Gronquist v. Cunningham et al, No. 4:2015cv05008 - Document 114 (E.D. Wash. 2016)
Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DENYING MR. GRONQUIST'S MOTION TO CERTIFY AND MOTION TO SHOW CAUSE, AND CLOSING FILE. Denying 74 Mr. Gronquist's Motion to Certify; denying 84 Mr. Gronquist's Motion for Order to Show Cause; granting 17 Defendants' Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (SK, Case Administrator)**47 PAGES, PRINT ALL**(Derek Gronquist, Prisoner ID: 943857)
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Gronquist v. Cunningham et al Doc. 114 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 Plaintiff, 8 v. 9 10 11 12 13 14 CASE NO. 4:15-CV-5008-EFS DEREK E. GRONQUIST, KELLON CUNNINGHAM; VICTOR OWENS; RAYDEAN GEORGE; CHRISTOPHER HICKS; HERBERT PENROSE; AMANDA WESTPHAL; VICTORIA TAPIA; ANA GARIBAY; GREG MCCOMBS; ROBERT J. LONG; JEFFERY A UTTECHT; ROY GONZALEZ; BERNARD WARNER; and the DEPARTMENT OF CORRECTIONS OF THE STATE OF WASHINGTON, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, DENYING MR. GRONQUIST’S MOTION TO CERTIFY AND MOTION TO SHOW CAUSE, AND CLOSING FILE Defendants. 15 16 Derek Gronquist, a prisoner in the Washington state penal system, 17 seeks relief from a variety of wrongs he asserts were committed by 18 Washington State Department of Corrections (DOC) and its employees: 1) 19 a violation of Washington’s Public Records Act (PRA), 2) 20 unconstitutional deprivation of his free speech, and 3) retaliation for 21 exercising his free-speech rights. In addition, Mr. Gronquist contends 22 that two state statutes that provide DOC with authority to regulate 23 prison mail and define “contraband” for prison-mail purposes are 24 unconstitutional. Defendants seek summary judgment in their favor on 25 the asserted claims, ECF No. 17, while Mr. Gronquist asks the Court to 26 ORDER - 1 Dockets.Justia.com 1 certify constitutional questions to the Washington Supreme Court, ECF 2 No. 74, and for an order requiring Defendants to show cause why documents 3 responsive to his PRA request were not disclosed, ECF No. 84. After 4 reviewing the record and relevant authority, the Court is fully informed 5 and 6 Gronquist’s motion for certification and show-cause motion. 7 A. grants Defendants’ summary-judgment motion and denies Mr. Factual Statement1 8 1. Public Records Act Request 9 Mr. Gronquist was housed at Washington’s Coyote Ridge Corrections 10 Center (CRCC) at all times relevant to the claims in this lawsuit. On 11 March 31, 2014, DOC received a public-records request from Mr. Gronquist 12 for “[a]ny and all grievances filed against Correctional Officer Kellon 13 Cunningham.”2 14 Correction Center (“Airway Heights”) and then relocated to CRCC’s H- 15 Unit, where he continues to work. The H-Unit houses about 250 minimum 16 custody offenders, including Mr. Gronquist. As part of his job duties, 17 Officer Cunningham conducts formal headcount, tier checks, and cell 18 inspections, 19 reports, and monitors the sliders and offender movement. Officer runs Cunningham mainlines, had worked supervises for porters, Airway conducts Heights monthly 20 21 1 The parties submitted a Joint Statement of Uncontroverted Facts. ECF No. 112. These uncontroverted facts are included in this Factual Statement 22 without a citation to the record. Facts that are supported with a citation 23 are those that were submitted by Mr. Gronquist, which were not flatly 24 contradicted by the record, and those submitted by Defendants, which were not contested by Mr. Gronquist. See Anderson v. Liberty Lobby, Inc., 477 25 26 U.S. 242, 255 (1986); Scott v. Harris, 550 U.S. 372, 380 (2007). 2 The request was assigned tracking log number PDU-28803. ORDER - 2 1 DOC responds to thousands of public-records requests every year. 2 Pernula Dec., ECF No. 19 ¶ 5. For instance, in 2013, DOC responded to 3 14,705 requests for inmate central and medical file reviews, health 4 records, and other records. Id. Of these 14,705 requests, 4,418 were 5 for records other than file reviews or offender health-related records 6 and were handled by the unit or designated statewide public disclosure 7 coordinators. Id. In response to these 4,418 requests, over 1.3 million 8 pages were gathered and offered to requestors. Id. DOC staff spent more 9 than 36,000 hours responding to these requests. Id. The majority of 10 those requests include some claim of exemption and redaction or 11 withholding of information. Id. At any one time, a PRA specialist may 12 have up to 80 open public-records requests assigned to her. Id. After 13 a public-records request is completed, the requestor has the opportunity 14 to appeal the response to DOC’s Public Disclosure Appeals Officer. Id. 15 The Public Disclosure Unit is a centralized unit located in DOC’s 16 Tumwater headquarters building currently employing 16 full-time staff, 17 including 3 administrative staff, 11 specialists, 1 supervisor, and 1 18 compliance manager. Id. ¶ 3. 19 When a public-records request is received, it is assigned a 20 tracking number, and assigned to either a specialist within the unit or 21 to a correctional facility or field office Public Disclosure Coordinator 22 or records staff for processing. Id. ¶ 4. The specialist determines the 23 response time-frames, which are based on many factors, including the 24 specialist’s and other staffs’ current workloads; the complexity and 25 scope of the records requested; the number of sources for potentially 26 responsive records and any other factor which may affect the production ORDER - 3 1 of the record. Id. DOC uses the SharePoint computer program to help 2 track the requests and responses thereto. Id. 3 The day that DOC received Mr. Gronquist’s public-records request, 4 DOC Public Disclosure Specialist Darla Koflanovich sent an email to DOC 5 Grievance Program Manager Clara Curl, inquiring if there is “any way to 6 search for grievances that might contain [C/O Kellon Cunningham’s] name 7 and get a report with the grievance numbers on it so I can pull them?” 8 Ms. Curl responded: 11 I would need to know when and where they worked, is there a timeframe to consider? We do not track complaints by staff grieved. I can check all staff conducts at the facility where they worked. I could get you a list of log#’s pretty quickly if I knew time, date, location. Does that help? 12 Ms. Koflanovich replied to Ms. Curl that she “will get the information 13 you need and route the request to you for a list.” 9 10 14 On April 1, 2014, Ms. Koflanovich sent Mr. Gronquist a letter 15 acknowledging receipt of the public-records request and stating that 16 his request was interpreted as asking for “all grievances filed against 17 Correctional 18 regarding your request within 48 business days, on or before June 6, 19 2014.” ECF No. 19, Attach. A at 11. Officer Kellon Cunningham” and “we will contact you 20 Ms. Koflanovich determined that Officer Cunningham worked at CRCC; 21 and she provided a copy of the request to CRCC. ECF No. 19 ¶ 9, Attach. 22 B. CRCC employees Valerie Ostrem and Mike McCourtie hand searched “all 23 paper copies of grievance records that included the name Cunningham, 24 such as “Kellon Cunningham,” “K. Cunningham,” or “Cunningham.” ECF No. 25 20 ¶ 2. They found 40 responsive documents. Ms. Ostrem’s search also 26 included a search on the log sheet for the name Cunningham to ensure ORDER - 4 1 that no grievances were missed during the hand search; this log search 2 revealed no additional grievances. Id ¶¶ 2 & 3. At this time, CRCC 3 maintained paper copies of grievances for three years. Id. ¶ 2. 4 On April 4, 2014, Ms. Koflanovich wrote Mr. Gronquist a letter 5 advising him that 40-responsive pages to his request for “[a] copy of 6 all grievances filed against Correctional Officer Kellon Cunningham” 7 had been gathered and would be provided to him upon his payment of the 8 identified photocopying fees. ECF No. 19-1 at 12-13. Mr. Gronquist 9 submitted payment. ECF No. 19-1 at 14-15. Upon receipt of the payment, 10 Ms. Koflanovich mailed the first installment of responsive records to 11 Mr. Gronquist on April 28, 2014. ECF No. 19-1 at 17; Attach. A at 14- 12 17. These were not received by CRCC mailroom staff until June 12, 2014, 13 at which time 31 of the documents were rejected by mailroom staff as 14 contraband because the documents contained information about other 15 inmates. Mr. Gronquist had the rejected documents mailed to his mother, 16 Ms. Parker. 17 Also on April 28, 2014, Ms. Koflanovich issued a “routing slip” 18 directing Grievance Program Manager Dale Caldwell to “gather a report 19 with all grievances related to C/O Kellon Cunningham,” clarifying that 20 “his employment began with DOC in 2008.” Mr. Caldwell responded to Ms. 21 Koflanovich the next day, stating: 24 Darla I can’t comply with your request as requested. Grievances are not filed by staff member. I can ran [sic] all grievances at that facility from 2008 to present - let me know if you can narrow the search I will forward the data as listed – thank [sic]. 25 Ms. Koflanovich replied to Mr. Caldwell that she would “contact HR and 26 get the facilities that the officer was at and the time period for 22 23 ORDER - 5 1 running the report.” Later that day, Ms. Koflanovich informed Mr. 2 Caldwell that she had spoken with a fellow employee who “suggested we 3 get a report of grievances about ‘staff misconduct’ for the dates and 4 facilities” where Mr. Cunningham had worked: Airway Heights Corrections 5 Center (“Airway Heights”) from April 16, 2008, to April 15, 2011, and 6 then CRCC thereafter. On April 30, 2014, Mr. Caldwell provided Ms. 7 Koflanovich with a list of staff-conduct grievance numbers for the two 8 facilities during the pertinent dates, emphasizing that he is “[n]ot 9 sure if this particular staff is mentioned in any of them.” Ms. 10 Koflanovich 11 Cunningham’s name within the 515 grievances listed on the report. Ms. 12 Koflanovich located 31 grievances against Officer Cunningham amongst 13 these grievances. Of these 31 grievances, 15 were filed at CRCC and 14 were not located during Mr. McCourtie’s and Ms. Ostrem’s hand search 15 of physical documents. 