Opinion
2:18-cv-00815-YY
03-22-2022
CLARENCE EUGENE JONES, Plaintiff, v. M. ROJAS, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge.
FINDINGS
Pro se plaintiff Clarence Jones brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his First and Fourteenth Amendment rights stemming from his incarceration at the Snake River Correctional Institution (“SRCI”). See Am. Compl. 31, ECF 151. Plaintiff asserts claims for retaliation, violation of his right to access the courts, and due process. Id. He seeks nominal, compensatory, and punitive damages and declaratory and injunctive relief. Id. at 31-32. The court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 as it raises questions of federal law.
Plaintiff has since been released from custody.
Plaintiff also argues the merits of an equal protection claim, but the court denied his motion for leave to amend the complaint with such a claim. See Findings and Recommendations 6, ECF 181, adopted by Order, ECF 185.
Defendants have filed a motion for summary judgment (ECF 186) pursuant to Federal Rule of Civil Procedure 56. Plaintiff concedes that § 1983 liability does not attach to defendants Heidi Mackenzie, Bill Doman, and Mark Nooth because they did not personally participate in any alleged misconduct and agrees they should be dismissed from this case. See Resp. 10, ECF 207. The remaining defendants are SRCI law librarian Maricela Rojas, Lieutenant Mark Paynter, Lieutenant Shane Houston, Officer George Fuentes, Supervisor Donald Whitley, Former Superintendent Brad Cain, and a legal assistant, Andre Johnson. For the reasons below, defendants' motion should be DENIED as to the retaliation claim for money damages regarding the August 22, 2017 conduct order but otherwise GRANTED.
Plaintiff's response brief is mispaginated (pages 11 and 12 are both numbered page 11). In citing to the response, these findings and recommendations correct for this mistake.
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings' and designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing FED. R. CIV. P. 56(e)).
The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047,1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130,1134 (9th Cir. 2014).
II. Discussion
The Civil Rights Act, 42 U.S.C § 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (simplified). Section 1983 liability “arises only upon a showing of personal participation by the defendant,” acting under color of state law, that deprived the plaintiff of a constitutional or federal statutory right. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Plaintiff asserts claims for retaliation under the First Amendment, violation of his right to access the courts under the First and Fourteenth Amendments, and due process under the Fourteenth Amendment. Defendants argue (1) plaintiff cannot establish that any defendants infringed his constitutional rights, (2) the allegations against Whitley and Cain are insufficient for § 1983 liability to attach, (3) defendants are entitled to qualified immunity from damages, and (4) plaintiff is not entitled to declaratory or injunctive relief. Mot. Summ. J. 9, 15, 16, ECF 186. Only the arguments necessary to resolve defendants' motion are addressed.
A. First Amendment
“A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)) (alteration omitted). “The First Amendment guarantees a prisoner a right to seek redress of grievances from prison authorities and as well as a right of meaningful access to the courts.” Id.
1. Retaliation
“Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). “Section 1983 provides a cause of action for prison inmates whose constitutionally protected activity has resulted in retaliatory action by prison officials.” Jones, 791 F.2d at 1035; see also Shepard v. Quillen, 840 F.3d 686, 688 (9th Cir. 2016) (recognizing that “a corrections officer may not retaliate against a prisoner for exercising his First Amendment right to report staff misconduct”).
There are five elements for a First Amendment retaliation claim in the prison context:
(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.Jones, 791 F.3d at 1035 (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)).
It is the plaintiff's burden to prove the absence of a legitimate correctional goal. Pratt v. Rowland, 65 F.3d 802, 806-07 (9th Cir. 1995). “[F]ederal courts ought to afford appropriate deference and flexibility to prison officials” when evaluating proffered legitimate goals. Id.; Banks v. Oregon, No. 2:12-cv-01651-MC, 2014 WL 1946552, *3 (D. Or. May 12, 2014) (“the nature of a retaliation claim requires that it be ‘regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions'”) (quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994)). However, “prison officials may not defeat a retaliation claim on summary judgment simply by articulating a general justification for a neutral process, when there is a genuine issue of material fact as to whether the action was taken in retaliation for the exercise of a constitutional right.” Shepard, 840 F.3d at 692 (quoting Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)).
