Opinion
3:20-CV-5472-TL-DWC
04-26-2022
VICTOR JULIAN TURNER, Plaintiff, v. TORI RALKEY, et al., Defendants.
Noting Dated: May 13, 2022.
REPORT AND RECOMMENDATION
David W. Christel, United States Magistrate Judge.
The District Court referred this action to United States Magistrate Judge David W. Christel. Plaintiff Victor Julian Turner, aka Mikailah Kay Sweetgrass-Turner, proceeding pro se and in forma pauperis, brings claims under 42 U.S.C. § 1983 alleging First, Eighth and Fourteenth Amendment claims arising out of her treatment as a transgender prisoner. Currently before the Court are plaintiff's motion for summary judgment (Dkt. 75) and defendants' crossmotion for summary judgment (Dkt. 78). For the reasons discussed below, the Court recommends plaintiff's motion be DENIED and defendants' motion be GRANTED.
Plaintiff's legal name is Mikailah Kay Sweetgrass-Turner (Dkt. 75-1 at 387), but all correspondence must be directed to plaintiff's “commitment name,” Victor Julian Turner, which is reflected in the caption. Dkt. 10 at 1.
Plaintiff has expressed a preference for female pronouns. Dkt. 56 at 11. Defendants have, throughout their briefing, also referred to plaintiff with a feminine pronoun. In light of the parties' usage and consistent with the practice of the Ninth Circuit in cases involving transgender parties, the Court refers to plaintiff with female pronouns. See, e.g., Schwenk v. Hartford, 204 F.3d 1187, 1192 n.1 (9th Cir. 2000). In doing so, the Court does not make any determination as to the merits of any claim or defense in this matter.
BACKGROUND
A. Procedural History
Plaintiff is a transgender prisoner confined at Stafford Creek Corrections Center (“SCCC”). Plaintiff initiated this matter on May 19, 2020 (Dkt. 1) and filed her second amended complaint-the operative complaint in this matter-on April 22, 2021. Dkt. 56.
Plaintiff identifies the following 14 SCCC and Department of Corrections (“DOC”) staff as defendants: Tori Ralkey, SCCC Prison Rape Elimination Act (“PREA”) Compliance Specialist, Chip Thornhill, SCCC Correctional Sergeant, Charlotte Headley, SCCC Security Operations Manager, Dennis Cherry, SCCC Custody Unit Supervisor, Barry DeHaven, SCCC PREA Specialist, Phil Hawks, SCCC Sergeant, Daniel Downing, SCCC Correctional Officer, Gregory Jones, SCCC Custody Unit Supervisor, Dennis Persell, SCCC Correctional Officer, Gina Penrose, SCCC Associate Superintendent, Steven Sinclair, DOC Secretary, Risa Klemme, DOC Americans with Disabilities Act Coordinator, Tim Thrasher, DOC director of mental Health Services / Mission Housing Administrator, and Ronald Haynes, SCCC Superintendent. Dkt. 46 at 3-5. Plaintiff also names two “John Doe” defendants. Id. at 5.
Plaintiff alleges defendants acted with deliberate indifference to her safety in violation of the Eighth Amendment by (1) assigning cellmates she considered unsafe, (2) denying her request to be housed with an inmate of her choice, (3) refusal by defendant Downing to refer to plaintiff by her preferred female pronouns, (4) prolonging plaintiff's housing in administrative segregation during her pending disciplinary matter, and (5) failing to transfer plaintiff to a women's prison. Dkt. 56 at 21-34. Plaintiff alleges defendants violated her Fourteenth Amendment right to equal protection by defendant Downing's failure to use female pronouns and by refusing to house plaintiff with her cellmate of choice. Id. Plaintiff alleges defendants violated her due process rights by denying her rights under prison regulations, prolonging her placement in administrative segregation, denying her grievances and failing to transfer her to a women's prison. Id. Plaintiff also asserts her expression of her transgender identity was “chilled” in violation of the First Amendment. Id. Finally, plaintiff alleges defendants violated the Americans with Disability Act (“ADA”) by failing to accommodate her gender dysphoria during her stay in administrative segregation and by failing to transfer her to a women's prison. Dkt. 56 at 20.
Plaintiff filed a motion for summary judgment, together with attached exhibits, on November 17, 2021. Dkt. 75. Pursuant to a combined briefing schedule entered by the Court, defendants filed their combined response and cross-motion for summary judgment, together with a Rand notice and eight declarations, on December 6, 2021. Dkts. 78, 79-87. Pursuant to the Court's Order granting plaintiff's request for an extension, plaintiff filed her consolidated response/reply and accompanying exhibits on January 3, 2022. Dkt. 92. Defendants filed their reply on February 17, 2022. Dkt. 93.
The facts discussed herein are based upon plaintiff's second amended complaint (which is verified under penalty of perjury), the materials submitted by plaintiff with her motion for summary judgment and her response/reply, and the Declarations and exhibits submitted by defendants in support of their cross-motion for summary judgment. Dkts. 56, 75, 92, 79-86.
Plaintiff is a male-to-female transgender prisoner who first announced her transgender identity to prison staff on May 29, 2019. Dkt. 56 at 6. After announcing her transgender identification, plaintiff began taking hormone replacement therapy, legally changed her name and requested (and was issued) female undergarments. Id. She is working toward obtaining gender confirmation surgery. Dkt. 80 at 10.
1. PREA Risk Assessment and Cell Move Policy
Shortly after plaintiff's announcement, she completed a Gender Dysphoria Protocol. Dkt. 56 at 7. Pursuant to DOC policy, prisoners who newly disclose transgender, intersex or gendernonconforming identity are scheduled for a PREA Risk Assessment; classification counselors must develop a monitoring plan, which is subject to regular reviews by a Facilities Management Review Team. Dkt. 75 at 168-70. Housing assignments for these prisoners must be reviewed to ensure compatibility, and to ensure that prisoners scoring as high risk for victimization are not housed with prisoners scoring as predation risks. Id. at 172. A review committee reassesses housing every six months to review any threats to safety. Id. at 173-4. The policy expressly provides that transgender prisoners may report issues with showering to the Superintendent. Id.
Housing assignments at DOC facilities are made in accordance with DOC Policy 420.140 and are based on a number of factors including consideration of 18 specific objective criteria set forth in the policy. See Dkt. 79-1 at 2-5 (DOC Policy 420.140, Cell Room Assignments). Among the objective criteria considered in making housing decisions are medical or mental health issues, length of incarceration, physical size and age of the offenders, PREA risk assessment and housing assignment requirements, self-disclosed concerns of offenders, commitment offense, incarceration history, and predation/victimization issues. Id. The policy permits a unit sergeant to request a move for unit needs and it also permits an inmate to request a change in cell assignments. Id. In order to request a change in cell assignment, an inmate must complete a DOC specified form and all inmates who will be residing in the cell must sign the form indicating they agree to the move. Id.
The process of moving inmates is complex. In addition to balancing the numerous criteria listed in Policy 420.14 for the inmates who are moved, the process also requires considering all of these factors for any “chain reaction” effects among other inmates in the population. Dkt. 83 at ¶ 3.
2. Plaintiff's 2019 Housing Re-Assignments
On May 28, 2019-just before plaintiff had announced her transgender identity-she was selected for a cell move that was made for institutional needs. Dkt. 56 at 5; Dkt. 84-1 at 3.