16 replied that she would begin her review for Officer On June 23, 2014, Mr. Gronquist was told that there were 68 more 17 responsive 18 documents, except for 3 pages which were not disclosed due to a computer- 19 security exemption, were mailed to Mr. Gronquist on July 23, 2014. ECF 20 No. 19, Attach. A at 18-27. About a week later these PRA documents were 21 received by the CRCC mailroom; mailroom staff rejected 33 pages as 22 contraband because they contained information about other inmates. Mr. 23 Gronquist had the rejected documents sent to his mother and requested 24 that she redact the other inmates’ names on the documents and then mail 25 the documents back to him. ECF No. 19, Attach. A at 28-29. These redacted 26 ORDER - 6 documents; he paid the copying fee, and the requested 1 documents were later rejected by the mailroom staff as contraband 2 because they contained redactions. 3 In July 2014, Ms. Koflanovich requested documents related to the 4 Prison Rape Elimination Act (PREA) investigation report against Kellon 5 Cunningham, Report #1210062. On August 25, 2014, DOC informed Mr. 6 Gronquist by letter that they had 98 more responsive pages. ECF No. 7 19, Attach. A at 31-32. The copying fee was paid, and records mailed 8 to Mr. Gronquist. ECF No. 19, Attach. A at 35-42. DOC mailed these 9 records to Mr. Gronquist on September 17, 2014. All but one of these 10 records were rejected by CRCC mailroom staff because the records 11 contained information about other inmates. The rejected records were 12 then mailed to Mr. Gronquist’s mother at Mr. Gronquist’s request. 13 Also, on September 17, 2014, Ms. Koflanovich informed Mr. Gronquist 14 that DOC’s response to his public-records request was “complete and now 15 closed.” Ms. Koflanovich did not identify any records that were being 16 withheld. 17 2. 18 When the documents sent to Mr. Gronquist in response to his public- 19 records request were mailed to him at CRCC, they were subject to DOC’s 20 mail policy. Mail entering and leaving CRCC, and other DOC facilities, 21 is subject to screening. RCW 72.09.530 provides: 22 23 24 25 26 CRCC Mailroom The secretary [of the Department of Corrections] shall, in consultation with the attorney general, adopt by rule a uniform policy that prohibits receipt or possession of anything that is determined to be contraband. The rule shall provide consistent maximum protection of legitimate penological interests, including prison security and order and deterrence of criminal activity. The rule shall protect the legitimate interests of the public and inmates in the exchange of ideas. The secretary shall establish a method of ORDER - 7 reviewing all incoming and outgoing material, consistent with constitutional constraints, for the purpose of confiscating anything determined to be contraband. The secretary shall consult regularly with the committee created under RCW 72.09.570 on the development of the policy and implementation of the rule. 1 2 3 4 “Contraband” is defined as “any object or communication the secretary 5 determines shall not be allowed to be: (a) [b]rought into; (b) possessed 6 while on the grounds of; or (c) sent from any institution under the 7 control of the secretary.” RCW 72.09.015(5). 8 To implement RCW 72.09.530, DOC established Policy 450.100, Mail 9 for Offenders. DOC Policy 450.1003 directs designated facility staff to 10 inspect and read incoming and outgoing mail to prevent the “[r]eceiving 11 or sending [of] contraband or any other material that threatens the 12 security and order of the facility through the mail, and . . . 13 [c]riminal activity.” Policy 450.100 authorizes mail to be rejected 14 “based on legitimate facility interests or order and security and/or 15 for any [of the 39 unauthorized mail] reasons identified: 16 Mail 17 1. 18 19 2. 20 21 3. 22 to or from offenders, including publications and eMessages/attachments, may be rejected for any of the following reasons: Not specifically authorized by DOC 450.100 Mail for Prison Offenders or any other policy or applicable Operational Memorandum Attempts to establish contact with a person or his/her guardian who has requested not to be contacted by the offender, when the offender is aware or should be aware of the request Violates sentencing conditions and/or court orders or otherwise attempts to establish prohibited contact between the sender and recipient 23 24 3 25 26 The language of DOC 450.100 was modified during the relevant time period. See Gonzalez Dec., ECF No. 21, Attach. A, DOC Policy 450.100(VII) (eff. July 25, 2011) and DOC Policy 450.100(IX) (eff. Aug. 15, 2014). ORDER - 8 1 4. 2 5. 3 4 6. 5 7. 6 8. 7 8 9. 9 10. 10 11 11. 12 13 12. 13. 14. 14 15. 15 16. 16 17. 17 18 19 20 18. 21 22 19. 23 24 20. 25 21. 26 ORDER - 9 Contains an unknown substance(s) or contraband, or relates to sending contraband into or out of the facility Contains items written or drawn in crayon or gel pen, or contains or has been treated with perfume, glitter, and/or other items that could be easily misidentified Contains escape plans and/or other information related to escape Provides technical/detailed information on security systems, equipment, and practices used in the correctional field Contains plans for activity that violates state/federal law, the Washington Administrative Code, Department policy, and/or local facility rules Contains instruction and/or “how to” material for committing illegal activities Depicts or describes the procedures for constructing or using weapons, ammunition, bombs, and/or other destructive devices, or includes life sized photograph(s)/graphic illustration(s) of these items Provides instructions on martial arts, fighting/selfdefense techniques, and/or how to disable/disarm others Appears to be in code Contains content in multiple languages Contains written/graphic information on security equipment/operations or facility blueprints/diagrams Contains detailed maps/charts of Washington, Oregon, Idaho, and/or British Columbia Contains information that could create a risk of physical harm to the offender or another person if the communication were allowed Contains sexually explicit material as defined in WAC 137-48-020 and/or references sexually explicit behavior. May include altered images, strategically placed graphics, or airbrushing. Sexually explicit behavior must be the predominant theme when rejecting written and/or audio based publications, letters, or eMessages. The publication(s) is not in English, with the exception of authorized religious books. May include dictionaries or glossaries translating words from the language to English. Contains publications or documents, other than legal mail sent from a legal entity/agency, that have been altered (e.g., pages torn/removed, extraneous markings, etc.) Advocates violence against others and/or the overthrow of authority Advocates that a protected class or group of individuals is inferior and/or makes such class/group the object of ridicule and/or scorn, and may reasonably be thought to 1 2 22. 3 23. 24. 4 5 25. 6 26. 7 8 27. 9 10 28. 29. 11 12 30. 13 14 31. 32. 15 33. 16 17 18 34. 19 35. 20 21 36. 37. 22 23 24 25 38. 26 ORDER - 10 precipitate a violent confrontation between the recipient and a member(s) of the target group Purports to be legal/special mail, but upon inspection is determined to be general correspondence Contains cash or personal check(s) Contains markings of gang symbols or symbols of other unauthorized groups that may reasonably be thought to precipitate violence Contains multiple or similar copies/photocopies of the same photograph, document, and/or publication/subscription, in whole or part Contains pre-franked envelopes and/or non-cancelled postage stamps, with the exception of eStamps, without prior approval from the Superintendent/designee Contains correspondence, information, or other items relating to another offender(s) without prior approval from the Superintendent/designee, or attempts or conveys unauthorized offender to offender correspondence Contains a blank greeting card or postcard Contains a photograph, card, poster, and/or calendar that is padded, laminated/layered, musical, and/or exceeds the storage dimensions noted in DOC 440.000 Personal Property for Offenders Contains an unauthorized cassette tape(s) and/or CD(s), including public disclosure CDs Contains clipping(s)/copies of copyrighted material Contains or attempts to obtain an item(s) not approved and paid for in advance through facility designated channels. Solicits money or anything of value from anyone other than the offender’s immediate family member without prior approval from the Superintendent/designee. This does not preclude authorized purchases through approved vendors Requests/directs another person to provide money or anything of value to a third party without prior approval from the Superintendent/designee Contains printed material other than correspondence for an offender currently assigned to a Reception Diagnostic Center Contains a metal and/or inflexible binder The eMessage videogram (i.e., pre-recorded video attached to an eMessage) does not comply with DOC 450.100 Mail for Prison Offenders or otherwise contains any display of nudity, behavior or actions that are sexual in nature, drugs/alcohol or related paraphernalia, weapons, graphics or paraphernalia associated with any Security Threat Group, or unlawful activity Contains copies that are being sent to a Reception Diagnostic Center 1 39. 2 3 Contains sweepstakes, contests, lottery tickets, or other mailings soliciting or offering games of chance. Publications that contain a sweepstakes or contest entry will not be restricted. However, offenders are not authorized to enter sweepstakes or contests of any kind. 4 ECF No. 21, Attach. A at 45-47. In regard to unauthorized mail, DOC 5 contends that it has a strong interest in not allowing inmates to possess 6 grievances pertaining to other inmates because inmates can use the 7 information therein to harass the named inmate or to intimidate and 8 strong-arm staff. Gonzalez Dec., ECF No. 21 ¶ 6. 9 The mailroom staff inspect the mail and determine whether the mail 10 may be delivered to an inmate or whether the mail must be rejected and 11 considered “contraband” pursuant to Policy 450.100. If the mail is 12 rejected, written notice on DOC Form 05-525, which indicates why the 13 mail was rejected, is given to both the inmate and the sender of the 14 mail. The notice advises the inmate of his right to appeal the rejection 15 to the facility superintendent/designee. 16 If the mail rejection is appealed, the facility superintendent 17 or his designee will review the rejection and affirm or reverse the 18 rejection. If the mail rejection is affirmed, the inmate or sender may 19 appeal the decision to the Assistant Secretary or his designee, who may 20 affirm or reverse the rejection. If the mail rejection is affirmed, the 21 inmate must pay to have the item mailed to a non-incarcerated person, 22 or the item will be destroyed or donated to charity. 