Here, plaintiff claims he was retaliated against when Rojas filed a misconduct report, when Fuentes issued a conduct order, and when Rojas refused to make a copy of a discovery request. Am. Compl. 31, ECF 151. Defendants only challenge the fifth element of plaintiff's retaliation claims and argue plaintiff has not met his burden of establishing that defendants' actions did not reasonably advance legitimate correctional goals. Mot. Sum. J. 13, ECF 186.
a. Rojas-Misconduct Report
On August 10, 2017, plaintiff sent law librarian Rojas an inmate communication form (“kyte”) stating, among other things, “it can turn out bad for you!” Paynter Decl., Ex. 2, at 5, ECF 188 (kyte). Rojas issued a misconduct report alleging a violation of Rule 2.10, Disrespect I, which prohibits an adult in custody (“AIC”) from making “a physical threat” to another person. Paynter Decl., Ex. 2, at 4, ECF 188 (misconduct report); see O.A.R. 291-105-0015(2)(f) (2012). Plaintiff attests that defendants Lt. Houston and former Superintendent Cain reviewed and signed off on the misconduct report. See Am. Compl. 3-5, ECF 151. The officer in charge, Lt. Paynter, put plaintiff in the disciplinary segregation unit pending a disciplinary hearing. Paynter Decl. ¶ 12, ECF 188. Seven days later, a hearings officer found plaintiff was merely threatening a lawsuit and dismissed the Disrespect I charge. Id., Ex. 2, at 1 (disciplinary hearing order). Plaintiff was thereafter released from disciplinary segregation. Id. ¶ 15.
Plaintiff has filed a verified complaint, which “may be used as an opposing affidavit under Rule 56.” Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995).
What plaintiff wrote in his kyte to Rojas is undisputed. Even construing this evidence in plaintiff's favor, it was not unreasonable for Rojas to interpret “it can turn out bad for you” as a physical threat, even though the hearings officer later found plaintiff was merely threatening a lawsuit. Id., Ex. 2, at 1, 5. Rojas' filing of the misconduct report reasonably advanced the goal of institutional security. The retaliation claim regarding the misconduct report thus fails as a matter of law. Because this claim fails against Rojas, it is unnecessary to decide whether § 1983 liability attaches to other defendants.
b. Officer Fuentes-Conduct Order
Plaintiff alleges that Officer Fuentes retaliated against him by issuing a conduct order and imposing an eight-hour cell-in. See Am. Compl. 9-13, ECF 151; Resp. 23-34, ECF 207. Plaintiff claims that on the morning of August 22, 2017, he was walking past Lt. Paynter, who was talking with Officer Fuentes and Officer Frietag, when plaintiff heard Lt. Paynter remark, “If the tendon is torn, it can't be fixed.” Am. Compl. ¶ 27, ECF 151. Plaintiff claims he audibly said to himself, “Humm,” when Lt. Paynter looked directly at him and said, “Fuck off!” to which plaintiff replied, “Excuse me!” Id. Plaintiff claims that, “Lt. Paynter in trying to recover for his indiscretion, rudeness and blatant disrespect toward plaintiff turn[ed] back to plaintiff and said, ‘I'm having a conversation over here[,] go on,' and would not own up that he was saying to plaintiff, ‘Fuck off.'” Id.
Plaintiff had breakfast and then, upon leaving the dining hall, went to get the names of Officers Fuentes and Officer Frietag “as persons to be questioned as to defendant Lt. Paynter's indiscretion toward plaintiff.” Id. ¶ 28. He told Officer Fuentas, “Lt. Paynter was talking to me when he said, ‘fuck off,' and tried covering he was talking to you guys and is why I am getting your names as witnesses.” Id. ¶ 30. Then, plaintiff claims, Lt. Paynter “walked over and attempted to interject himself into the conversation,” but “plaintiff cut Lt. Paynter short” and said, “I am a constitutionalist. It applies out in society and in here in prison, and a man will stand on truth that he said what he was saying, and we all know you was saying to me, ‘fuck off,' and especially in front of lower ranking staff when I never said so much as said anything to you in my life.” Id. ¶ 31. Plaintiff claims that Lt. Paynter responded, “You get your ass out of here.” Id.