Plaintiff objected to the move and filed a grievance. Dkt. 84-1 at 2. The grievance was investigated, appealed, and processed through three levels. Dkt. 84-1 at 2-15. Plaintiff complained that her new cellmate was Muslim and had “known issues with homosexual/trans people,” and that she and the assigned cellmate had “STG [Security Threat Group] issues as well.” Dkt. 84-1 at 2. The first level investigator reported, after interviewing plaintiff, that her “big issue is that [s]he was comfortable where [s]he was . . . and did not want to move.” Dkt. 841 at 3. Interviews of the staff who had ordered the cell change indicate that plaintiff had not yet revealed her transgender identity as of the time of the move. Dkt. 84-1 at 6. The Level II response noted this, reporting that once the issues became known, plaintiff was moved to another cell. Dkt. 84-1 at 8. The response to plaintiff's Level III appeal concluded the move had been within policy guidelines. Dkt. 84-1 at 15.
Plaintiff completed her first PREA Risk Assessment pursuant to the PREA policy on May 30, 2019. Dkt. 80 at ¶ 1; Dkt. 80-1 at 2-3. She reported she “feels safe” at SCCC. Dkt. 80-1 at 3.
On July 15, 2019, defendant Thornhill approved a request to place plaintiff in a cell with an incoming prisoner. Dkt. 86 at 1-2. The move was also approved by defendants Thrasher and Ralkey. Dkt. 86-1 at 2. An electronic recordkeeping entry (“chrono”) for this move shows that it had received a PREA housing risk assessment review; the two prisoners' risk assessment scores were found compatible; and defendant Ralkey had approved the move. Id. at 4.
Plaintiff filed a grievance about this move. Dkt. 84-1 at 17. Although plaintiff's complaint alleges the assigned cellmate was a sex offender (Dkt. 56 at 7), plaintiff's grievance does not address this; instead, plaintiff complains the move had not received the proper PREA reviews. Dkt. 84-1 at 17. Plaintiff withdrew the grievance after being informed that PREA housing procedures had been correctly followed. Id.
Plaintiff was assigned another new cellmate on July 30, 2019; plaintiff alleges this cellmate was a “sex offender” but provides no additional information about the offender's conviction or risk factors. Dkt. 56 at 8. The chrono entry for this assignment indicates risk assessment scores were reviewed and were compatible; the move was approved by defendant Ralkey. Dkt. 86-1 at 4. The evidence does not include any grievances regarding this cellmate assignment.
Plaintiff was assigned another cell move on August 27, 2019. The chrono entry for this move indicates risk assessment scores were compatible and the move was approved by defendant Ralkey. Dkt. 86-1 at 4. Plaintiff alleges this cellmate, too, was a “convicted sex offender.” Dkt. 56 at 8. The record contains no grievances regarding this cellmate assignment, but plaintiff submitted a declaration from the cellmate, Wayne Gilpin, which states that plaintiff was very upset about the assignment. Dkt. 75-1 at 350.
On October 25, 2019, plaintiff submitted a cell change request to share a cell with inmate John Horn. Dkt. 75-1 at 406. Plaintiff's mental health provider, Melvin Coplin, sent an email expressing his support of the request. Dkt. 82-1 at 11. The request was denied “per Ralkey PREA coordinator.” Id. Defendant Ralkey states in discovery responses that she denied the request due to “confidential information.” Dkt. 81-1 at 5. Plaintiff filed a grievance about the denial, which she appealed to Level III; at each level, the investigators confirmed that the denial had been made by defendant Ralkey for confidential PREA safety and security reasons. Dkt. 84-1 at 32, 38, 43.
3. Plaintiff's PREA Complaint Against Defendant Downing
During an interaction with defendant Downing in the dining area on April 11, 2020, plaintiff requested he stop calling her “sir” and use female pronouns and terminology. Dkt. 56 at 10-11. Defendant Downing refused to do so and the next day plaintiff filed PREA complaint against him. Dkt. 56 at 11. The complaint was assigned to non-party Michael Whiteley for investigation and the response was issued by defendant Hayes. Dkt. 82 at ¶ ¶ 4, 6. The complaint was found to be “unsubstantiated,” meaning that the evidence was insufficient to determine whether the allegation was true or false. Dkt. 82 at ¶ 3.
4. January 21, 2021 Incident
On January 9, 2020, plaintiff completed her second housing review. Dkt. 80-1 at 5. The report states plaintiff can live with anyone but much prefers LGBTQ cellmates. Plaintiff had “no issues” to report and stated she was doing well.
On January 21, 2021, a prisoner was moved from plaintiff's unit because he and plaintiff had failed to maintain social distance. Dkt. 83 at ¶ 4. Later that day, plaintiff had a mental health emergency. Plaintiff states at approximately 11:30, she requested defendant Persell to contact mental health for a crisis intervention because she was having a mental health emergency. Dkt. 56 at 16. Plaintiff also requested that defendant DeHaven, the PREA Coordinator, be told plaintiff no longer felt safe. Id.
Defendant Persell reports that his conversation with plaintiff was “around noon” and she requested him to contact the PREA coordinator. Dkt. 85 at ¶3. Defendant Persell notified his supervisor, defendant Jones, of plaintiff's request. Id. Defendant Jones states that defendant Persell came to his office at approximately 12:10 to report plaintiff's request. Dkt. 83 at 2. Defendant Jones contacted defendant DeHaven and was on the phone with him at 12:20 when he heard an emergency radio call from defendant Persell, as plaintiff was having (in her words) “a cataclysmic psychiatric decompensation.” Dkt. 56 at 16. According to defendant Persell:
Turner then around 12:20 began yelling and screaming in the dayroom. I celled the pod in while making notification to Master Control of the situation.
Responding staff entered H-3 A-Pod and Turner went into the resource room and broke the filing cabinet, ripped a drawer out and fashioning a weapon with it.
Turner then stated, “I will take out the first two or three of you mother fuckers that come in here.” The emergency Response Team arrived on scene and with constant verbal directives, Turner put the weapon down and turned to cuff up. At this time, Turner was restrained and escorted from the unit by the Emergency Response Team.Dkt. 85 at ¶ 3. Plaintiff was taken to medical (Dkt. 83-1 at 2), and was later placed in administrative segregation. Dkt. 79-1 at 30. Plaintiff was issued a serious infraction for threatening, refusing to disperse and destroying property. Dkt. 79-1 at 26.
Plaintiff was housed in administrative segregation between January 21, 2021 and April 5, 2021, pending her disciplinary hearing and the completion of a new custody facility plan. Dkt. 79-1 at 30-38. Plaintiff received multiple reviews of her administrative segregation placement: she had an initial review on the day she was transferred (Dkt. 79-1 at 33), an intermediate review on February 8, 2021 at which she submitted a written statement (Id. at 33-34), a final review on February 19, 2021 (Id. at 35) and two extension reviews on February 22, 2021 and April 2, 2021 (Id. at 36-37). Plaintiff also appealed her placement in administrative segregation. Dkt. 92 at 101.
Plaintiff's disciplinary hearing took place on March 10, 2021. Dkt. 79-1 at 31. She was kept in administrative segregation while her housing was determined. Dkt. 92 at 84. Although some preparations were made for a possible transfer to the Washington Corrections Center for Women (“WCCW”) (Dkt. 79-1 at 32), ultimately it was determined that plaintiff would remain at SCCC. Dkt. 79-1 at 44. At a March 17, 2021 meeting of the Facilities Management Review Team to determine her housing, plaintiff stated she would like to stay at SCCC. Id.
