Opinion
Civil No. 03-CV-0634-WQH (PCL).
September 27, 2005
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Gerry Williams ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed a Complaint pursuant to Title 42, United States Code, section 1983. In his Complaint, Plaintiff seeks compensatory and punitive damages against correctional officer Diaz ("Defendant"), alleging she violated his First Amendment rights under the United States Constitution by denying him access to the prison grievance system when she did not answer a prison grievance complaint he filed against her, and retaliating against him for filing the prison grievance.
Defendant Diaz moves for Summary Judgment. On February 25, 2005, Magistrate Judge Peter C. Lewis issued a Report and Recommendation ("RR") that recommended this Court deny in part and grant in part Defendant Diaz's Motion for Summary Judgment. The parties were permitted to file Objections to the RR no later than April 22, 2005. On April 22, 2005, Defendant filed Objections to the RR. On May 10, 2005, Plaintiff filed a Reply to Defendant's Objections.
The parties were permitted to file objections to the RR no later than March 22, 2005. see RR, p. 24. However, the Court granted Defendant's request for extension of time to file Objections to the RR.
BACKGROUND
The Court incorporates by reference the factual and procedural background set forth in the RR. However for purposes of clarity, the Court summarizes the factual and procedural background below.
The dispute arises out of an incident that occurred at Centineal State Prison, where Plaintiff is incarcerated and where Defendant works as a "property officer" (who's duty is to bring inmates their property). On August 29, 1999, while Plaintiff was confined to administrative segregation, he requested his property be brought to him. However, Defendant refused to bring Plaintiff his property because he was in administrative segregation. Plaintiff complained to Defendant's supervisor, Sargent Pollard, who informed Plaintiff that he was ineligible to receive his property until his release from administrative segregation. Allegedly Plaintiff filed an Inmate Grievance Complaint (using California Department of Corrections "CDC" Form #602) against Defendant which went unanswered. Plaintiff then filed a complaint with Lieutenant Pinson, supervisor to both Officer Diaz and Sergeant Pollard, who ordered Defendant to deliver Plaintiff his property.
According to Plaintiff, Defendant still failed to deliver his property, despite the fact he was ordered to do so and despite the fact that Plaintiff's property was situated on Defendant's delivery cart. Plaintiff did not receive his property until his release from administrative segregation whereupon Plaintiff alleges that his prescription eyeglasses were broken and two legal books were missing. Plaintiff alleges the lost and broken property and the refusal to deliver the property were retaliatory acts by Defendant for Plaintiff having filed a CDC complaint against him.
In his Complaint, Plaintiff seeks compensatory and punitive damages against Defendant, alleging she violated his First Amendment rights by denying him access to the prison grievance system when she did not answer the prison grievance complaint he filed against her, and by retaliating against him for filing the prison grievance.
LEGAL STANDARD
The duties of the district court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
When no objections are filed, the district court may assume the correctness of the Magistrate Judge's factual findings and decide the motion on the applicable law. see Campbell v. United States Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989).
DISCUSSION
On February 25, 2005, Magistrate Judge Peter C. Lewis issued a RR regarding Defendant's Motion for Summary Judgment. RR, p. 2. Specifically, the RR recommended granting Defendant's Motion for Summary Judgment regarding Plaintiff's (1) access to courts claim pursuant to Fed.R.Civ.P. 56(e); (2) claim for punitive damages pursuant Fed.R.Civ.P. 56(e); and (3) due process claim for property damage pursuant to Fed.R.Civ.P. 56(e). Id. at p. 18, 19, 22, 23. The Magistrate recommended denying Defendant's Motion for Summary Judgment regarding (1) the retaliation claim for failure to exhaust; (2) the Statue of limitation claim pursuant to Fed.R.Civ.P. 56(e); (3) the retaliation claim pursuant to Fed.R.Civ.P. 56(e); and (4) Defendant's qualified immunity claim pursuant to Fed.R.Civ.P. 56(e). Id. at p. 8, 11, 14, 16, 21, 23. Defendant filed Objections to the RR, which are addressed below. I. Defendant's Objections
The Defendant Objected to the RR on two grounds. Defendant argues that (1) Plaintiff failed to exhaust his administrative remedies in regard to the retaliation claim; and (2) Plaintiff is barred from bringing the claim by the statue of limitations. See Def's Objections. The Court will discuss each of Defendant's objections in the following analysis.