23 CRCC mailroom employees Victoria Tapia and Ana Garibay work in the 24 mailroom and screen mail pursuant to Policy 450.100. On June 12, 2014, 25 they intercepted the first installment of grievance records produced by 26 the DOC’s Public Disclosure Unit in response to Mr. Gronquist’s public- ORDER - 11 1 records request. They issued a rejection notice for 31 of the 40 pages 2 because 3 address/DOC numbers.” Of the individuals identified as being inmates, 4 whose names, numbers, and institutional addresses were listed on the 5 rejected records, at least one – Robert Simonis – was not incarcerated 6 at that time. This rejection notice was sent even though no CRCC employee 7 or 8 information about another prisoner for an improper purpose. DOC allegedly had Gronquist contained knowledge appealed the that “other Mr. offender’s Gronquist rejection to CRCC had name/unit ever used Superintendent Jeffrey Uttecht, emphasizing that: Over the . . . last two decades I have routinely obtained, possessed, and used grievance records filed by other inmates to remedy the unlawful conduct of DOC employees . . . [and] have never revealed the contents of those grievances to any other inmate, or used the records for an improper purpose. 11 12 13 14 pages official Mr. 9 10 the Mr. Gronquist explained that he needed the records to discharge the duties which you fail to perform: to hold Mr. Cunningham accountable for his unprofessional and criminal conduct, and to protect Washington prisoners from further harm by his hand. 15 16 17 CRCC Lieutenant Robert Long, on behalf of Superintendent Uttecht, 18 affirmed the rejection, claiming that Mr. Gronquist is “not allowed to 19 possess information such as names and numbers of other offenders.” Mr. 20 Gronquist appealed Lieutenant Long’s decision. Correctional Manager Roy 21 Gonzalez denied the appeal, asserting that “offenders are not allowed 22 mail containing another offender’s correspondence or items.” Mr. 23 Gronquist had the rejected mail sent to his mother. 24 On July 29-30, 2014, CRCC mailroom officials Amanda Westphal and 25 Greg McCombs intercepted the second installment of grievance records 26 ORDER - 12 1 produced by the DOC’s Public Disclosure Unit in response to Mr. 2 Gronquist’s public-records request and issued a rejection notice for 3 33 of the 68 pages because they allegedly contained “information that, 4 if communicated, could create a risk of violence and/or physical harm 5 to any person [because they] . . . contain information about other 6 offenders currently incarcerated in WA state.” Of the individuals 7 identified as being “currently incarcerated in WA state,” at least one 8 – Karl Tobey – was not incarcerated at that time. 9 Mr. Gronquist appealed the rejection to Superintendent Uttecht. 10 Lieutenant Long, on behalf of Superintendent Uttecht, denied the appeal 11 without comment. A subsequent appeal was denied by Correctional Manager 12 Gonzalez, who claimed that in addition to the basis asserted by Ms. 13 Westphal and Mr. McCombs, “item 22 would also be applicable because it 14 contains another offenders [sic] information or documents such as the 15 grievance you noted.” 16 On August 28, 2014, CRCC mailroom employees Ms. Garibay and Mr. 17 McCombs reviewed a package of documents sent by Mr. Gronquist’s mother 18 to him. These documents were the records that were previously rejected 19 and sent to Mr. Gronquist’s mother and that she then attempted to redact 20 other inmate’s names. The mailroom staff issued a notice prohibiting 21 Mr. Gronquist from receiving these records because they were alleged to 22 contain “another offenders [sic] information” or were “altered.” Mr. 23 Gronquist appealed the rejection to Superintendent Uttecht. That appeal 24 was denied by Lieutenant Long without comment. Later, Superintendent 25 Uttecht affirmed the rejection, asserting that “mailroom staff were 26 acting in according [sic] to policy when they rejected your incoming ORDER - 13 1 mail due to it being altered.” Correctional Manager Gonzalez did not 2 respond to Mr. Gronquist’s subsequent appeal. 3 On September 22-23, 2014, CRCC mailroom employees Ms. Westphal and 4 Mr. McCombs reviewed the third-installment of records, which were 5 produced by DOC’s Public Disclosure Unit. A rejection notice was issued, 6 prohibiting Mr. Gronquist from receiving 98 of the 99 pages of the 7 records because they allegedly contained “correspondence, information, 8 or other items relating to another offender(s), or other items relating 9 to another offender(s) without prior approval from the 10 superintendent/designee, or attempts or conveys unauthorized offender 11 to offender correspondence.” Mr. Gronquist appealed the rejection to 12 Superintendent Uttecht, emphasizing: 13 14 15 I intend to use those records as evidence in a soon to be filed lawsuit over Mr. Cunningham’s conduct and your policy of retaliating against inmates for exercising their right to freely speak. I believe these records are being singled out for censorship in your deliberate attempt to hide that unconstitutional behavior from judicial intervention. 16 Lieutenant Long, on behalf of Superintendent Uttecht, affirmed the 17 rejection without comment. The appeal of this rejection was denied 18 without comment. These rejected pages were mailed to Mr. Gronquist’s 19 mother. 20 3. Grievance Program 21 DOC maintains and implements an Offender Grievance Program to 22 “promote[] proper and effective communication between staff and 23 offenders in an effort to resolve issues.” The Offender Grievance 24 Program requires inmates to file a grievance in order for certain 25 complaints to be heard and considered by DOC. 26 ORDER - 14 1 To file a grievance, an inmate writes his complaint on DOC Form 2 5-165 or an 8½” x 11” piece of paper and deposits it in a locked 3 grievance box. After the complaint is retrieved from the box, a facility 4 grievance 5 grievable, and if so, whether it will be processed as: coordinator 6 7 determines whether the issue presented is a routine grievance: concerning “policy or procedure, lack of policy or procedure, or the actions of another offender”; 8 an emergency grievance: concerning “a potential serious 9 threat to the life or health of an offender or staff member, 10 related to severe pain being suffered by the offender, or 11 that involve a potential threat to the orderly operation of 12 a facility, and its resolution would be too late if handled 13 through routine administrative or grievance channels”; or 14 an employee-conduct grievance: “against a specific, 15 identified 16 demeanor, language or actions,” including the allegations 17 of “retaliation for participation in the Offender Grievance 18 Program.” employee . . . for alleged inappropriate 19 After the grievance type is established, the grievance coordinator 20 types the complaint on Form 05-166 Level I – Initial Grievance, or Form 21 05-170 22 substance, and resolution, a grievance can proceed through four levels 23 of response, investigation, or review. for employee-conduct grievances. Depending on its type, 24 To manage inmate records and grievances, DOC uses a computer system 25 called OMNI to electronically store and retrieve inmate information. 26 ORDER - 15 1 OMNI permits: 1) remote data entry by local grievance coordinators, 2) 2 monitoring and auditing capability both locally and at the Grievance 3 Program Office, 3) indexing of complaints and grievances by the name of 4 individual offenders, 4) on-time synopsis of individual grievances and 5 their status within the grievance system, and 5) on-site generation of 6 statistical reports. In addition to OMNI’s electronic storage, paper- 7 grievance records are maintained in the relevant facility’s grievance 8 departments for at least six months, and the master grievance file is 9 maintained in DOC’s OnBase4 database for six years. OnBase is a document 10 imaging database where copies of all documents generated by staff and 11 offenders are stored. 12 4. Life at CRCC H-Unit 13 Inmates at CRCC, including the H-Unit, are subject to daily 14 headcounts at 6:20 a.m., 4:00 p.m., 9:05 p.m., and 12:00 a.m. ECF No. 15 97-2 at 131. To ensure the welfare of all inmates, Officer Cunningham 16 (and the other officers) perform daily headcounts, which require the 17 officers to count only “living, breathing flesh.” Cunningham Dec., ECF 18 No. 22, ¶¶ 1 & 2. To perform this task, Officer Cunningham loudly 19 announces into an intercom system that headcount will promptly take 20 place and that the inmates are to be out of their bunks. Id. ¶ 2. If an 21 inmate 22 compliance with headcount, they will be given a direct verbal directive; 23 if still not in compliance, the correctional officer will obtain the is unresponsive to a correctional 24 25 26 4 The database was formerly called Liberty. ORDER - 16 officer’s request for 1 assistance of another officer before either entering the living space 2 or escorting the non-compliant offender to segregation. Id. ¶ 2. Inmates 3 are informed of the formal count times and procedures at the time they 4 receive their orientation handbook. Id. The handbook specifically notes 5 formal count will be called by unit staff and announced overhead prior 6 to count beginning. Id. Inmates are also informed that, if correctional 7 officers are required to stop during the headcount and have to ask the 8 offender to become visible and identifiable, the offender will be 9 infracted for interfering with count. Id. 10 In addition to being subjected to daily headcounts, inmates have 11 restricted access to sundry items, such as toilet paper. Part of a 12 correctional officer’s duties is to restock the H-unit with toilet 13 paper. Officer Cunningham’s standard procedure during his eight-hour 14 shift (6:10 a.m. to 2:10 p.m.) was to resupply the unit in the morning 15 prior to 10:00 a.m. and when notified by the bathroom porter 16 necessary. Id. ¶ 3. 