On July 8, 2021, plaintiff had her third housing review. Plaintiff reported she was comfortable in her housing assignment, gets along well with her cellmate and has no issues to report; she stated she is still seeking housing at WCCW after completion of gender confirmation surgery. Dkt. 80-1 at 9.
DISCUSSION
A. Legal Standards
1. Summary Judgment
Summary judgment is appropriate when 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.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
The moving party bears the initial burden of showing “that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Where the moving party does not bear the burden at trial, it can carry its initial burden by presenting evidence that negates an essential element of the nonmoving party's case, or by establishing that the nonmovant lacks the quantum of evidence needed to satisfy its burden at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Where the moving party bears the burden at trial, it can meet its initial burden by presenting evidence sufficient to demonstrate that no reasonable trier of fact could find for the nonmoving party; the evidence presented must establish beyond controversy every essential element of the claim. Southern Cal. Gas. Co. v. City of Santa Ana, 336 F.3d 885, 888-89 (9th Cir. 2003).
If the moving party meets its initial responsibility, the burden then shifts to the nonmoving party to establish a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Genuine disputes are those for which the evidence is such that a “reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 257. Material facts are those which might affect the outcome of the suit under governing law. Id. A mere scintilla of evidence is insufficient to create a factual dispute. Id. at 252. Likewise, the nonmoving party cannot “defeat summary judgment with allegations in the complaint, or with unsupported conjecture or conclusory statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
A verified complaint, like plaintiff's, “may be treated as an affidavit to oppose summary judgment to the extent it is based on personal knowledge and sets forth specific facts admissible in evidence.” Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996) (internal quotations omitted); see also Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004). But allegations based merely on the plaintiff's belief are insufficient to oppose summary judgment, as are unsupported conjecture and conclusory statements. See Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003); McElyea v. Babbitt, 833 F.2d 196, 197-98 n.1 (9th Cir. 1987) (per curiam).
In ruling on a motion for summary judgment, the Court must draw all reasonable inferences in favor of the nonmoving party, Matsushita Elec. Indus. Co., 475 U.S. at 587, and may not weigh the evidence or make credibility determinations, Anderson, 477 U.S. at 248.
When parties file cross-motions for summary judgment, as the parties have done here, each motion “must be considered on its own merits.” Fair Hous. Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The court must review the evidence submitted in support of each cross-motion. Id. And, although the parties may each assert there are no uncontested issues of material fact, the Court must determine whether disputed issues of material fact are present. Id.; Osborn v. Butler, 712 F.Supp.2d 1134, 1148 (D. Idaho 2010).
Plaintiff misapprehends the applicable standard in her response to defendants' cross-motion, asserting defendants bear the burden of proof at trial and she is not required to adduce evidence to avoid summary judgment. Dkt. 92 at 2-3. To the contrary, it is plaintiff who bears the burden of proving her claims at trial, and, in order to defeat defendants' cross-motion for summary judgment, she must establish the existence of a genuine issue of material fact for trial. Matsushita, 475 U.S. at 585-87.
2. Section 1983 Standard
To sustain a § 1983 civil rights claim, plaintiff must show (1) she suffered a violation of rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, or omitted to perform an act which he was legally required to do that caused the deprivation complained of. Arnold v. Int'l Bus. Machines, 637 F.2d 1350, 1355 (9th Cir. 1981).
“The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Vicarious liability may not be imposed on supervisory employees for the acts of their subordinates in an action brought under 42 U.S.C. § 1983. Lemire v. California Dep't of Corr. & Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013). A supervisor may be held liable under § 1983 only “if he or she was personally involved in the constitutional deprivation or a sufficient causal connection exists between the supervisor's unlawful conduct and the constitutional violation.” Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001).
B. Personal Participation
As an initial matter, defendants contend plaintiff has failed to adduce evidence that eight of the named defendants (defendants Cherry, Hawks, Headley, DeHaven, Klemme, Penrose, Thrasher and Sinclair) personally participated in the alleged violations of her rights.
Defendants first argue plaintiff alleges no conduct by defendants Cherry, Hawks and Headley except their review or processing of plaintiff's grievances regarding the denial of her request to be housed with inmate Horn. Dkt. 78 at 13. This, defendants argue, is insufficient to establish their personal participation in any violation of plaintiff's rights.
The record shows defendant Cherry completed the level II investigation of plaintiff's grievance (with the ultimate response signed by defendant Haynes), and defendant Headley reviewed and responded to plaintiff's grievance at Level III. Dkt. 84-1 at 38; Dkt. 84-1 at 43. But the mere denial of a grievance cannot, without evidence a defendant directly participated, encouraged, authorized or acquiesced in the claimed harm, render a defendant liable for an alleged constitutional violation. Johnson v. Hayden, 2012 WL 652586, at *3 (D. Or. Feb. 10, 2012) (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (it is not unconstitutional to merely deny a grievance)); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison grievance procedure.”). Plaintiff has submitted no evidence of any such participation by defendants Cherry and Headley beyond their participation in the grievance process, and has therefore failed to support her claims against them.
Defendant Hawks, however, signed the denial of plaintiff's cell change request. Dkt. 75-1 at 406. While the reason provided for the denial indicates the decision was made “per Ralkey PREA coord[inator],” it was defendant Hawks who ultimately signed the denial. Id. Thus, in addition to his role in investigating plaintiff's grievance, defendant Hawks also personally participated in the underlying decision the grievance challenged.
Defendants next assert plaintiff's only allegations against defendant DeHaven arise out of his processing of her PREA complaint against defendant Downing. Defendant DeHaven avers that, pursuant to DOC policy for processing PREA claims, his only role in plaintiff's complaint was to process paperwork and to inform plaintiff of the outcome. Dkt. 82 at ¶ 8. Although plaintiff speculates defendant DeHaven's role was greater, she provides no evidence. Instead, the evidence shows defendant DeHaven neither investigated nor decided plaintiff's claim; the claim was assigned to a non-defendant investigator and was decided by defendant Haynes. Dkt. 82 at ¶ 6; Dkt. 82-1. The record demonstrates defendant DeHaven's role was, essentially, clerical; there is no evidence he personally participated in any alleged violation of plaintiff's rights.
Finally, defendants contend plaintiff's allegations against defendants Penrose, Klemme, Thrasher and Sinclair assert only supervisory liability which, they argue, is insufficient to establish personal participation.
Plaintiff's complaint makes no factual allegations whatever about defendants Klemme and Sinclair. Indeed, their names are mentioned in the second amended complaint only in legal conclusions which allege no facts. Dkt. 56 at 32. The dearth of facts pertaining to these defendants suggests plaintiff named them as defendants based solely on their supervisory responsibilities or positions-which is not permissible in an action brought under § 1983. Monell v. Dep t of Soc. Servs. of City of New York, 436 U.S. 658, 691-94 (1978). In the absence of any allegations-let alone any evidence-that defendants Klemme and Sinclair personally participated in conduct violating plaintiff's rights, plaintiff cannot state a claim against them.
With respect to defendant Penrose, plaintiff has submitted a discovery response in which defendant Penrose admits she engaged in communications with defendant Ralkey regarding plaintiff's housing after the conclusion of plaintiff's disciplinary hearing, including “direct[ing] Defendant Ralkey to hold Plaintiff in the Restrictive Housing Unit until the classification process and prohibited placement request were finalized through Headquarters.” Dkt. 92 at 84. The record, therefore, establishes defendant Penrose's personal participation in defendants' decision to continue plaintiff's restrictive housing. Plaintiff therefore supports her claims against defendant Penrose with more than mere supervisory liability.