Later that day, after lunch, Officer Fuentes confronted plaintiff outside the dining hall and accused plaintiff of taking 10 minutes longer to eat lunch than the 25 minutes alotted for meals. Id. ¶ 33. Officer Fuentes issued a conduct order based on plaintiff taking a 35-minute lunch and also for taking a 28-minute breakfast earlier. Am. Compl., Ex. C, ECF 151. Officer Fuentes attests that he issued the conduct order after plaintiff exceeded the 25-minute time limit at lunch because he had previously given plaintiff a verbal warning when he went over the time limit at breakfast. Fuentes Decl. ¶¶ 17-18, ECF 187.
Under the rules in effect at the time, a conduct order was “[a]n Oregon Department of Corrections form” that allowed the institution to restrict “an inmate's privileges” for committing a rule violation “for no more than 72 hours” without the need for a misconduct report and disciplinary hearing. Fuentes Decl., Ex. 1, at 2, ECF 187. A conduct order advises “the AIC of the date and time of his rule violation, a description of the violation, and the sanction he has received.” Fuentes Decl. ¶ 11, ECF 187. Sanctions may include a cell-in, i.e., the AIC is restricted from all leisure time activities such as coming out for day room, watching TV, or going to the yard; however, the AIC may shower and attend meals, work, program assignments, religious services, and medical appointments. Id. ¶ 12. The purpose of a cell-in is behavior modification. Id. ¶ 13.
A conduct order is defined in substantially the same way today. See O.A.R. 291-105-010(1)(5) (“An Oregon Department of Corrections form that allows for various interventions to affect positive behavioral change, and without the need for a disciplinary hearing, in accordance with O.A.R 291-105-0021(1). Restriction of an AIC's privileges through a conduct order can be for no more than 72 hours.”).
Again, in their motion for summary judgment, defendants limit their argument to the last element of a retaliation claim: whether the action reasonably advanced a legitimate correctional goal. Defendants contend that “[t]he conduct order served a legitimate penological purpose” of “order and efficiency in the chow hall.” Mot. Summ. J. 13, ECF 186. Limiting mealtime keeps the number of AICs present to manageable numbers, thus ensuring staff safety and preventing security issues that could arise with overcrowding-such as fights or the passing of contraband. Fuentes Decl. ¶ 20, ECF 187. The Ninth Circuit has held that “preserving institutional order, discipline, and security are legitimate penological goals.” Barnett, 31 F.3d at 816. Defendants assert the 8-hour cell-in imposed in this case advanced the goals of order and efficiency in the chow hall by discouraging plaintiff from violating the time limit in the future. See Fuentes Decl. ¶ 13 (“the purpose of a cell-in is behavior modification”).
Defendants do not contend, for instance, that plaintiff was not engaged in protected speech. “[V]erbal statements made by an inmate . . . that indicate an intent to file a formal written grievance, are protected by the First Amendment.” Garcia v. Strayhorn, No. 13-CV-807-BEN KSC, 2014 WL 4385410, at *6 (S.D. Cal. Sept. 3, 2014); Davies v. Heick, No. CV 20-00173 LEK-RT, 2020 WL 2308641, at *5 (D. Haw. May 8, 2020) (“Protected speech also includes an inmate's statement of intent to pursue an administrative grievance.”). Here, plaintiff told the officers that he was collecting the names of witnesses; arguably, this indicated he was intending to file a written grievance pursuant to O.A.R. 291-109-0210(3)(b), which allows AICs to file grievances for the “[u]nprofessional actions of employees . . . of the Department of Corrections.” “Inmates must be able to complain about staff; doing so provides a crucial check against those who are in a position to abuse them.” Shepard, 840 F.3d at 692-93.