17 paper was also provided as needed. Id. When the H-Unit changed to 12- 18 hour shifts (5:30 a.m. to 6:00 p.m.), Officer Cunningham reports that 19 toilet paper was stocked shortly after the 6:20 a.m. count, when needed 20 throughout the afternoon, and then again prior to the graveyard shift 21 arriving. Id. Officer Cunningham states that additional toilet paper is 22 made readily available to unit porters to resupply the individual stalls 23 when necessary, id.; Mr. Gronquist challenges this assertion. as Officer Cunningham contends that additional toilet 24 On July 1 and 2, 2014, Mr. Gronquist filed grievances against 25 Officers Cunningham and Victor Owens for screaming over the H-Unit 26 intercom system at 6:30 a.m. and failing to stock the H-Unit bathrooms ORDER - 17 1 with sufficient toilet 2 Coordinator 3 grievances by “forward[ing] [the] complaint to [the] unit [Correctional 4 Unit Supervisor Christopher Hicks] and the captains office.” Two days 5 later, H-unit Sergeant Raydean George sent an email to each of the eight 6 correctional 7 Cunningham and Owens, stating: Michael paper. officers July 8, 2014, attempted McCourtie On to informally assigned to the H-Unit, CRCC’s Grievance resolve including the Officers 11 OK, even thou [sic] I like the outcome that is produced by loud meaningful announcements, it does bring a lot of negative response, that is making its way out of my control. This will be a short lived life if we try to fight to keep it as it is, sometimes it is better to retire something to keep other things ours. That being said I would like for you to turn the announcements down a notch. 12 Sergeant George forwarded a copy of the email to Supervisor Hicks, who 13 in turn forwarded it to the Grievance Coordinator McCourtie. 8 9 10 14 Mr. Gronquist was not satisfied with the response to his 15 grievances; he appealed to the next level. On July 24, 2014, Lieutenant 16 Herbert Penrose was assigned to investigate the grievance. During his 17 investigation, Lt. Penrose obtained statements from Mr. Gronquist, 18 Supervisor 19 interview, 20 paraphrased as: Hicks, Mr. and Officers Gronquist Cunningham expressed and concern, Owens.5 which During Lt. the Penrose 21 22 5 Officers Cunningham and Owens state that they have kept the fact 23 that Lt. Penrose questioned them about Mr. Gronquist’s two grievances 24 confidential until this lawsuit was filed. Cunningham Dec., ECF No. 22 25 ¶ 5. This is questioned by Mr. Gronquist. 26 ORDER - 18 3 I believe that [O]fficer Cunningham should be evaluated to determine fitness to interact with offenders or be directly supervised-[O]fficer Cunningham has the ability to get other[s] to do what he wants, even to disobey direct orders from headquarters/Olympia. 4 The same day, Officer Cunningham provided a statement: “I have been 5 unaware of [inmate] Gronquist’s concerns at any time prior to typing 6 this response[,] and first “became aware Gronquist filed a grievance 7 making complaints about my behavior when I was interviewed about the 8 allegations by Lt. Penrose.” Concerning the loud, early morning intercom 9 announcements, Officer Cunningham stated that it is “my full intention 10 to continue this detail as I have for over six years as it has proven 11 to be systematic, and productive.” Officer Owens’ statement denied any 12 wrongdoing. After his investigation, Lt. Penrose found that Officers 13 Cunningham and Owens were following CRCC’s written guidelines and denied 14 Mr. Gronquist’s grievance. Id. ¶ 4 & Attach. B. 1 2 15 After his investigation about the toilet-paper stocking, Lt. 16 Penrose determined that Officers Cunningham and Owens were complying 17 with Operations Memorandum 440.080, which requires unit staff to ensure 18 that all general restroom areas have toilet paper, and MI3 Unit Manual, 19 which indicates that state-issued supplies, including toilet paper, are 20 not for inmate retention. Penrose Dec., ECF No. 23 ¶ 3 & Attach. A. 21 On July 29, 2014, Officers Cunningham and Owens issued 39 22 disciplinary infractions to H-Unit inmates who interfered with headcount 23 by not making themselves “present” for headcount in violation of WAC 24 137-25-030(214). Cunningham Dec., ECF No. 22 ¶ 6. The infractions were 25 reviewed and approved by Supervisor Hicks. 26 ORDER - 19 Following 1 these infractions, Mr. Gronquist filed a grievance 2 against Lt. Penrose, Supervisor Hicks, Sergeant George, and Officers 3 Cunningham and Owens, claiming they retaliated against him for filing 4 grievances by issuing headcount infractions to H-Unit inmates. Lt. 5 Penrose investigated this grievance as well. Lt. Penrose interviewed 6 Mr. Gronquist, who stated that he had seen these CRCC employees engage 7 in a pattern of retaliation and he intended to file a lawsuit concerning 8 the retaliation. Lt. Penrose also interviewed Supervisor Hicks, Sergeant 9 George, and Officers Cunningham and Owens. Penrose Dec., ECF No. 23 ¶ 10 5 & Attach. C. Through his investigation, Lt. Penrose learned that H- 11 Unit officers had changed their headcount process in an attempt to 12 accommodate Mr. Gronquist’s previous complaint about the volume of the 13 count announcement. But because the volume of the announcement had been 14 lowered, the officers were needing to knock on cell fronts in order to 15 gain compliance with headcount. Id. Those inmates who failed to respond 16 to 17 information to support an allegation of threats made by staff to 18 offenders who filed grievances, such as Mr. Gronquist. Id. headcount directives were infracted. Id. Lt. Penrose found no 19 On November 18, 2014, Lt. Penrose was assigned to investigate 20 another grievance filed by Mr. Gronquist about CRCC employee misconduct. 21 During the interview, Mr. Gronquist indicated that Officer Cunningham 22 was spending time on the breezeway with other officers rather than doing 23 his job. Mr. Gronquist believed Officer Cunningham was abandoning his 24 post and believed it was creating a safety concern. Lt. Penrose also 25 interviewed Lt. Duncan in regard to the positioning of staff during 26 major movement ORDER - 20 from the living units. After his investigation, 1 Lt. Penrose found 2 directives, which require staff to be in the breezeways to observe the 3 movement process. He found nothing to substantiate Mr. Gronquist’s claim 4 of misconduct by Officer Cunningham. Penrose Dec., ECF No. 23, Attach 5 D. Inmates 6 have Officer filed Cunningham at least 66 was following grievances CRCC against written Officer 7 Cunningham, ranging from destruction of property to verbal abuse based 8 on sexual orientation or race. ECF No. 87 ¶ 1.32. Officer Cunningham 9 called Mr. Gronquist a “fucking rat” in front of other inmates. ECF No. 10 87 ¶ 1.47. 11 In December 2014, Mr. Gronquist filed this lawsuit in state court; 12 Defendants then removed the lawsuit to federal court. ECF No. 1. 13 Discovery 14 motion, ECF No. 17, and Mr. Gronquist filed his motion for certification 15 and his motion for show-cause order. ECF Nos. 74 & 84. During the 16 pendency of this lawsuit, Mr. Gronquist was moved from the two-man H- 17 Unit cell he had been assigned for two years to a four-man cell in CRCC 18 I-Unit. Id. 19 B. proceeded. Defendants filed the instant summary-judgment Standard 20 Summary judgment is appropriate if the record establishes “no 21 genuine dispute as to any material fact and the movant is entitled to 22 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 23 summary judgment must point to specific facts establishing a genuine 24 dispute of material fact for trial. 25 317, 324 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 26 U.S. 574, 586-87 (1986). If the non-moving party fails to make such a ORDER - 21 The party opposing Celotex Corp. v. Catrett, 477 U.S. 1 showing for any of the elements essential to his case for which he bears 2 the burden of proof, the court should grant the summary-judgment motion. 3 Celotex Corp., 477 U.S. at 322. 4 C. Analysis 5 Mr. Gronquist asserts four causes of action: 6 1. DOC violated the Public Records Act (PRA) by conducting an 7 unreasonable search in response to his public-records request 8 for grievances against Officer Cunningham; 9 2. Washington statutes relating to prison — RCW 72.09.530 and 10 72.09.015(5) — and the DOC mail policy are unconstitutionally 11 vague, 12 tribunals 13 violation of article I, section 5 of the Washington State 14 Constitution and the First and Fourteenth Amendments to the 15 U.S. Constitution; 16 3. overbroad, which and impose create prior administrative restraints upon censorship speech in Defendants Garibay, Tapia, Westphal, McCombs, Long, Uttecht, 17 and Gonzalez censored the public records, which were mailed 18 to Mr. Gronquist in response to his PRA request, in violation 19 of Washington State Constitution article I, section 5 and 20 the First Amendment to the U.S. Constitution; and 21 4. Defendants Cunningham, Owens, George, Hicks, Penrose, and 22 Uttecht violated Mr. Gronquist’s First Amendment rights by 23 retaliating against him for pursuing his grievance remedies. 24 25 26 ORDER - 22 1 Defendants seek summary judgment in their favor on each of these claims.6 2 The Court addresses each claim in turn. 3 1. Claim 1: the Public Records Act 4 Defendants contend that Mr. Gronquist is unable to establish a 5 triable issue of material fact to support his PRA claim, alleging that 6 Defendants 1) failed to conduct an objectively reasonable search for 7 “[a]ny and all grievances filed against Correctional [O]fficer Kellon 8 Cunningham,” 9 identifying them in an exemption log. Mr. Gronquist disagrees, arguing 10 that the public-records search and responses thereto were inadequate 11 and further that collateral estoppel bars relitigation of the issue of 12 whether DOC has a duty to search its records, written and electronic, 13 for grievances by a staff member’s name. and 2) withheld responsive records without properly 14 Beginning with Mr. Gronquist’s argument that DOC is collaterally 15 estopped from relitigating that it conducted an adequate PRA search, 16 the Court finds Defendants are not collaterally estopped from arguing 17 that the search conducted for grievances filed against Officer 18 19 6 Mr. Gronquist argues that Defendants’ summary-judgment motion does not 20 address Claim 2’s overbreadth or vagueness challenge or Claim 4’s policy 21 of retaliation. The Court finds that Mr. Gronquist was on notice that 22 Defendants sought summary judgment on each of his claims and Mr. 23 Gronquist had sufficient opportunity to provide argument and evidence 24 to support each of these claims. Accordingly, the Court analyzes whether 25 summary judgment is appropriate as to each of Mr. Gronquist’s claims. 