Similarly, the record reflects defendant Thrasher participated in approving at least one of the housing assignments plaintiff challenges. See, e.g., Dkt. 86-1 at 2. Accordingly, plaintiff's claims against defendant Thrasher do not depend solely upon vicarious liability for the acts of his staff.
The Court recommends plaintiff's claims against defendants Cherry, Headley, DeHaven, Klemme and Sinclair be dismissed with prejudice for lack of personal participation. Dismissal on this ground is not appropriate as to defendants Hawks, Penrose and Thrasher, because the record shows their personal participation in the decisions challenged by plaintiff.
However, as discussed below, the Court concludes that plaintiff's substantive claims-including the claims against defendants Hawks, Penrose and Thrasher-should be dismissed for other reasons on the merits.
C. Eighth Amendment Failure to Protect
Plaintiff alleges defendants Ralkey and Thornhill failed to protect her from being housed with cellmates she considered unsafe and denied housing with a cellmate of her choice with whom she felt comfortable. Dkt. 56 at 21-23. Plaintiff contends defendant Downing violated her eighth amendment rights by refusing to refer to her using female pronouns after she requested that he do so. Id. at 26. Plaintiff alleges defendants Jones and Persell failed to protect her during a mental health breakdown when they did not contact a mental health provider as she had requested. Id. at 28. Finally, plaintiff asserts defendants Penrose, Thrasher and Haynes violated the Eighth Amendment by holding plaintiff in administrative segregation, and in their decision not to transfer her to a women's prison facility. Id. at 29-32.
Plaintiff also includes defendants Cherry, Headley and DeHaven in her claim for the denial of her cellmate request. As discussed above, the Court has recommended dismissal of these defendants for the separate reason that plaintiff has not established their personal participation in the alleged violation.
Plaintiff also includes defendants Sinclair and Klemme in this claim. The Court has separately recommended their dismissal for lack of personal participation.
The Eighth Amendment imposes a duty upon prison officials to provide humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994). This duty includes ensuring that inmates receive adequate food, clothing, shelter, and medical care, and taking reasonable measures to guarantee the safety of inmates. Id.
In cases alleging a constitutional violation based on a failure to prevent harm, the plaintiff must first meet an objective component by showing “[s]he is incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834; see Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010), overruled on other grounds, Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). A plaintiff must also meet a subjective component by showing the prison official acted with deliberate indifference to inmate health or safety. Farmer, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 25, 33 (1993) (“[A] claim that a prisoner's confinement violate[s] the Eighth Amendment requires an inquiry into the prison officials' state of mind.”). “[A] prison official cannot be found liable under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 832; see also Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). A prison official's “failure to alleviate a significant risk he should have perceived but did not,” therefore, cannot “be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838.
1. 2019 Housing Assignments
Plaintiff alleges defendants Ralkey and Thornhill violated her Eighth Amendment rights by placing her with incompatible cellmates she believed posed a risk of harming her, in assignments made on May 28, 2019, July 15, 2019, July 26, 2019 and “approximately 9/2019.” Dkt. 56 at 5-8. Defendants contend plaintiff has not adduced evidence demonstrating defendants Ralkey and Thornhill subjectively knew of and disregarded an excessive risk to plaintiff's safety, and that in any event plaintiff has failed to establish she was harmed by the cellmate assignments.
Plaintiff has not submitted evidence demonstrating defendants knew of and disregarded plaintiff's safety concerns with respect to the May 28 cell move. Plaintiff filed a grievance asserting her newly assigned cellmate had “issues with homosexual/trans people” because he was Muslim, and that there were “STG [Security Threat Group] concerns between the two of us.” Dkt. 84-1 at 2. However, the investigation of this grievance revealed that no defendant was aware of any STG concerns, and plaintiff had not made known to any defendant her transgender status at the time of the cell assignment. Id. at 6, 8, 9. Once plaintiff's concerns were known, she was moved to another cell. Id. at 8, 10.
Plaintiff also filed a grievance regarding her July 15 cellmate assignment. Dkt. 84-1 at 17. But this grievance did not raise any safety concerns; instead, plaintiff asserted only that proper PREA process had not been followed. Id. Once plaintiff was informed that defendant Ralkey had reviewed the move, as required by DOC's PREA procedures, she withdrew the grievance. Id. Plaintiff alleges she informed her mental health provider, Melvin Coplin, of her safety concerns regarding this move and contends Mr. Coplin passed this information on to defendants Ralkey and Thornhill. Dkt. 56 at 7. However, the record contains no such communication regarding plaintiff's July 15 cellmate assignment.Furthermore, defendant Ralkey denies plaintiff complained to her about any cellmate assignments and recalls no contact from plaintiff. Dkt. 81-1 at 4. The Court therefore finds plaintiff has not submitted evidence establishing defendants knew of, and disregarded, a substantial risk of serious harm regarding the July 15 cellmate assignment.
The record contains an email from Mr. Coplin dated August 27, 2019. But this email does not appear to address the July 15 cell assignment. Rather, its primary thrust is to express support for plaintiff's affirmative request (first made in August, 2019) to be housed with inmate Horn. Dkt. 82-1 at 11; Dkt. 56 at 8. Further, while expressing an opinion that the then-current assignment was “counterintuitive” Mr. Coplin's email does not express a concern that plaintiff was endangered. Id.
The record contains no documentation of grievances with respect to any subsequent cellmate assignment. Plaintiff's DOC records show assignments made on July 15, July 30 and August 27 were all subjected to PREA risk assessment and each cellmate's risk score was examined and found compatible with plaintiff's risk score; each was approved by defendant Ralkey. Dkt. 86-1 at 4. Plaintiff, however, alleges she “expressed pain and anguish” regarding the assignment made “on or about July 26” and another assignment made “on or about 9/2019,” and “defendants Thornhill and Ralkey ignored my plea for help.” Dkt. 56 at 8. This statement is broad and conclusory and conflicts with defendant Ralkey's statement that she recalls no concerns raised by plaintiff. Dkt. 81-1 at 4. Nonetheless, drawing inferences in plaintiff's favor, the Court concludes there are issues of fact as to defendants' knowledge of plaintiff's safety concerns regarding the July 30 and August 27 cellmate assignments.
However, plaintiff has failed to establish that she suffered cognizable harm caused by any of the cell assignments, including those on July 30 and August 27. Plaintiffs who allege deliberate indifference “must . . . demonstrate that the defendants' actions were both an actual and proximate cause of their injuries." Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). But a plaintiff alleging only generalized fear of harm from fellow inmates does not establish injury under the Eighth Amendment. Williams v. Wood, 223 Fed.Appx. 670, 671 (9th Cir. 2007).
Here, plaintiff does not allege she was assaulted, or even threatened with assault, by any of her cellmates. Instead, she alleges only a generalized and wholly speculative fear that an assault might occur. This is insufficient to state an Eighth Amendment claim. A “mere suspicion that an attack will occur” is not enough to support a cognizable Eighth Amendment claim. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). This is because “speculative and generalized fears of harm at the hands of other prisoners do not rise to a sufficiently substantial risk of serious harm.” Williams, 223 Fed.Appx. at 671. See also Morgan v. MacDonald, 41 F.3d 1291, 1293-94 (9th Cir. 1994) (plaintiff failed to state a claim because “[his] complaint contains no allegations that he was ever subjected to retaliation at the hands of his fellow inmates, nor does it provide any basis for inferring [defendant] was aware that his actions exposed [plaintiff] to a substantial risk of serious harm”). Plaintiff has not adduced facts demonstrating more than speculative harm from her 2019 cellmate assignments, which is insufficient to state an Eighth Amendment claim.