However, plaintiff “has raised triable issues of fact as to Defendants' retaliatory motives . . . and a reasonable jury could conclude that Defendants' proffered correctional goals . . . are pretextual.” Garcia v. Smith, 666 Fed.Appx. 581, 584 (9th Cir. 2016) (cited pursuant to 9th Cir. Rule 36-3). Plaintiff contends that Officer Fuentes reported false information in retaliation for plaintiff “exercising his freedom of speech and expression regarding . . . Lt. Paynter's insolent behavior towards plaintiff, and placing chilling effect upon plaintiff exercise of his right to freedom of speech and expression and redress of grievance.” Am. Compl. ¶ 34, ECF 151. He denies that he exceeded the 25-minute time limit for either meal, or that Fuentes gave him a warning at breakfast. Id. ¶ 32.
Plaintiff further notes that Officer Fuentes issued the conduct order shortly after plaintiff indicated to him that he and another officer were witnesses to the incident involving Lt. Paynter. Retaliatory motive may be shown by “proximity in time between protected speech and the alleged retaliation.” Shepard, 840 F.3d at 690; Watison, 668 F.3d at 1114 (observing that “a chronology of events from which retaliation can be inferred is sufficient to survive dismissal”). “[T]here generally must be something more than simply timing to support an inference of retaliatory intent.... In other words, retaliation is not established simply by showing adverse activity by the defendant after protected speech; the plaintiff must show a nexus between the two.” Goodrick v. Field, No. 1:19-CV-00088-BLW, 2022 WL 656891, at *3 (D. Idaho Mar. 4, 2022) (citing, among other cases, Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (stating that a retaliation claim cannot rest on “the logical fallacy of post hoc, ergo propter hoc, literally, ‘after this, therefore because of this'”). Plaintiff has provided evidence of such a nexus here. Plaintiff attests that he confronted Lt. Paynter about his remarks in front of Officer Fuentes and identified Officer Fuentes as a witness, and later that day, Officer Fuentes gave plaintiff a sanction.
Defendants do not address plaintiffs' version of the facts, which must be accepted as true for the purpose of this motion. Cf. Austin v. Terhune, 367 F.3d 1167, 1169 n.1 (9th Cir. 2004) (applying Rule 56 standard in the context of an inmate's first amendment retaliation claim premised on correctional officer's false disciplinary report). Efficiency and order in the chow hall are only legitimate penological goals if the basis for Officer Fuentes' conduct order is true and a jury rejects plaintiff's claim that Officer Fuentes' acted with a retaliatory motive. See Bruce, 351 F.3d at 1289 (“[I]f . . . the defendants abused the gang validation procedure as a cover or a ruse to silence and punish [the prisoner] because he filed grievances, they cannot assert that [his] validation served a valid penological purpose, even though he may have arguably ended up where he belonged.”). In sum, defendants cannot defeat plaintiff's retaliation claim on summary judgment by simply articulating the correctional goal of maintaining “order and efficiency in the chow hall” when there is a genuine issue of material fact as to whether the action was taken in retaliation for the exercise of a constitutional right. Shepard, 840 F.3d at 692.
Defendants do not argue that plaintiff failed to exhaust his administrative remedies, although they raised it as an affirmative defense. See Answer Am. Compl., ECF 59. “[A] prisoner is excused from the exhaustion requirement in circumstances where administrative remedies are effectively unavailable, including circumstances in which a prisoner has reason to fear retaliation for reporting an incident.” Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 792 (9th Cir. 2018). Arguably, administrative remedies were not “effectively unavailable” to this plaintiff. Even by his own account, plaintiff “cut Lt. Paynter short” and confronted him about his “indiscretion” and “rudeness.” Moreover, plaintiff has filed more than 20 cases with this court, many of which involve the numerous grievances he has filed while incarcerated. In fact, around the same time as the incident involving Officer Fuentes, plaintiff filed grievances related to the other matters that are the subject of litigation in this case. See Am. Compl., ECF 151, at 41, 60, 89, 110. Plaintiff is also well-versed in the law regarding retaliation, having previously prevailed on a retaliation case before the Ninth Circuit. See, supra, Jones, 791 F.3d 1023. That being said, these facts would not affect the fourth element of a retaliation claim- whether the conduct had a chilling affect. The law requires that defendants' conduct “would chill or silence a person of ordinary firmness from future First Amendment activities,” not that it in fact chilled plaintiff, considering his history of filing numerous grievances and law suits. Rhodes, 408 F.3d at 568-69 (citation and internal quotation marks omitted).