26 ORDER - 23 1 Cunningham was reasonable. Under Washington law, collateral estoppel 2 requires the party seeking preclusion to establish that: 6 (1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding, (2) the earlier proceeding ended in a judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding, and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied. 7 Christensen v. Grant Cnty. Hosp. Dist. No. 1, 152 Wn.2d 299, 307 (2004); 8 see also Shoemaker v. City of Bremerton, 109 Wn.2d 504, 507 (1987). An 9 “issue” 3 4 5 to which collateral 10 evidentiary fact, or 11 (Second) of Judgments § 27(c) (1982). Whatever the type of issue, the 12 issue 13 determination must be essential to the judgment in order for litigation 14 of 15 Christensen, 16 § 27(f)–(h); Moore’s Federal Practice – Civil § 132.02. must that have issue 152 the been to be Wn.2d estoppel application actually 307; may of to litigated collaterally at applies law and estopped Restatement be one fact. a (Second) law, Restatement determined in of later of and that action. Judgments 17 Over a decade ago, Mr. Gronquist made a PRA request for “any and 18 all complaints or grievances ever filed against Omega Pacific Inc. or 19 Dan Stumph” – these were a medical provider and an employee who worked 20 at DOC. Unhappy with DOC’s response to his PRA request, Mr. Gronquist 21 filed a lawsuit in Spokane County. The Spokane County Superior Court 22 found that DOC failed to conduct an adequate search for the records and 23 ruled in Mr. Gronquist’s favor. 24 Although that case and this case both involve a challenge to DOC’s 25 response to a public-records request by Mr. Gronquist, they sought 26 records about different entities — there, Omega Pacific and Mr. Stumph; ORDER - 24 1 here, Officer Cunningham. Whether a PRA search is adequate is whether 2 it was “reasonably calculated to uncover all relevant documents.” 3 Neighborhood Alliance v. Cnty. of Spokane, 172 Wn.2d 702, 720 (2011). 4 This is an individualized inquiry. Id. And a search that was reasonably 5 calculated to uncover all relevant documents need not have actually 6 uncovered all responsive documents; therefore, a search can still be 7 adequate even if additional responsive documents exist but are not 8 disclosed. Id. This is because an agency need not “search every possible 9 place a record may conceivably be stored, but only those places where 10 it is reasonably likely to be found.” Id. 11 Given the individualized assessment that a court must use to 12 determine whether a public-records search was reasonable, the Court 13 finds the issues in this case and Mr. Gronquist’s prior PRA case are 14 not identical. Whether DOC’s search for records about Omega Pacific and 15 Mr. Stumph was reasonably calculated to uncover documents related to 16 them is a different inquiry than whether DOC conducted a reasonable 17 search to uncover grievances against Officer Cunningham. Furthermore, 18 the standards to apply when reviewing a PRA disclosure changed in 19 Neighborhood Alliance. Therefore, the first collateral-estoppel factor 20 (identical issues) is not met. DOC is not collaterally estopped from 21 arguing that its search for documents responsive to Mr. Gronquist’s 22 request for Officer Cunningham records was reasonably calculated to 23 uncover all relevant documents. 24 The Court next analyzes whether Mr. Gronquist has presented 25 sufficient evidence to establish a triable dispute of fact as to whether 26 DOC’s search for “[a]ny and all grievances filed against Correctional ORDER - 25 1 [O]fficer Kellon Cunningham” was adequate under the PRA. In pertinent 2 part, the PRA states: 3 “Public records shall be available for inspection and 4 copying, and agencies shall, upon request for identifiable 5 public records, make them promptly available to any person 6 including, if applicable, on a partial or installment 7 basis as records that are part of a larger set of requested 8 records are assembled or made ready for inspection or 9 disclosure.” RCW 42.56.080. 10 The agency has a duty to “make available for public 11 inspection and copying all public records, unless the 12 record falls within” a specific exemption. RCW 42.56.070. 13 An identifiable public record “is one for which the requestor has given 14 a reasonable description enabling the government employee to locate the 15 requested record.” Beal v. City of Seattle, 150 Wn. App. 865, 872 (2009); 16 see also WAC 44-14-04002(1) (“In general, a ‘reasonably locatable’ 17 electronic record is one which can be located with typical search 18 features and organizing methods contained in the agency’s current 19 software.”). 20 Consistent with the PRA, an agency is required to: 21 conduct an objectively reasonable search for responsive records. . . One of the most important parts of an adequate search is to decide how wide the search will be. If the agency is small, it might be appropriate to initially ask all agency employees if they have responsive records. If the agency is larger, the agency may choose to initially ask only the staff of the department or departments of an agency most likely to have the records. . . It is better to be over inclusive rather than under inclusive when deciding which staff should be contacted, but not everyone in an agency needs to be asked if 22 23 24 25 26 ORDER - 26 there is no reason to believe he or she has responsive records. An e-mail to staff selected as most likely to have responsive records is usually sufficient. Such an e-mail also allows an agency to document whom it asked for records. 1 2 3 WAC 44-14-04003(9). If the request is unclear, an agency is required to 4 communicate with the requestor to clarify the request. RCW 42.56.520; 5 WAC 44-14-04003(3). The agency bears the burden to establish that 6 refusal to permit public inspection and copying was in accordance with 7 the PRA. RCW 42.56.550(1). When interpreting and applying the PRA, the 8 court must liberally construe the PRA’s application and narrowly 9 construe the PRA’s exemptions. Bonamy v. City of Seattle, 92 Wn. App. 10 403, 408-09 (1998); RCW 42.56.030 (“In the event of conflict between 11 the provisions of this chapter and any other act, the provisions of 12 this chapter shall govern.”). To satisfy its burden of showing that its 13 search was reasonably calculated to uncover all relevant documents, DOC 14 may “rely on reasonably detailed, nonconclusory affidavits submitted in 15 good faith” that “include the search terms and the type of search 16 performed” and “establish that all places likely to contain responsive 17 materials were searched.” Neighborhood Alliance of Spokane Cnty., 172 18 Wn.2d at 721. 19 Here, DOC submitted declarations from DOC Public Records Office 20 employees and CRCC employees. The submitted documents and declarations 21 indicate that upon receipt of Mr. Gronquist’s PRA request, DOC asked 22 CRCC to go through its paper records to search for “[a]ny and all 23 grievances filed against Correctional [O]fficer Kellon Cunningham.” 24 Because CRCC had to go through its paper records by hand, it elected to 25 produce any grievance that named Officer Cunningham. 26 ORDER - 27 1 Then DOC sought to conduct a search of its electronic database for 2 responsive records. This database is not searchable by a staff member’s 3 name. Instead the documents are organized by the type of grievance, 4 date, facility, offender, and/or assigned grievance number. Once the 5 date(s), facility, offender and/or assigned grievance number(s) is 6 selected, then the DOC employee can pull up a particular grievance 7 through OMNI and review the grievance to determine whether it contains 8 a staff member’s name. Here, DOC pulled all employee-conduct grievances 9 at the two facilities for the time periods for which Officer Cunningham 10 worked, thereby excluding routine and emergency grievances. 11 Mr. Gronquist challenges DOC’s decision to limit its search to 12 only employee-conduct grievances. But the Court finds this employee- 13 conduct restriction reasonable because Mr. Gronquist did not request 14 any and all grievances “relating to” or “involving” Officer Cunningham; 15 instead, 16 Cunningham. 17 definition of employee-conduct grievance as set forth in the Offender 18 Grievance Program literature. Therefore, the Court finds DOC reasonably 19 interpreted 20 grievances. he requested This Mr. is a any and narrow Gronquist’s all grievances request request to and is seek “against” consistent only Officer with the employee-conduct 21 Mr. Gronquist submits that DOC was required to confer with him 22 regarding the scope of his public-records request before limiting the 23 search to employee-conduct grievances, and/or at a minimum to advise 24 him that it so limited his request. Yet, an agency has a duty to confer 25 with the requestor if the request is unclear: Mr. Gronquist’s request 26 was not unclear, he sought grievances “against” Officer Cunningham. This ORDER - 28 1 would not include routine grievances, as routine grievances pertain to 2 policy or actions of another offender, or an emergency grievance, which 3 concerns a threat to the life or health of an offender or a threat to 4 the orderly operation of a facility. DOC Offender Grievance Program, 5 ECF No. 98, Ex. 1 at 31-32. In comparison, the Offender Grievance Program 6 defines an employee-conduct grievance: “against a specific, identified 7 employee . . . for alleged inappropriate demeanor, language or actions,” 8 including the allegations of “retaliation for participation in the 9 Offender Grievance Program.” Id. at 32 (emphasis added). This comports 10 with Mr. Gronquist’s public-records request for grievances against 11 Officer Cunningham, and DOC’s decision to restrict its search for 12 responsive electronic records to employee-conduct grievances at the two 13 facilities that Officer Cunningham worked, for the dates that he worked 14 at those facilities, was reasonably calculated to uncover all relevant 15 documents. DOC did not need to advise Mr. Gronquist that it had not 16 searched all electronic records for grievances against, or more broadly, 17 concerning, Officer Cunningham. 18 All employee-conduct grievances for the time periods that Officer 19 Cunningham 20 reviewed to determine if it was a grievance filed against Officer 21 Cunningham. If it was, it was produced to Mr. Gronquist. That there 22 were apparently some grievances against Officer Cunningham that were 23 not produced by DOC in connection with its search does not undermine 24 that DOC’s search was reasonably calculated to uncover all relevant 25 grievances against Officer Cunningham. 