The Court recommends plaintiff's Eighth Amendment claims regarding plaintiff's 2019 cellmate assignments be dismissed.
2. Cellmate of Choice
Plaintiff alleges defendants Ralkey, Thornhill and Hawks violated the Eighth Amendment by denying her request to be housed with her cellmate of choice, inmate John Horn, when plaintiff's mental health provider had expressed his support of the request. Dkt. 56 at 2123. Defendants contend plaintiff's claim fails as a matter of law because there is no constitutional right to a cellmate of choice.
“While the Eighth Amendment requires prison officials to provide prisoners with the basic human needs, including reasonable safety, it does not require that the prisoners be comfortable and provided with every amenity.” Allen v. Figueroa, 56 F.3d 70 at *7 (9th Cir. 1995) (citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). Consequently, a prisoner “has no Eighth Amendment or due process right to be allowed to choose his cellmate for compatibility.” Id. See also Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (per curiam) (no due process right to be housed with certain inmates); Harris v. Greer, 750 F.2d 617, 618 (7th Cir. 1984) (“an inmate has of course no constitutional right to the cellmate . . . of his choice.”). This is so even if an inmate's cellmates were “annoying, offensive, strange, rude,” or otherwise undesirable living companions. Blue v. Knowlin, No. 2:09-1629 CMCRSW, 2009 WL 2843315, at *4 (D.S.C. Aug.31, 2009).
Plaintiff contends defendants acted with deliberate indifference because her mental health provider had recommended approving inmate Horn as a compatible cellmate. Dkt. 56 at 4; Dkt. 82-1 at 11. But as defendants note, defendant Ralkey denied the request based upon separate, confidential, PREA information that was unavailable to plaintiff's mental health provider. Dkt. 75-1 at 406, Dkt. 81-1 at 5.Furthermore, “the fact that one staff member recommended certain housing arrangements . . . does not imply that medical harm would result if that recommendation was not followed.” Moots v. Lombardi, 453 F.3d 1020, 1022 (8th Cir. 2006) (dismissing Eighth Amendment claim for denial of cellmate recommended by mental health provider where plaintiff never voiced concerns about a specific threat to his safety.).
Plaintiff makes the bald assertion that this information was “fabricated.” Dkt. 92 at 5. Defendant Ralkey has attested that she did have such information. Dkt. 81-1 at 5. Plaintiff's conclusory assertion, made without personal knowledge, is insufficient to avoid summary judgment. Hernandez, 343 F.3d at 1112.
Plaintiff has no constitutional right to the cellmate of her choice. The Court recommends her claims based upon the denial of her request to be housed with inmate Horn be dismissed.
3. Use of Male Pronouns
Plaintiff contends her Eighth Amendment rights were violated by defendant Downing's refusal to refer to her with female pronouns and terminology, even after she informed him of her preferences. Dkt. 56 at 25. Defendants contend that prisoners have no constitutional right to be free from insulting statements. Dkt. 78 at 19.
Allegations of verbal harassment or abuse do not state a constitutional deprivation under § 1983. Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997), abrogated on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (prison officials' abusive language towards Muslim inmates insufficient to establish equal protection violation). Disrespectful, and even assaultive, comments by prison guard are insufficient to implicate the Eighth Amendment. Keenan, 83 F.3d at 1092; see also Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (use of vulgar language does not violate a constitutional right); Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (prisoner does not have cause of action under § 1983 for being called obscene name by prison employee). Indeed, even when such insults reach the level of sexual harassment, they are not sufficient to support an Eighth Amendment claim. Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (“[a]lthough prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, . . . the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment.”).
Plaintiff alleges defendant Downing refused to acknowledge her as female and continued to use male pronouns after she requested he stop doing so. Dkt. 56 at 11. In her reply materials, plaintiff also asserts than another unidentified defendant referred to her as an “abomination.” Dkt. 92 at 11. But plaintiff alleges no more than the use of insulting language. As a matter of law, insulting and offensive statements-no matter how objectionable-are not sufficient to support a constitutional violation. Freeman, 125 F.3d at 738. Plaintiff cannot establish an Eighth Amendment claim against defendant Downing for his use of male pronouns.
4. Housing in Administrative Segregation
Plaintiff next contends defendants Penrose, Thrasher and Hayes violated her Eighth Amendment rights by confining her in administrative segregation because, while there, plaintiff was subjected to “harassment and misgendering” and was not afforded shower facilities that protected her privacy.Dkt. 56 at 30-31. Plaintiff likewise contends the same defendants violated the Eighth Amendment by failing to transfer her to a women's prison.
Plaintiff also alleges Fourteenth Amendment due process claims arising from her assignment to administrative segregation. Dkt. 56 at 30-31. Those claims are discussed below.
Plaintiff was confined in administrative segregation for a limited period of time while her infraction proceeding was investigated and heard, and while her post-infraction housing was finalized. She entered segregation on January 21, 2021 and was released to the general population at SCCC on April 5, 2021-a period of 81 days. Dkt. 79-1 at 30-38. Plaintiff asserts she suffered harassment during that period, but she has submitted no evidence that defendants Penrose, Thrasher and Hayes had knowledge of her complaints.
The record contains only one grievance raising issues of harassment in administrative segregation-Log I.D. Number 21726110, which complains staff and inmates have referred to her with derogatory terms. Dkt. 84-1 at 47. But this grievance was never presented to or seen by any of the defendants. Because it was rejected at Level 0 as non-grievable, the grievance was not reviewed by any staff except non-defendant Grievance Coordinator Dahne. Dkt. 84 at 3. Plaintiff also avers that she sent several medical kites to Mental Health “concerning the harassment [she is] suffering,” but provides no evidence that defendants Penrose, Thrasher and Hayes received notice of these.
Plaintiff refers to and has attached two documents purporting to be these kites, but they are almost completely illegible. Dkt. 75-1 at 412, 413.
Plaintiff also contends she was forced to shower within view of other inmates while in administrative segregation. Dkt. 75 at 30. However, defendants Haynes and Penrose responded under oath in written discovery that a shower curtain was available for screening. Dkt. 75-1 at 81-82; Dkt. 92 at 78. Plaintiff strenuously disputes this, asserting in her briefing that “there is no concealing curtain. Period” Dkt. 92 at 7. But even if the Court were to accept this assertion as evidence, it is insufficient to defeat summary judgment. This is because an issue of fact must be material-and here, the material fact is the subjective knowledge of defendants, not plaintiff's understanding.Defendants' evidence shows they believed a shower curtain was available- and it is their subjective mental state that is at issue. A reasonable jury could not find defendants knew of, and disregarded, a serious risk to plaintiff's safety during her confinement in administrative segregation. Farmer, 511 U.S. at 832.
The Court notes that DOC policy provides that transgender inmates “may report verbally or in writing housing/showering issues or concerns to the Superintendent[.]” Dkt. 79-1 at 15. There is no evidence plaintiff did so here.