Fuentes is not entitled to qualified immunity. A defendant is “entitled to qualified immunity if (1) the alleged conduct did not violate a constitutional right or (2) that right was not clearly established at the time of the alleged violation.” Melnik v. Dzurenda, 14 F.4th 981, 985 (9th Cir. 2021). “[T]he prohibition against retaliatory punishment is ‘clearly established law' in the Ninth Circuit, for qualified immunity purposes.” Pratt, 65 F.3d at 806 & n.4; Shepard, 840 F.3d at 694 (noting it has been clearly established since 2003 that “prison officials may not defeat a retaliation claim . . . simply by articulating a general justification for a neutral process, when there is a genuine issue of material fact as to whether the action was taken in retaliation for the exercise of a constitutional right”).
Plaintiff also alleges that Whitley, who is Fuentes' supervisor, “was present and observed the occurrences with Paynter and Fuentes.” Am. Compl. ¶ 35, ECF 151. But defendants are correct that Whitley was not sufficiently involved for § 1983 liability to attach. A supervisor may be liable under Section 1983 only upon a showing of either (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). “[A] plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury.” Id. The requisite causal connection can be established, for example, by knowingly refusing to terminate a series of acts by others or by acquiescing to the constitutional deprivation. Id. at 1207-08. Plaintiff does not assert either that Whitley knew plaintiff did not violate the meal time limit at breakfast or lunch or that Fuentes lied about plaintiff violating the time limits. Without such evidence, plaintiff cannot establish either form of supervisor liability.
Finally, plaintiff's demands for equitable relief fail. Plaintiff's demand for declaratory relief lacks merit to the extent he seeks an opinion that he was wrongly harmed-declaratory relief must target prospective conduct. See Oildale Mut. Water Co. v. Crop Prod. Servs., Inc., No. 1:13-CV-2054 AWI JLT, 2014 WL 824958, at *3 (E.D. Cal. Mar. 3, 2014) (recognizing that “declaratory relief operates prospectively to declare future rights, rather than to redress past wrongs”). Moreover, such a claim is superfluous to the extent it is intertwined with plaintiff's requests for legal relief. See Colasanti v. City of Portland, No. 3:19-CV-00443-YY, 2021 WL 4317286, at *14 (D. Or. Aug. 19, 2021), report and recommendation adopted, 2021 WL 4317667 (D. Or. Sept. 20, 2021) (collecting cases). And plaintiff is not entitled to injunctive relief because he has been released from custody. O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects.”).
c. Rojas-Photocopy Request
Plaintiff alleges that on February 27, 2019, he showed Rojas copies of two requests for admissions that he was going to send in his own envelope, and:
Defendant Rojas told plaintiff that plaintiff had to give her the pre-paid institution issued envelope even though plaintiff did not fill out a legal envelope request form, . . . or a CD28[], Request for withdrawal of funds, . . . or she was not going to make plaintiff an “indigent” copy of the motion for admission.Am. Compl. ¶ 79, ECF 151; see also id. at 28-30; Resp. 9, ECF 207. Thus, plaintiff contends that Rojas conditioned making the copies on presentation of a pre-paid envelope. Her response to plaintiff was in line with the applicable Oregon Administrative Rule, which provides, “Notary services, photocopying, and mailing services for legal work may be requested in accordance with these rules using the standard request forms. Mail and photocopy requests must be accompanied by a Request for Withdrawal of Funds (CD28).” O.A.R. 291-139-0140(5). Accordingly, this claim fails because plaintiff has not met his burden of showing that Rojas' actions did not further a legitimate correctional goal.
