must 9 answer is whether the defendants’ judgment was ‘rational,’ that is, whether the 10 defendants might reasonably have thought that the policy would advance its 11 interests.”). 12 The DOC has established policy concerning relationships and contact 13 between its staff and offenders. DOC Policy 850.030; see ECF Nos. 8-4 at 26–30; 14 12-1. This policy cautions DOC staff “that personal relationships between their 15 immediate family and offenders or offenders’ known immediate family or 16 associates have the potential to pose conflicts and security risks at work and will be 17 avoided when known.” DOC Policy 850.030 Directive II(C). Defendant Randall 18 Smith articulated the potential conflicts and risks: 19 20 Offenders who obtain personal information of a staff member, or have a relationship with the staff member or their family, can use the information and attempt to strong-arm, threaten, or coerce the staff member to perform unauthorized activities or provide special ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 18 1 2 treatment. Offenders can also use personal information to harass a staff member’s family or direct non-incarcerated individuals to do so. Another concern is that offenders may share personal information about staff members with other offenders. 3 4 5 ECF No. 21 at ¶ 4. In light of these risks, correctional employees are required to report any 6 inmate relationship or contact to their Appointing Authority on a “Report of 7 Contact/Relationship with an Offender” form. DOC Policy 850.030 Directive 8 III(A)–(C). “The Appointing Authority has discretion to reassign an employee or 9 offender on a case-by-case basis to avoid potential conflicts.” DOC Policy 10 850.030. Directive III(C)(1). “Efforts to reassign the offender may be made before 11 reassigning the employee.” DOC Policy 850.030 Directive III(C)(1)(b). 12 DOC policy governing offender employment also states that offenders may 13 be suspended from their employment “based on security concerns.” DOC Policy 14 710.400 Directive VII(A); see ECF No. 12-2. A CRCC Operational Memorandum 15 on Work Programs for Offenders articulates the procedures for dealing with 16 offenders in work programs. CRCC Op. Mem. 700.000; see ECF NO. 12-3. 17 Under this policy, supervisors “may recommend administrative reassignment, 18 termination, or layoff of an offender . . . .” CRCC Op. Mem. Procedure IV(H). 19 Offenders may appeal decisions to terminate work assignments. CRCC Op. Mem. 20 IV(I). Defendant Randall Smith states: ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 19 1 2 3 4 If an offender obtains personal information regarding a staff member who works in Correctional Industries with the offender, one way under DOC Policy 710.400 and CRCC Operational Memorandum 700.000 to address the safety and security concerns . . . is to unassign the offender from the Correctional Industries position. This helps limit the offender’s contact with the staff member and protect the safety and security of the staff member immediately and does not preclude additional protective action under DOC Policy 850.030. 5 6 7 ECF No. 21 at ¶ 8. It is undisputed that Plaintiff’s cousin and Defendant Linda Smith’s son are 8 close friends, and that Plaintiff’s cousin has knowledge of personal information 9 about Defendant Linda Smith. Whether Defendant Linda Smith made 10 inappropriate comments to an inmate on January 13, 2013, and whether she may 11 have confronted Plaintiff about his complaint has no bearing on these facts or on 12 the legitimate concerns that Plaintiff may obtain personal information about 13 Defendant Linda Smith that would compromise her safety and security as well as 14 that of her family and of the facility. The Court concludes, based upon the 15 articulated policies and undisputed facts, that Defendant Randall Smith’s decision 16 to unassign Plaintiff from the Laundry was rationally related to advancing 17 legitimate penological goals. Plaintiff has presented no evidence to the contrary. 18 Furthermore, Superintendent Uttecht was granted authority to segregate and 19 transfer Plaintiff as the Appointing Authority pursuant to Policy 850.030 Directive 20 III(C)(1). The Superintendent was informed about concerns that the close ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 20 1 relationship between Plaintiff’s cousin and Defendant Linda Smith’s son could 2 create a serious problem. Superintendent Uttecht chose to reassign Plaintiff to 3 avoid the potential conflict. Superintendent Uttecht also learned that Plaintiff was 4 sharing information he had learned in the course of this lawsuit, including potential 5 personal information about Defendant Linda Smith he obtained through public 6 disclosure requests. ECF Nos. 3 at ¶ 14; 21 at ¶ 24. This heightened the concerns 7 that Plaintiff was in possession of and was actively sharing information which 8 could create serious safety and security problems. The Superintendent’s decision 9 to transfer Plaintiff and to segregate him until the transfer occurred in order to 10 prevent the spread of that information was rationally related to advancing 11 legitimate penological goals. Plaintiff has presented no evidence to the contrary. 12 Plaintiff bears the ultimate burden of “proving the absence of legitimate 13 correctional goals for the conduct of which he complains.” Pratt, 65 F.3d at 806. 14 Plaintiff has presented no evidence to rebut the Defendants’ showing that 15 legitimate penological concerns for the safety and security of staff, their family, 16 and the facility motivated Plaintiff’s unassignment from the Laundry, his transfer 17 to another facility, and his segregation. Defendants did no clearly communicate to 18 Plaintiff the reasons for their actions and Plaintiff’s frustration with the lack of 19 communication is understandable. However, because there is no evidence in the 20 record from which a reasonable factfinder could conclude that Defendants were not ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 21 1 acting to further legitimate penological goals Defendants are entitled to summary 2 judgment. 6 3 ACCORDINGLY, IT IS HEREBY ORDERED: 4 1) Plaintiff’s Motion for Summary Judgment (ECF No. 6) is DENIED. 5 2) Defendants’ Response and Cross-Motion for Summary Judgment (ECF No. 9) is GRANTED. 6 The District Court Executive is hereby directed to enter this Order, provide 7 8 copies to Plaintiff and Defendants’ counsel, enter JUDGMENT for Defendants on 9 all claims, and CLOSE the file. 10 DATED April 24, 2015. 11 12 THOMAS O. RICE United States District Judge 13 14 15 16 17 18 6 19 20 In light of this ruling, the Court need not address whether the Defendants are also entitled to qualified immunity. ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT ~ 22
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