5. Transfer to Women's Prison
Plaintiff's claim that defendants Penrose, Thrasher and Hayes acted with deliberate indifference in not transferring her to a women's prison similarly fails.
First, prisoners have no constitutional right to avoid being transferred to another prison, or to be housed in a particular institution. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 225-27 (1976); United States v. Brown, 59 F.3d 102, 105 (9th Cir. 1995) (per curiam). There is no constitutional right to incarceration at a prison of plaintiff's choice. Williams, 223 Fed.Appx. at 671; see also Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (due process protections generally do not apply when prison officials change an inmate's place of confinement, “even though the degree of confinement may be different and prison life may be more disagreeable in one institution than in another”); Aliahmed v. Troxler, 839 Fed.Appx. 675, 677 (3d Cir. 2021) (because transgender plaintiff lacked a cognizable liberty interest in being confined in a particular institution, she was unlikely to succeed on claim for injunctive relief to transfer to a women's prison).
Second, the evidence shows plaintiff has taken conflicting and inconsistent positions on her confinement at SCCC. While in some communications plaintiff expressed a preference to be transferred to a women's facility (see, e.g. Dkt. 84-1 at 47), in other communications plaintiff indicated she felt “safe” at SCCC (see, e.g. Dkt. 80-1 at 3). Indeed, plaintiff objected to a proposed “facility prohibition” from SCCC and asked whether she could “sign a behavior contract to stay here at SCCC.” Dkt. 92 at 97, 107. And during her periodic housing reviews, plaintiff has expressed satisfaction with her placement at SCCC, including reporting in June, 2021 she was “comfortable in [her] housing assignment,” although “still seeking housing at WCCW after completion of Gender Confirmation Surgery.” Dkt. 80-1 at 10. See also Dkt. 79-1 at 44 (note from March 17, 2021 Facilities Management Review Team meeting indicating plaintiff stated she “would like to stay at SCCC”).
Thus, even if there were an Eighth or Fourteenth Amendment right to the prison of plaintiff's choice, plaintiff cannot demonstrate defendants acted with a mental state of deliberate indifference in light of her statements affirming her comfort at SCCC and seeking to stay there. The Court recommends plaintiff's claims for failure to transfer her to another facility be denied.
6. Response to January 21, 2021 Incident
Finally, plaintiff contends defendants Persell and Jones violated her Eighth Amendment rights by failing to contact a mental health provider as she had requested on January 21, 2021. Dkt. 56 at 28.
Both parties cite to the statements defendants submitted in connection with the events of that day. Defendant Persell states that on January 21, 2021 “around noon” plaintiff told him she was “experiencing a mental health emergency and to contact the PREA coordinator.” Dkt. 85 at 2; Dkt. 92 at 140. Defendant Persell “notified CUS Jones what was said.” Id. Then, “[a]t 12:20 offender Turner began yelling and screaming in the dayroom.” Id. Defendant Persell then focused upon addressing the emergent situation, including “cell[ing] the pod” and informing Master Control of the situation; ultimately, the Emergency Response Team succeeded in getting plaintiff to put down the weapon she had fashioned from a metal file cabinet and to “cuff up.” Id.
Defendant Jones reports he first heard of plaintiff's request at approximately 12:10 pm when defendant Persell came to his office to inform him plaintiff requested an emergency meeting with the PREA coordinator, defendant DeHaven. Dkt. 83 at 2. While he was speaking with defendant DeHaven, defendant Jones heard a call from defendant Persell's radio describing an emergency with plaintiff refusing to disperse. Id. At this point, defendant Jones ended the phone call in order to respond to the emergency. Id.
Plaintiff's narrative begins slightly earlier-though her various reports have somewhat differing timelines. In her complaint, plaintiff states she first asked defendant Persell to contact mental health at “approximately 11:30 am.” Dkt. 56 at 16. Plaintiff “also requested that [defendant Persell] inform defendant DeHaven that I no longer felt safe in the H3 living unit.” Id. From there, the timeline of plaintiff's account matches defendants': she agrees that at approximately 12:20 pm, she “had a cataclysmic psychiatric decompensation” leading to the conduct for which she was infracted. Id.
Plaintiff also lists 11:30 as the approximate time of the “incident” in a grievance she later filed. Dkt. 84-1 at 45. A statement submitted by plaintiff's mental health provider indicates plaintiff told him she requested the desk officer to contact Mental Health at noon. Dkt. 75-1 at 417. A third, unsigned, statement from plaintiff places the time of all of the events one hour earlier. Dkt. 75-1 at 364.
Plaintiff points to DOC Policy 630.500, which provides that staff “will” notify the onsite mental health provider when an inmate declares a “mental health emergency” and expresses “acute mental health symptoms.” Dkt. 75-1 at 295. Plaintiff states that is exactly what she did on January 21: she declared a mental health emergency and requested a mental health professional be contacted because she was “experiencing acute symptoms that required an emergency mental health intervention.” Dkt. 56 at 16. Plaintiff argues defendants violated her Eighth Amendment rights by failing to summon mental health assistance for her during her emergency, as DOC policy requires them to do. Id. at 56.
The record indicates that both defendants focused on plaintiff's request to contact defendant DeHaven, and neither tried to reach a mental health professional. Dkt. 85 at 2; Dkt. 83 at 5. It therefore appears that defendants' response may not have been in compliance with DOC policy 630.500. But that does not mean they were deliberately indifferent to the risk of harm to plaintiff. Instead, they both immediately responded to plaintiff's statement that she did not feel safe-defendant Persell by notifying his supervisor, and defendant Jones by immediately contacting PREA officer DeHaven. Id. Then, before more could be done, plaintiff created an emergency situation to which they both had to redirect their attention. While in hindsight it might have been more helpful to contact mental health before reaching out to the PREA coordinator- that is not the standard the Court must apply in evaluating an Eighth Amendment claim.
Under the undisputed facts presented by both sides, plaintiff declared an emergency and requested both a mental health professional and the PREA coordinator; defendants promptly began responding to one of the requests, but were then pulled off that task by the need to respond to plaintiff's violent behavior. The Court finds a reasonable trier of fact could not find defendants were deliberately indifferent to a serious risk of harm to plaintiff. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The Court recommends plaintiff's Eighth Amendment claims against defendants Persell and Jones be dismissed.
D. First Amendment Retaliation
Plaintiff alleges all defendants have “chilled” her expression of her transgender identity in violation of the First amendment. See, e.g. Dkt. 56 at 22. Construing plaintiff's claim liberally, it appears she is alleging a claim for retaliation.
A First Amendment retaliation claim in the prison context has five basic elements: “(1) An assertion that a state actor took some adverse action against an inmate, (2) because of, (3) that prisoner's protected conduct, and that such action, (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To prevail on a retaliation claim, “a plaintiff must show that his protected conduct was the substantial or motivating factor behind the defendant's conduct.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (citation and internal quotation omitted). In addition, a plaintiff “bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains.” Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). The Court evaluates a retaliation claim in light of the deference accorded prison officials. Id. at 807.
With respect to each defendant, plaintiff alleges virtually the same claim: “Defendant . . . fail[ed] to take reasonable steps to alleviate plaintiff's distress thereby denying plaintiff fair application of prison regulations, which is an action taken to chill or silence plaintiff's expression of being a transgender person, causing a violation of plaintiff's first amendment rights.” Dkt. 56 at 22-23. See also Dkt. 75 at 24 (Plaintiffs summary judgment motion, asserting the “actions and inactions of Defendants have been an attempt to chill [plaintiff's] expression of being transgender, so that she may receive fair treatment.”)