2. Access to Courts
An inmate has a constitutionally protected right of meaningful access to the courts under the First and Fourteenth Amendments. Bounds v. Smith, 430 U.S. 817, 828 (1977), abrogated in part on other grounds by Lewis v. Casey, 518 U.S. 343 (1996). However, that right is not “an abstract, freestanding right to a law library or legal assistance.” Lewis, 518 U.S. at 351. “In other words, prison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Id. (citation omitted). Thus, “an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense.” Id. Instead, an inmate must demonstrate that “the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.” Id.
In Hebbe v. Pliler, for example, an inmate alleged he was denied access to the prison law library while the facility was on lockdown and the denial prevented him from filing a brief in support of the appeal of his state court conviction. 627 F.3d 338, 342 (9th Cir. 2010). The Ninth Circuit found the inmate plausibly alleged an actual injury when he alleged facts showing “he was frustrated in his desire to use the law library facilities to research the pro se brief that he wished to file on direct appeal of his state court conviction.” Id. at 343. In Phillips v. Hust, by contrast, the Ninth Circuit found a law librarian was entitled to qualified immunity when she denied an inmate access to a comb-binding machine, which he argued was necessary to comply with Supreme Court rules governing the filing of petitions. 588 F.3d 652, 658 (9th Cir. 2009).
The Ninth Circuit observed the Supreme Court's filing requirements mandated leniency for Pro se litigants, and concluded it was objectively legally reasonable for the law librarian to conclude that her denial of access to the comb-binding machine would not hinder the inmate's ability to file his petition. Id. at 658.
Here, plaintiff asserts he was denied access to courts in violation of the First and Fourteenth Amendments when (1) Rojas failed to stamp a February 2019 discovery request as “Priority Legal,” (2) Rojas refused to make a copy of two requests for admissions without a prepaid envelope, (3) defendants refused to provide him with pre-numbered pleading paper or plain white paper, and (4) Rojas once asked plaintiff to leave the library for passing a note.
The facts regarding each incident are outlined separately and then analyzed together:
a. “Priority Mail” Stamp and Returned Mail
The parties agree plaintiff mailed a discovery request in early February 2019 that was returned as undeliverable. See Rochester Decl. ¶ 16, ECF 189; Resp. 8, ECF 207. Plaintiff represents the letter was returned because Rojas intentionally failed to add a “Priority Legal” stamp to it. Resp. 8, ECF 207; see Am. Compl. 27-29, ECF 151. Defendants place the fault with plaintiff and declare it was “up to him to decide how [] to address and mark” the letter. Rochester Decl. ¶ 21, ECF 189.
b. Copy of Discovery Requests
As noted above, plaintiff asked Rojas to make copies of two requests for admissions. Rojas conditioned making the copies on presentation of a pre-paid envelope, which plaintiff refused to provide. Plaintiff claims he was entitled to have copies made without providing Rojas with a pre-paid, addressed envelope. See Resp. 9, ECF 207; Am. Compl. 28-30, ECF 151.
c. Pleading Paper
Plaintiff claims defendants refused to provide him with pre-numbered pleading paper or plain white paper and that other AICs were supplied with such paper. Resp. 10, ECF 207; see Am. Compl. 15-25, ECF 151. Defendants counter that they provide supplies to indigent AICs as required by O.A.R. 291-139-0180. Since September 1, 2017, SRCI no longer provides AICs with pre-numbered pleading paper “unless an AIC can demonstrate that a court rule requires” it. Rochester Decl. ¶¶ 8-10, ECF 189.
d. Ejection from Law Library
The parties agree that Rojas asked the plaintiff to leave the law library on November 9, 2017, after an assistant saw him talking with another AIC and passing a note to him. See Rochester Decl. ¶ 14, ECF 189; Resp. 8, ECF 207. Plaintiff claims he did not know passing notes was prohibited. Am. Compl. ¶ 36, ECF 151.
e. Analysis
Absent from any of plaintiff's evidence or argument is any indication of actual injury.Unlike in Hebbe, where the inmate was prevented from filing a brief in support of the appeal of his state court conviction, plaintiff does not allege or offer facts that any of his four issues with the law library hindered his efforts to pursue a legal claim. See 627 F.3d at 342; Lewis, 518 U.S. at 351. And the time for amending his claims has passed. Therefore, defendants are entitled to summary judgment on these claims.