26 ORDER - 29 worked at Airway Heights and CRCC were electronically 1 Accordingly, the Court grants Defendants summary judgment as to 2 Mr. Gronquist’s PRA claim; DOC conducted a search that was reasonably 3 calculated to discover the requested documents and it need not have 4 conferred with Mr. Gronquist in order to clarify his request or advise 5 him that its search included a hand search of paper records at CRCC and 6 an electronic search of the OMNI employee-misconduct grievances. 7 Because the Court finds that DOC’s searches were reasonably 8 calculated to find all responsive documents, the Court denies Mr. 9 Gronquist’s Motion to Show Cause, ECF No. 84, which asks the Court to 10 order DOC to conduct another search of its entire electronic database 11 for all grievances during the time periods that Officer Cunningham 12 worked at the two facilities. 13 14 15 16 17 2. Claims 2 and 3: Constitutionality of RCW 72.09.530, RCW 72.09.015(5), and the Mail Policy, and 42 U.S.C. § 1983 Mr. Gronquist asserts both a facial and an as-applied challenge to the constitutionality of two state statutes: 18 19 20 21 22 23 24 25 26 ORDER - 30 RCW 72.09.530: “The secretary shall, in consultation with the attorney general, adopt by rule a uniform policy that prohibits receipt or possession of anything that is determined to be contraband. The rule shall provide consistent maximum protection of legitimate penological interests, including prison security and order and deterrence of criminal activity. The rule shall protect the legitimate interests of the public and inmates in the exchange of ideas. The secretary shall establish a method of reviewing all incoming and outgoing material, consistent with constitutional constraints, for the purpose of confiscating anything determined to be contraband. The secretary shall consult regularly with the committee created under RCW 72.09.570 on the development of the policy and implementation of the rule.” RCW 72.09.015(5): defines “contraband” for purposes of RCW Chapter 72.09 as “any object or communication the secretary 2 determines shall not be allowed to be: (a) [b]rought into; (b) possessed while on the grounds of; or (c) sent from any institution under the control of the secretary.” 3 Defendants ask the Court to rule that RCW 72.09.530 and RCW 72.09.015(5) 4 are constitutional because: 1) these statutes do not impose a final 5 prior restraint on lawfully obtained and true matters of public record 6 in violation of Washington State Constitution article I, section 5 of 7 the, 2) these statutes are not overbroad in violation of article I, 8 section 5 of the Washington State Constitution and the First Amendment, 9 and 3) the statutes sufficiently define terms consistent with the 10 Fourteenth Amendment Due Process Clause – a protection that applies only 11 to penal sanctions. 1 12 Rather than have the Court rule on these issues, Mr. Gronquist 13 asks the Court to certify the following questions to the Washington 14 Supreme Court: 1. Whether RCW 72.09.530 violates Article I, section 5, of the Washington State Constitution by creating an administrative censorship system that allows prison officials to impose final prior restraint censorships upon communications mailed to a prisoner in the absence of judicial superintendence? 2. Whether DOC orders imposing prior restraint censorships upon a plaintiff prisoner’s receipt, review, and use of lawfully obtained, true, matters of public record revealing the misconduct of prison officials violates Article I, section 5 of the Washington State Constitution? 3. Whether Article I, section 5 of the Washington State Constitution provides greater protection to the free speech rights of prisoners than the First Amendment to the United States Constitution and, if so, what is the appropriate standard to review prisoner state constitutional free speech claims under? 4. 15 Whether the word “contraband” used in RCW 72.09.530 and defined by RCW 72.09.015(5) is unconstitutionally vague 16 17 18 19 20 21 22 23 24 25 26 ORDER - 31 under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution? 1 2 5. Whether RCW 72.09.530 and RCW 72.09.015(5)’s use of the word “contraband” to define what may be censored is overbroad in violation of Article I, section 5 of the Washington State Constitution or the First Amendment to the U.S. Constitution by sweeping within its ambit lawfully obtained, true, matters of public record that reveal the misconduct of state employees? 3 4 5 6 ECF No. 74 at 2-3. Mr. Gronquist submits that these questions, in 7 particular the first three questions, are matters of first impression 8 in Washington, and that the Washington Supreme Court, not this Court, 9 should resolve these questions. Defendants oppose certification, 10 contending that these issues can be decided under existing Washington 11 Supreme Court case law, including State v. Gunwall, 106 Wn.2d 54, 64 12 (1986), and Livingston v. Cedeno, 164 Wn.2d 46 (2008). 13 RCW 2.60.020 permits federal courts to certify issues to the 14 Washington Supreme Court: 15 16 17 18 When in the opinion of any federal court before whom a proceeding is pending, it is necessary to ascertain the local law of this state in order to dispose of such proceeding and the local law has not been clearly determined, such federal court may certify to the supreme court for answer the question of local law involved and the supreme court shall render its opinion and answer thereto. 19 RCW 2.60.020. The decision to certify an issue to a state supreme court 20 lies within a district court’s sound discretion. Lehman Bros. v. Schein, 21 416 U.S. 386, 391 (1974). But federal courts should only certify issues 22 after careful consideration because this procedure is “reserved for 23 state law questions that present significant issues, including those 24 with important public policy ramifications, and that have not yet been 25 26 ORDER - 32 1 resolved by the state courts.” Kremen v. Cohen, 325 F.3d 1035, 1037 2 (9th Cir. 2003). a. 3 Free Speech: overbreadth – prior restraint 4 The free-speech issues raised by Mr. Gronquist are complicated and 5 multi-faceted given the many articulated free-speech analytical tests, 6 which are dependent on the type of speech, the forum, and the nature of 7 the restriction. The constitutional provisions at issue provide: 8 First Amendment: “Congress shall make no law respecting an 9 establishment of religion, or prohibiting the free exercise 10 thereof; or abridging the freedom of speech, or of the press, 11 or the right of the people peaceably to assemble, and to 12 petition the Government for redress of grievances.” 13 Washington Constitution Article 1section 5: “Every person 14 may freely speak, write and publish on all subjects, being 15 responsible for the abuse of that right.” 16 These rights extend to the right to receive information and ideas. 17 Bradburn v. N.C. Reg’l Library Dist., 168 Wn.2d 780, 803 (2010). And 18 “[p]rison walls do not form a barrier separating prison inmates from 19 the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 20 (1987). 21 Based on these free-speech principles, Mr. Gronquist contends that 22 DOC is violating prisoner’s free-speech rights by imposing overbroad, 23 prior restraints on communications, i.e., treating documents that are 24 mailed to prisoners in response to a Public Records Act request as 25 contraband and thereby rejecting the documents. 26 ORDER - 33 1 In addition to these free-speech principles, the Court must also 2 consider that both the U.S. Supreme Court and the Washington Supreme 3 Court recognize that courts are “ill-equipped to deal with” the complex 4 problems 5 committing prison resources. Turner, 482 U.S. at 84-85 (citing Procunier 6 v. Martinez, 416 U.S. 396, 405 (1974)); McNabb v. Dep’t of Corrs., 163 7 Wn.2d 393, 406 (2008) (“Turner calls for judicial deference to the 8 decisions of prison administrators in light of their unique interest in 9 maintaining facing prison security administrators and day-to-day in regard order.”). to planning Therefore, and judicial 10 restraint is to be accorded when reviewing prison regulations and 11 administrative policies. Turner, 482 U.S. at 84-95; McNabb, 163 Wn.2d 12 at 406 (“Consonant with Turner and the majority view amongst our sister 13 states, we conclude that the unique demands of prison administration 14 warrant judicial deference to prison administrative decisions.”). 15 In order to serve both of these interests (the constitutional 16 rights of inmates, and deference to prison authorities as to the 17 maintaining of prison security), the U.S. Supreme Court formulated a 18 standard of review for prisoner’s constitutional claims under the First 19 Amendment: 20 1. “There must be a valid, rational connection between the 21 prison regulation and the legitimate government interest put 22 forward to justify it”; 23 2. “[W]hether there are alternative means of exercising the right that remain open to prison inmates”; 24 25 26 ORDER - 34 1 3. “[T]he impact accommodation of the asserted constitutional 2 right will have on guards and other inmates, and on the 3 allocation of prison resources generally”; and 4 4. Whether there are “obvious, easy alternatives” to the prison regulation. 5 6 Turner, 482 U.S. at 89-91 (internal citations and quotations omitted); 7 see also Hudson v. Palmer, 468 U.S. 517, 547 (1984) (Stevens, J., 8 concurring) (“This Court has held that the First Amendment entitles a 9 prisoner to receive and send mail, subject only to the institution's 10 right to censor letters or withhold delivery if necessary to protect 11 institutional security, and if accompanied by appropriate procedural 12 safeguards.”). 13 Mr. Gronquist submits that the federal Turner standard does not 14 apply to his Washington free-speech overbreadth and prior restraint 15 claims because article I, section 5 provides more protection for speech 16 activities than does the First Amendment. Mr. Gronquist aptly points 17 out that Washington courts have not specifically ruled on the issue of 18 what standard of review to apply under these circumstances. 19 the Washington Supreme Court specifically highlighted it was not asked 20 to rule on this issue in Livingston v. Cedeno, wherein the court ruled 21 that DOC’s refusal to allow a prisoner access to public records, which 22 were sent to him in response to a PRA request, did not violate the PRA: 23 “Livingston has not challenged the reasonableness of the [DOC]’s mail 24 policy or the characterization of the record as ‘contraband.’” 164 Wn.2d 25 46, 55 (2008). 