Although it is not entirely clear, it appears plaintiff claims her “protected activity” is simply her transgender identity. But plaintiff has not established any causal link between any protected activity and any adverse action by the defendants. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (to state a retaliation claim, “the plaintiff must allege a causal connection between the adverse action and the protected conduct”). Plaintiff does not identify any concrete action taken by any defendant-and provides mere speculation that whatever defendants did was motivated by retaliation. Plaintiff has supplied no facts, other than her own bald assertion, that each of the defendants took some action (or declined to take some action) because of her transgender status. This is insufficient to defeat a motion for summary judgment. Barstad v. Dep't. of Corrections, 2015 WL 1867082, at *26-27 (W.D. Wash. April 23, 2015) (granting summary judgment for defendant where prisoner plaintiff failed to present admissible evidence showing defendant issued infractions based on a motivation to retaliate); Watts v. Ruggiero, 2016 WL 916233, at *20 (E.D. Cal. March 20, 2016) (granting summary judgment when a prisoner plaintiff provided no evidence to support his allegation that he was retaliated against or to rebut the defendant's sworn statement).
The Court recommends plaintiff's retaliation claim be dismissed.
E. Fourteenth Amendment Equal Protection Claims
Plaintiff alleges she has been denied equal protection by defendant Downing's refusal to use her preferred pronouns (Dkt. 56 at 25) and by the denial by defendants Ralkey, Thornhill and Hawks to permit her the “privilege of housing with a friend” (Dkt. 75 at 28).
“To state a § 1983 claim for violation of the Equal Protection Clause, a plaintiff must show that [s]he was treated in a manner inconsistent with others similarly situated, and that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005) (internal quotations omitted). To allege an equal protection violation based on race or other protected status, plaintiff “must show that the defendant acted with an intent or purpose to discriminate against [her] based upon [her] membership in a protected class. Intentional discrimination means that a defendant acted at least in part because of a plaintiff's protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (citations and quotations omitted).
Plaintiff's only allegation of conduct by defendant Downing is his use of language plaintiff found offensive. Dkt. 56 at 10-11. As discussed above, the constitution does not protect prisoners from the use of insulting language. Freeman, 125 F.3d at 738. And while the use of offensive language could be evidence of discriminatory intent behind some other action, it is not, in itself, a sufficient basis for an equal protection claim. Id. at 738 & n.6.
Plaintiff's claim regarding the denial of her cellmate of choice also fails. Plaintiff has submitted no evidence showing a discriminatory motive for the denial. On the contrary, defendants have submitted evidence that the denial was due to confidential PREA information. Dkt. 81-1 at 5. Plaintiff supplies no evidence-but only speculation and conclusory statements- to support her assertion of a discriminatory motive. Dkt. 75 at 28.
The Court recommends plaintiff's equal protection claims be dismissed.
F. Fourteenth Amendment Due Process Claims
Plaintiff alleges defendants violated her due process rights by (1) failing to follow prison policies; (2) “needlessly prolonging” her assignment to administrative segregation; and (3) denying and/or improperly processing her grievances.
1. Failure to Follow Policies
Plaintiff alleges defendants Ralkey and Thornhill “fail[ed] to follow prison regulations, which is both an action in violation of RCW 72.09.135and an action that denied plaintiff her due process and equal protection rights.” Dkt. 56 at 21, 23. Plaintiff also alleges all defendants “den[ied] plaintiff fair application of prison regulations.” Id. at 22. Plaintiff's claims fail as a matter of law.
RCW 72.09.135 requires the DOC to adopt minimum standards for prison operations. Nothing in the statute indicates that it creates a private right of action under either state or federal law. Neither party discusses this statute or treats it as a separate claim. To the extent any claim is cognizable under this statute, the Court recommends declining to exercise supplemental jurisdiction over it. 28 U.S.C. § 1367(c)(3).
State policies and regulations are “not designed to confer rights on inmates,” but are instead “primarily designed to guide correctional officials in the administration of a prison.” Sandin v. Conner, 515 U.S. 472, 481-82 (1995). Although “[p]rison regulations governing the conduct of correctional officers” are “relevant in determining whether an inmate's right was clearly established,” they do not confer rights. Furnace v. Sullivan, 705 F.3d 1021, 1027 (9th Cir. 2013) (citations and internal quotation marks omitted); see also Parra v. PacifiCare of Arizona, Inc., 715 F.3d 1146, 1154 (9th Cir. 2013) (“Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”) (emphasis added; citation and internal quotation marks omitted). Thus, plaintiff has no separate constitutional claim for defendants' alleged violations of DOC policies.
The Court recommends plaintiff's claims for failure to follow prison policies be dismissed.
2. Administrative Segregation
Plaintiff alleges defendants Penrose, Thrasher and Haynes violated her right to due process in continuing her confinement in administrative segregation beyond the period she claims is specified in DOC policies. Dkt. 56 at 19-20.
Pursuant to the Due Process Clause of the Fourteenth Amendment, “no state shall ‘deprive any person of life, liberty, or property without due process of law.'” Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986), overruled on other grounds, Sandin, 515 U.S. 472. The due process guarantees of the Fourteenth Amendment thus “apply only when a constitutionally protected liberty or property interest is at stake.” Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir. 1993).
Ordinarily, administrative segregation in and of itself does not implicate a protected liberty interest. See Sandin, 515 U.S. at 485-86. However, the ultimate inquiry is whether the confinement imposes an atypical and significant hardship. See id. at 483-84; Serrano, 345 F.3d at 1079. Determining whether a prison condition is “atypical and significant” requires consideration of the specific facts of each case. Keenan, 83 F.3d at 1089. Courts consider three guideposts in framing the inquiry: (1) whether the challenged condition mirrored those conditions imposed upon inmates in administrative segregation and protective custody, and thus comported with the prison's discretionary authority; (2) the duration of the condition and the degree of restraint imposed; and (3) whether the state's action will invariably affect the duration of the prisoner's sentence. Serrano, 345 F.3d at 1078.
Here, plaintiff's segregation was for the limited duration of 81 days. While plaintiff contends this was “needlessly prolonged” (Dkt. 56 at 30), courts have found considerably longer segregation periods insufficient to trigger a liberty interest. See, e.g. Bryant v. Cortez, 536 F.Supp.2d 1160, 1167 (C.D. Cal. 2008) (18-month segregation period did not trigger a liberty interest). Furthermore, there is no evidence here that the conditions did not mirror those of other restrictive housing at SCCC, and plaintiff makes no allegation that her confinement adversely affected the length of her sentence.
Plaintiff, however, asserts she experienced “atypical hardship” in segregation because of issues unique to her transgender status, including harassment and a lack of privacy while showering. Dkt. 56 at 19. It is not clear that whether these factors-which seem equally likely to occur throughout the prison-are sufficiently “atypical” to create a liberty interest.
But even if a liberty interest were implicated here, plaintiff would have no claim unless the deprivation was made without due process. In the limited circumstances where a liberty interest in avoiding administrative segregation exists, “due process requires only the following procedures: prison officials must hold an informal non-adversary hearing within a reasonable time after the prisoner is segregated. The prison officials must inform the prisoner of the charges against the prisoner or their reasons for considering segregation. Prison officials must allow the prisoner to present his views.” Toussaint, 801 F.2d at 1100. “[D]ue process does not require detailed written notice of charges, representation by counsel or counsel-substitute, an opportunity to present witnesses, or a written decision describing the reasons for placing the prisoner in administrative segregation.” Id. at 1100-01.