The record of plaintiff's law library usage from January 2017 through July 2018 spans 650 pages, demonstrating plaintiff was a prolific user of law library services during the relevant period. Rochester Decl., Ex. 4, ECF 189.
B. Due Process Under the Fourteenth Amendment
Plaintiff makes several references to Due Process and the Fourteenth Amendment when discussing his retaliation and access-to-courts claims. Resp. 3, 20, 23, 37, ECF 207. Those claims are fully addressed above and require no further discussion. See Hebbe, 627 F.3d at 342 (noting that the right of access to the courts is also grounded in the Due Process Clause of the Fourteenth Amendment).
However, plaintiff also invokes Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002), and Burnsworth v. Gunderson, 179 F.3d 771 (9th Cir. 1999), Resp. 23, ECF 207, which concern a type of procedural due process claim that does not require a protected liberty or property interest to be at stake. See Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993) (stating elements of a procedural due process claim). Such a claim is viable when the disciplinary conviction is “totally unsupported by evidence.” Burnsworth, 179 F.3d at 775 (emphasis added); see also Nonnette, 316 F.3d at 878-79 (requiring adverse finding at disciplinary hearing to be “supported by no evidence”). Here, it is undisputed that plaintiff prevailed at his disciplinary hearing. See Paynter Decl., Ex. 2, at 1, ECF 188. There is no disciplinary conviction or adverse finding that resulted in discipline; rather, the hearings officer found plaintiff threatened a lawsuit (as opposed to a physical threat) and dismissed the Disrespect I charge. Id. Moreover, to the extent plaintiff would assert a Burnsworth due process claim concerning the conduct order, Fuentes' testimony supports the conduct order.
Finally, to the extent plaintiff also asserts a generic procedural due process claim, defendants are correct that plaintiff has not identified an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Inmates possess a protected liberty interest when facing disciplinary segregation if the “conditions of confinement impose an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'” Brown v. Oregon Dep't of Corr., 751 F.3d 983, 987 (9th Cir. 2014) (quoting Sandin, 515 U.S. at 484). In Sandin, the Supreme Court found that 30 days in disciplinary segregation did not work a major disruption in the prisoner's environment and, therefore, did not implicate a protected liberty interest. 515 U.S. at 486. The Ninth Circuit has found such a disruption with much longer placements in segregation. E.g., Melnik, 14 F.4th at 984 (36 months); Brown v. Or. Dep't of Corr., 751 F.3d 983, 987 (9th Cir. 2014) (27 months without meaningful review). Neither plaintiff's seven-day placement in disciplinary segregation nor the eight hours spent in his cell without leisure activities are atypical or significant hardships in relation to the ordinary incidents of prison life.
Although “there is no bright-line rule as to the duration of disciplinary segregation that invokes a liberty interest,” Smith v. Powell, No. 2:14-CV-01725-SB, 2016 WL 11384325, at *5 (D. Or. Jan. 25, 2016), report and recommendation adopted, 2016 WL 1183086 (D. Or. Mar. 28, 2016), aff'd, 693 Fed.Appx. 610 (9th Cir. 2017), courts in this district have found that placements lasting from 120 to 180 day are not enough, without more, to implicate a protected liberty interest. E.g., id. (120 days); White v. Taylor, No. 2:17-CV-00981-AC, 2020 WL 3964996, at *6 (D. Or. July 13, 2020), appeal dismissed, No. 20-35628, 2021 WL 3025619 (9th Cir. Jan. 20, 2021) (180' days); Chavez v. Peters, No. 2:16-CV-02225-MO, 2019 WL 922237, at *1 (D. Or. Feb. 25, 2019) (120 days).
Plaintiff's due process claim fails as a matter of law.
RECOMMENDATIONS
Defendants' motion for summary judgment (ECF 186) should be DENIED as to the retaliation claim for money damages regarding the August 22, 2017 conduct order but otherwise GRANTED.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, April 12, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.