26 ORDER - 35 In fact, 1 Mr. Gronquist asks the Court to apply the six-factors7 set forth 2 by the Washington Supreme Court in State v. Gunwall, 106 Wn.2d 54, 64 3 (1986), to determine whether the Washington Supreme Court will apply a 4 less deferential standard to DOC’s mail “contraband” policy than the 5 federal Turner standard. However, the Court need not engage in a Gunwall 6 analysis because Washington Supreme Court jurisprudence, including City 7 of Seattle v. Huff, 111 Wn.2d 923 (1989), Bradburn v. North Central 8 Regional 9 provides guidance as to the standard to apply in this circumstance — 10 Library District, 168 Wn.2d 789 (2010), and Livingston, the same standard as that utilized under the First Amendment. 11 As Washington jurisprudence recognizes, a Washington state prison 12 is a nonpublic forum. Bradburn, 168 Wn.2d at 813-14 (recognizing that 13 a public forum is a forum that the government makes open for use by the 14 public to assemble, express thoughts, and discuss public questions). In 15 Huff, the Washington Supreme Court ruled that when a nonpublic forum is 16 at issue, federal analysis applies. 111 Wn.2d at 928 (utilizing federal 17 standards 18 prohibited threats made during a telephone call). Therefore, article I, to analyze a viewpoint neutral Seattle ordinance that 19 20 7 In Gunwall, the Washington Supreme Court set forth six factors that a court 21 considers 22 extends broader rights to Washington citizens than the U.S. Constitution: 1) the when state determining whether constitution’s the textual Washington language, 2) State Constitution whether there are 23 significant differences in the texts of parallel provisions of the federal 24 and state constitutions, 3) state constitutional and common law history, 4) preexisting state law, 5) the state and federal constitution structural 25 26 differences, and 6) whether there are matters of particular state interest or local concern. 106 Wn.2d at 61. ORDER - 36 1 section 5 does not afford more protection than the First Amendment in 2 the confines of a prison — a nonpublic forum. See id. 3 As previously stated, Turner sets forth a deferential 4 constitutional standard of review in regard to prison management. The 5 federal analysis used to analyze a free-speech matter within the prison 6 setting. This deferential standard is consistent with the Washington 7 Supreme Court’s holding in Livingston. While Livingston did not address 8 the First Amendment constitutional question, the Washington Supreme 9 Court’s decision was rooted in the understanding that DOC “has broad 10 discretion to decide . . . [what] records may be allowed inside a 11 correctional institution” in light of “legitimate penological [safety] 12 interests.” 164 Wn.2d at 52 & 54. This is because “[t]he primary 13 objective of the correctional system . . . is to provide the maximum 14 feasible safety’ for the public, staff, and inmates.” Id. at 52-53 15 (quoting RCW 72.09.010(1)). 16 Based on the language and holding in Livingston and because 17 Washington applies federal analysis to speech in nonpublic forums (a 18 prison), the Court determines that Washington state courts will apply 19 the federal Turner test to the free-speech issue before the Court: 20 whether RCW 72.09.530 and RCW 72.09.015(5) and the mail policy are 21 overbroad and constitute a prior restraint. Accordingly, the Court 22 decides it is unnecessary to certify Mr. Gronquist’s third proposed 23 question: 24 Constitution provides greater protection to the free-speech rights of 25 prisoners than the First Amendment. In this regard, Mr. Gronquist’s 26 motion to certify is denied. ORDER - 37 whether article I, section 5 of the Washington State 1 The Court now analyzes Mr. Gronquist’s facial overbreadth and 2 prior-restraint challenges to the two Washington statutes and prison 3 mail policy. A prior restraint on speech is “the most serious and least 4 tolerable infringement on First Amendment rights.” Nebraska Press Ass’n 5 v. Stuart, 427 U.S. 539, 559 (1975). A statute may be invalidated as 6 overboard 7 unconstitutional, judged in relation to the statute’s plainly legitimate 8 sweep,” Wash. State Grange v. Wash. State Rep’n Party, 552 U.S. 442, 9 449, n.6 (2008) (internal quotation marks omitted), or if there “no set 10 of circumstances exist under which” the statute would be valid, or the 11 statute lacks any “plainly legitimate sweep.” United States v. Stevens, 12 559 13 overbreadth analysis requires the court to construe the challenged 14 statute to determine what the statute covers. Stevens, 559 U.S. at 474. 15 U.S. The if 460, “a 473 language substantial (2010) of RCW number (internal 72.09.530 of its quotation and RCW applications marks omitted). 72.09.015(5) are An provides 16 considerable discretion to the DOC Secretary to adopt rules (or to 17 define contraband) consistent with the “maximum protection of legitimate 18 penological 19 deterrence of criminal activity.” RCW 72.09.530. RCW 72.09.530 also 20 recognizes that prison mail policies must “protect the legitimate 21 interests of the public and inmates in the exchange of ideas.” To 22 implement these statutory directives, DOC created and implemented the 23 DOC Policy 450.100 and its 39 unauthorized-mail categories. interests, including prison security and order and 24 To determine whether these statutes and the mail policy are 25 overbroad or unconstitutional prior restraints, the Court evaluates them 26 under the four Turner factors. See Shakur v. Schiriro, 514 F.3d 878, ORDER - 38 1 884 (9th Cir. 2008) (summarizing Turner factors). As to the first Turner 2 factor, DOC has identified a valid, rational connection between these 3 statutes and its prison mail policy: the need to maintain the safety 4 and security of the offenders, staff, facilities, and public. DOC staff 5 inspect and read incoming and outgoing mail to prevent criminal activity 6 and to restrict the receipt of any material that threatens the security 7 and order of the facility. DOC considers mail that contains other 8 offender information to be mail that threatens the security and order 9 of the facility because if another offender receives such information 10 there is a possibility that information will be used to blackmail 11 offenders or staff or to target them for harassment or violence. These 12 are valid, rational reasons for RCW 72.09.530 and RCW 72.09.015(5) and 13 its implemented mail policy. 14 As to the second Turner factor, whether inmates have alternative 15 means of exercising their First Amendment free-speech right to receive 16 mail, the mail policy permits an inmate to have rejected mail sent to 17 an individual outside of the facility or to seek prior approval from 18 the superintendent or his designee to receive the mail. The mail policy 19 also 20 rejection. Mr. Gronquist complains that this alternative is practically 21 ineffective because he sought to have his mother redact the other 22 offender’s names and numbers from the public records but then when these 23 redacted records were returned that they were rejected again for being 24 redacted. Further, Mr. Gronquist contends that in order for him to be 25 able to pursue litigation that seeks to correct wrongdoings by prison 26 staff he must have access to the material — not his mother who is a lay establishes ORDER - 39 a multi-level appeal system to challenge a mail 1 person. The Court recognizes that Mr. Gronquist’s pre-lawsuit ability 2 to obtain and possess records pertaining to other inmates is restricted, 3 and that he is largely unable to take steps to remedy systemic wrongs 4 in the prison without litigation. However, Mr. Gronquist has the ability 5 to file grievances to seek relief for action taken against him by a 6 prison official, and the record reflects that he has exercised this 7 right. Further, once Mr. Gronquist files a lawsuit alleging a systemic 8 wrongdoing at the prison, Mr. Gronquist has the ability to ask the court 9 for 10 leave to receive and possess grievances that contain other offender’s names and numbers. 11 As to the third Turner factor (the impact accommodating the 12 constitutional right will have on guards, other inmates, and prison 13 resources), Unauthorized Mail potentially poses a safety risk to the 14 facility staff and other inmates. If Unauthorized Mail is not considered 15 contraband and the mail is permitted to be received and possessed by 16 inmates, the prison will need to retain additional staff and officers 17 to ensure that the information contained in the mail is not used in a 18 way that is dangerous or harmful to staff and other inmates. 19 As to the final Turner factor, there are no obvious, easy 20 alternatives to the mail policy. As the Supreme Court and Washington 21 Supreme Court have both recognized, managing and operating a prison 22 facility safely is not an easy task. Restricting the access of the 23 materials and information listed as “Unauthorized Mail” eases DOC’s 24 difficult management task. The Court must defer to DOC to make this 25 assessment. 26 ORDER - 40 1 After weighing the Turner factors, the Court denies Mr. Gronquist’s 2 facial challenge to RCW 72.09.530, RCW 72.09.015(5), and the DOC mail 3 policy. See Wolff v. McDonnell, 418 U.S. 539, 575-76 (1974) (permitting 4 prison review procedure whereby officers are present when legal mail is 5 opened to ensure there is no contraband). These statutes and the mail 6 policy are not facially overbroad or an unconstitutional prior restraint 7 – they are not applied in a substantial number of unconstitutional 8 manners, there are circumstances under which the statutes and mail 9 policy are valid, and the statutes and mail policy serve a legitimate 10 penological interest. Prison administration is a complicated task. 11 Although prisoners retain their constitutional right to receive mail, 12 this 13 appropriately maintain order. This is legitimately done by restricting 14 an inmate’s receipt of documents pertaining to other offenders without 15 prior 16 granted summary judgment as to Mr. Gronquist’s facial overbreadth and 17 prior-restraint challenges. constitutional superintendent right is approval limited or court by the prison’s permission. need Defendants to are 18 Because Turner and its progeny and the above-listed Washington 19 jurisprudence provide the Court with sufficient guidance to resolve Mr. 20 Gronquist’s facial challenges, the Court declines to certify his first, 21 second, and fifth proposed questions. Mr. Gronquist’s motion to certify 22 is denied in this regard. b. 23 24 In 42 U.S.C. § 1983 addition to his Mr. overbreadth Gronquist and asserts prior an restraint 25 constitutional 26 constitutional challenge pursuant to 42 U.S.C. § 1983, alleging that ORDER - 41 challenges, facial as-applied 1 Defendants violated his free-speech rights under the First Amendment 2 and article I, section 5 of the Washington State Constitution by 3 rejecting the majority of his public records because they contained 4 another offender’s information or were altered. 