Here, with respect to her disciplinary proceeding, plaintiff received a copy of the incident report (Dkt. 92 at 140), had the opportunity to submit witness statements (Dkt. 92 at 141-144) and attended her disciplinary hearing (Dkt. 79-1 at 26-28). With respect to her administrative segregation placement specifically, plaintiff had an initial review on the day she was transferred (Dkt. 79-1 at 33), an intermediate review on February 8, 2021 at which she submitted a written statement (Id. at 33-34), a final review on February 19, 2021 (Id. at 35) and two extension reviews on February 22, 2021 and April 2, 2021 (Id. at 36-37). Plaintiff also appealed her placement in administrative segregation. Dkt. 92 at 101.
Plaintiff has received more than adequate due process regarding her confinement in administrative segregation. The Court therefore recommends that plaintiff's segregation-related due process claim be dismissed.
3. Denial of Grievances
Plaintiff also alleges due process claims arising out of the denial of her grievance for the rejection of her cellmate request and her PREA complaint against defendant Downing for using insulting language. Both claims fail because plaintiff has no due process right to a particular grievance process.
Plaintiff cannot state a cognizable claim under § 1983 for the denial of grievances because prisoners have no stand-alone due process rights related to the administrative grievance process. Ramirez, 334 F.3d at 860; Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Allen v. Wood, 970 F.Supp. 824, 832 (E.D. Wash. 1997); Stewart v. Block, 938 F.Supp. 582, 588 (C.D. Cal. 1996). As there is no right to any particular grievance process, it is impossible for plaintiff's due process rights to have been violated by any denial or failure to properly process her grievances.
Furthermore, as discussed above, plaintiff has no substantive constitutional right to a cellmate of her choice, or to be free from insulting language; there is therefore no corresponding right to due process. Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir. 1993) (due process guarantees of the Fourteenth Amendment “apply only when a constitutionally protected liberty or property interest is at stake.”).
Plaintiff's Fourteenth Amendment claims arising out of the processing of her grievances and PREA complaint fail to state a claim upon which relief can be granted; the Court therefore recommends they be dismissed.
G. ADA/RA Claims
The complaint alleges defendants violated the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”) when they prolonged plaintiff's housing assignment in segregation and did not place her in a women's prison. Dkt. 56 at 20, 30-32.
Title II of the ADA and § 504 of the RA both prohibit discrimination on the basis of disability. The ADA applies only to public entities, whereas the RA proscribes discrimination in all federally funded programs, but a substantially similar analysis applies to both.To establish a violation, plaintiff must demonstrate: (1) she is a qualified individual with a disability; (2) she was excluded from participation in or otherwise discriminated against with regard to a public entity's services, programs, or activities, and (3) such exclusion or discrimination was by reason of her disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (citing Weinreich v. Los Angeles Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997)). To recover damages, plaintiff must prove intentional discrimination. Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008).
Because “[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act,” resolution of the ADA claim necessarily resolves the RA claims as well. See Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999).
Plaintiff's complaint makes only a cursory, conclusory, allegation that DOC is unable “to provide me reasonable accommodations . . . for my gender dysphoria.” Dkt. 56 at 20. Plaintiff's summary judgment motion contends plaintiff's disability is an inability to reproduce. Dkt. 75 at 22. Her motion asserts this disability is somehow not accommodated because DOC uses a “sexbased classification system to determine her housing.” Id. at 23.
Plaintiff's arguments-unsupported by evidence-fail to meet her burden to establish defendants' decisions to house her in administrative segregation and not to transfer her to a women's prison were caused by her gender dysphoria or inability to reproduce. Instead, the record reflects plaintiff was moved to administrative segregation on January 21, 2021 after a violent episode where she incurred serious infractions for threatening others with bodily harm, refusing a staff order, manufacturing a weapon and refusing a housing assignment. Dkt. 79-1 at 30. Plaintiff's DOC records show she was retained there only until her infraction hearing was completed and a Facility Plan was finalized for her housing, and she was released to her new housing assignment on April 5, 2021. Id. at 31. There is simply no evidence that plaintiff was kept in administrative segregation due to her transgender status or her inability to reproduce.
Plaintiff likewise submits no evidence demonstrating she was not transferred to a women's facility “by reason of” her transgender identification or her inability to reproduce. Plaintiff's bald statement that the decision was a result of a rigid “sex-based classification system” (Dkt. 75 at 23) is belied by the record. Instead, the evidence demonstrates the committee charged with determining plaintiff's classification and housing assignment considered transferring plaintiff to a women's facility, WCCW. Dkt. 79-1 at 32, 47. However, records of the committee's meeting show plaintiff “state[d] she would like to stay at SCCC,” and ultimately that is what was recommended. Dkt. 79-1 at 44.
Plaintiff has failed to establish her ADA/RA claim; the Court therefore recommends that it be dismissed with prejudice.
H. Breach of Duty
Defendants construe plaintiff's complaint to assert a separate claim for breach of a duty not to violate plaintiff's constitutional rights, and argue it fails as a matter of law because a tort theory of negligence is inapplicable to § 1983 claims. Dkt. 78 at 11-12. Plaintiff did not respond to defendants' argument.
It is not clear whether the complaint is, in fact, attempting to allege a breach of duty claim. However, to the extent such a claim can be inferred from the complaint, it appears plaintiff has abandoned it. In any event, defendants are correct that negligence theories do not apply to claims brought under § 1983. Daniels v. Williams, 474 U.S. 327, 332-33 (1986).
I. Qualified Immunity
Because the Court recommends dismissal on different grounds, it does not reach defendants' argument that plaintiff's damages claims should be dismissed on qualified immunity grounds.
J. John Doe Defendants
Finally, plaintiff's Second Amended Complaint names two “John Doe” defendants who have not been identified or served. Dkt. 56 at 5. On April 22, 2021, the Court warned plaintiff that if these defendants were not identified and served, they would be subject to dismissal:
Plaintiff has also named “John Doe” and “Jane Doe” as defendants. Dkt. 53 at 5. Plaintiff is cautioned that the use of “John Doe” or “Jane Doe” to identify a defendant is not favored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Although a plaintiff may be given an opportunity after filing a lawsuit to discover the identity of unknown defendants through discovery, the use of Doe defendants is problematic because those persons cannot be served with process until they are identified by their real names. If plaintiff does not provide the names of the defendants identified as Jane/John Doe so that they can be served within 90 days of this order, they may be subject to dismissal. Fed.R.Civ.P. 4(m).Dkt. 57 at 2-3. Plaintiff has not identified the Doe defendants and more than 90 days have passed since her Second Amended Complaint was filed. The Court therefore recommends that the “John Doe” defendants be dismissed without prejudice. Fed.R.Civ.P. 4(m).
CONCLUSION
For the above stated reasons, the Court recommends defendants' motion for summary judgment (Dkt. 78) be granted and plaintiff's motion for summary judgment (Dkt. 75) be denied. The Court recommends plaintiff's claims against the John Doe defendants be dismissed without prejudice, her claims against all remaining defendants be dismissed with prejudice, and this case be closed. The Court further recommends that to the extent plaintiff is bringing a claim pursuant to RCW 72.09.135, supplemental jurisdiction be declined.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on May 13, 2022 as noted in the caption.