5 As set forth above, the Court finds the mail policy serves DOC’s 6 legitimate interest in ensuring the safety of other inmates and the 7 staff at DOC. Mr. Gronquist could have sought advance permission from 8 the superintendent to possess the grievances against Officer Cunningham 9 brought by other inmates; he did not do so. DOC does not argue that Mr. 10 Gronquist has appropriately used the information contained in grievances 11 and other records. Regardless, the Court finds that DOC did not violate 12 Mr. Gronquist’s free-speech rights by rejecting both the unredacted and 13 redacted public-records documents. Each of his appeals were considered. 14 And although each appeal was denied, the Court finds that the decisions 15 to uphold the rejection of the mailed records were based on a legitimate, 16 penological interest of maintaining prison security. 17 For these reasons, Defendants are granted summary judgment on Mr. 18 Gronquist’s 19 unconstitutional prior restraint on speech. c. 20 21 third claim, brought under 42 U.S.C. § 1983, for Vagueness Challenge Mr. Gronquist also claims that his due-process rights under the 22 Fourteenth Amendment 23 section 3 were violated because RCW 72.09.530 and RCW 72.09.015(5) are 24 unconstitutionally 25 argument, Mr. Gronquist cites to Kolender v. Lawson, 461 U.S. 352, 357 26 (1983). Kolender ORDER - 42 and vague. however Washington In State support recognizes of that Constitution his the article I, void-for-vagueness void-for-vagueness 1 doctrine is used to challenge a penal sanction: “the void for vagueness 2 doctrine requires that a penal statute define the criminal offense with 3 sufficient definiteness that ordinary people can understand what conduct 4 is prohibited and in a manner that does not encourage arbitrary and 5 discriminatory enforcement.” Id. at 356. The Second Circuit applied the 6 void-for-vagueness doctrine to a prison disciplinary rule when the 7 inmate was charged with an anti-contraband rule. Farid v. Ellen, 593 8 F.3d 1233 (2d Cir. 2010 (analyzing whether a prison rule, which the 9 plaintiff was charged with violating, was unconstitutionally vague). 10 Mr. Gronquist was not charged or infracted in regard to the 11 rejected public records. Instead, he was merely prevented from having 12 them while at the prison. The void-for-vagueness doctrine does not apply 13 to this situation. Defendants’ summary-judgment motion is granted in 14 this 15 vagueness claim to the Washington Supreme Court is denied. regard. And Mr. Gronquist’s motion to certify his void-for- 16 3. 17 Defendants ask the Court to find that Mr. Gronquist failed to 18 present evidence to support his retaliation claim under 42 U.S.C. § 19 1983. As an inmate pursuing a First-Amendment-based retaliation claim, 20 Mr. Gronquist must establish: 1) that he was subjected to adverse 21 action, 2) because of 3) his protected conduct and 4) Defendants’ action 22 chilled his exercise of his First Amendment rights, and 5) Defendants’ 23 action did not reasonably advance a legitimate correctional goal. See 24 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004). To prove the 25 “because of” prong, Mr. Gronquist must establish that his protected 26 conduct played a “substantial part” in Defendants’ decision to engage ORDER - 43 Claim 4: Retaliation 1 in adverse action. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. 2 Doyle, 429 U.S. 274, 285 (1977). 3 Mr. Gronquist submitted sufficient evidence that he engaged in a 4 protected activity, i.e., he filed grievances regarding the lack of 5 toilet paper and Officer Cunningham’s and Owens’ loud, “lengthy tirade” 6 headcount warnings over the intercom system. However, Mr. Gronquist did 7 not clearly identify the adverse action taken against him by Officers 8 Cunningham and Owens following the filing of these grievances and later 9 grievances. 10 The Court’s review of the record elicits that Mr. Gronquist claims 11 that Officer Cunningham called him a “fucking rat” in front of other 12 inmates and was verbally rude to him, and that in October 2015, he was 13 demoted from a two-man cell in the H-Unit to a four-man cell in I-Unit. 14 Although verbally abusive language is unacceptable behavior from a 15 corrections officer, whose purpose is to maintain order by modelling 16 appropriate behavior, this level of verbal harassment and abuse is not 17 sufficient by itself to constitute adverse action. See Oltarzewski v. 18 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (citing Collins v. Cundy, 19 603 F.2d 825, 827 (10th Cir. 1979) (finding that sheriff’s vulgar threat 20 to hang the inmate and laughing at him was not sufficient adverse 21 action)). And Mr. Gronquist fails to show that his transfer to a 22 different cell more than a year after he filed the initial grievances 23 was in retaliation for these grievances. See Villiarimo v. Aloha Island 24 Air, Inc., 281 F.3d 1054 (9th Cir. 2002) (finding that a nearly 18- 25 month lapse between the protected activity and the adverse action was 26 too remote by itself to give rise to an inference of causation). Further, ORDER - 44 1 there is no evidence that Officers Cunningham and Owens were responsible 2 for this housing change. See Pratt v. Rowland, 65 F.3d 802, 807 (9th 3 Cir. 1995) (looking at whether the individuals responsible for a cell 4 reassignment were the same individuals as who engaged in the alleged 5 retaliatory conduct). 6 Mr. Gronquist also provided declarations from other inmates who 7 stated that Officer Cunningham commented that he was issuing 8 disciplinary infractions in relation to headcounts because “people are 9 complaining about how we are doing our counts” and therefore “everyone 10 is going to pay.” See Muldrow Dec., ECF No. 88 at 2. There is no evidence 11 submitted, however, that Officer Cunningham or Officer Owens advised 12 the other inmates that it was Mr. Gronquist who had complained about 13 the headcounts. Cf. Valandingham v. Bojorquez, 866 F.2d 1135, 1137-40 14 (9th Cir. 1998) (identifying that the prison officers told other inmates 15 that the plaintiff was a snitch). And even if there was a casual 16 retaliatory connection between Mr. Gronquist’s protected activities and 17 the officers’ issuance of infractions against the other inmates, this 18 was not adverse action taken against Mr. Gronquist. 19 Therefore, even if Officer Cunningham’s and Officer Owen’s conduct 20 would chill or silence a person of ordinary firmness from future First 21 Amendment activities, Mr. Gronquist’s retaliation claim fails to survive 22 summary judgment because he failed to present evidence that he was 23 subjected to an adverse action by Defendants because of his protected 24 activity. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) 25 (setting forth standard). 26 Cunningham and Owens summary judgment as to Mr. Gronquist’s retaliation ORDER - 45 For this reason, the Court grants Officers 1 claim. Further, the Court grants Defendants Penrose, George, Hicks, 2 Uttecht, and Warner summary judgment on this retaliation claim as well 3 because 4 participated in any retaliatory action against, or decision making as 5 to, Mr. Gronquist because he filed grievances. Because summary judgment 6 is granted in these Defendants’ favor, the Court need not analyze 7 Defendants’ request for qualified immunity. there is no evidence that these Defendants personally 8 Lastly, the Court grants Superintendent Uttecht summary judgment 9 as to Mr. Gronquist’s claim that Superintendent Uttecht fostered a 10 policy or custom that permitted Officer Cunningham to retaliate against 11 inmates who file grievances at CRCC and improperly appointed Lt. Penrose 12 to investigate the grievance — a grievance which named Lt. Penrose as 13 one of the retaliating officials. An unconstitutional policy or custom 14 may be found either 1) in an affirmative proclamation of policy or 2) 15 in the official’s failure to take remedial steps after violations. Gomez 16 v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001). Mr. Gronquist has not 17 identified an affirmative proclamation of policy. And there is no 18 indication that Superintendent Uttecht was responsible for appointing 19 Lt. Penrose as the individual who would investigate Mr. Gronquist’s 20 retaliation-based grievance—a grievance that named Lt. Penrose as well. 21 Rather, Mike McCourtie assigned Lt. Penrose as the investigator. And 22 the records reflect that Lt. Penrose interviewed relevant staff, Mr. 23 Gronquist, and other offenders when appropriate. Mr. Gronquist was able 24 to appeal this decision, and he did so. These records do not reflect a 25 custom of turning a blind-eye to complaints. 26 ORDER - 46 Mr. 1 Gronquist also contends that Superintendent Uttecht also 2 fostered a policy that permitted Officer Cunningham to retaliate against 3 Mr. Gronquist and other individuals for filing grievances. However, as 4 stated above, there is insufficient evidence to survive summary judgment 5 that Officer Cunningham retaliated against Mr. Gronquist, or other 6 individuals, 7 insufficient evidence that Superintendent Uttecht has turned a blind 8 eye to wrongdoings by officers and staff at CRCC. for filing grievances. Mr. Gronquist has submitted For these reasons, Defendants are granted summary judgment as to 9 10 retaliation: Claim 4. 11 D. Conclusion 12 For the above-given reasons, IT IS HEREBY ORDERED: 13 1. Defendants’ Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56, ECF No. 17, is GRANTED. 14 15 2. Mr. Gronquist’s Motion to Certify, ECF No. 74, is DENIED. 16 3. Mr. Gronquist’s Motion to Show Cause, ECF No. 84, is DENIED. 17 4. The Clerk’s Office is to enter judgment in Defendants’ favor with prejudice. 18 19 5. All pending dates and deadlines are STRICKEN. 20 6. This file shall be CLOSED. 21 IT IS SO ORDERED. 22 23 The Clerk’s Office is directed to enter this Order and provide copies to Mr. Gronquist and counsel. DATED this 20th day of May 2016. 24 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 25 26 Q:\EFS\Civil\2015\5008.msj.lc1.docx ORDER - 47
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