A. Exhaustion of Plaintiff's Retaliation Claim Pursuant to 42 U.S.C. § 1997e(a)
Defendant moves for Summary Judgment contending Plaintiff has failed to exhaust his administrative remedies as to the retaliation claim. The general rule, however, in the Ninth Circuit is that "failure to exhaust non judicial remedies is a matter in abatement, not going to the merits of the claim, and as such is not properly raised in a motion for summary judgment." Ritza v. Int'l Longshoremen's Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988); see also Stauffer Chem. Co. V. FDA, 670 F.2d 106, 108 (9th Cir. 1982). Thus, when a defendant files a summary judgment motion that raises the issue of administrative exhaustion, the motion should be treated as a "nonenumerated" motion to dismiss under Fed.R.Civ.P. 12(b). Ritz, 837 F.2d at 368-369. Accordingly, the Court will adopt the Magistrate's finding that the Defendant's Motion for Summary Judgment be construed as a Motion to Dismiss. Since, the Court will construe the Summary Judgment as a Motion to Dismiss on this claim only, the legal standard is discussed below.
1. Legal Standard
Rule 12(b) of the Federal Rules of Civil Procedure provides that on a motion to dismiss for failure to state a claim courts cannot consider matters outside the complaint. Fed.R.Civ.P. 12(b) (West 2001). However, for "nonenumerated" Rule 12(b) motions the standard varies somewhat. Courts considering "nonenumerated" Rule 12(b) motions on the issue of administrative exhaustion may not only rely on matters outside the pleadings but also have broad discretion to resolve any factual disputes. Ritza, 837 F.2d at 369.
2. Exhaustion Claim
Defendant contends the Plaintiff failed to exhaust all available administrative remedies for his retaliation claim within the CDC's administrative appeal system prior to filing suit pursuant to 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1995 (" PLRA"). Def.'s Objection, p. 4. Section 1997e(a) states that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Accordingly, the Court must determine whether the Plaintiff failed to exhaust the administrative remedies made available to him by the CDC.
In the Objections to the RR, Defendant contends that Plaintiff has only exhausted his property damage claim and not his retaliation claim, because there was no mention of a retaliation claim until the director's level of appeal. Def's Objection, p. 6. The Defendant alleges that Plaintiff's retaliation claim did not run congruent with the property damage claim, and that the Magistrate was wrong in holding that the retaliation claim has been exhausted because it ran concurrently with the initial property damage claim. Id. Further, Defendant argues that the RR was wrong in relying on Butler v. Adams, 397 F.3d 1181 (9th Cir. 2005), and Irwin v. Zamora, 161 F. Supp.2d 1125 (S.D. Cal. 1999), because, according to Defendant, these cases only cover circumstances in which the identities of individuals are not specifically mentioned. According to Defendant, the case law in Butler and Irwin is not applicable because the issue in this case is whether specific claims were left out, not the identify of individuals. Id. Finally, the Defendant contends that the Magistrate erred in analyzing the law set forth in Gomez v. Winslow, 177 F. Supp.2d 1977 (N.D. Cal. 2001), because, allegedly, Gomez stands for the proposition that separate claims require separate exhaustion in the administrative process. Id. Further argued is that the instant situation does not conform to the law laid out in Gomez because Plaintiff did not separately exhaust the retaliation claim. The Court will review each of these arguments in turn.
The administrative appeal system in the State of California provides its inmates and parolees the right to administratively appeal "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." 15 Cal. Code Regs., § 3084.1(a). Before filing in federal court, a prisoner must exhaust all available administrative prison grievance procedures. 42 U.S.C. § 1997e(a). In order to exhaust administrative remedies, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the CDC or the Director's designee. Id., § 3084.5. The third or Director's Level decision, "shall be final and exhausts all administrative remedies available in the [CDC]." See Cal. Dep't of Corrections Operations Manual, § 54100.11 ("Levels of Review"); see also Barry v. Ravelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997); Irvin v. Zamora, 161 F. Supp. 2d 1125, 1129 (S.D. Cal. 2001) (describing the administrative exhaustion process in California).
The Ninth Circuit has held that there are two principal policies behind the administrative exhaustion rule: (1) to protect the administrative agency's authority by giving it the first opportunity to resolve a controversy before a court intervenes in the dispute; and (2) to promote judicial efficiency by either resolving the dispute before a court intervenes, or by producing a factual record that assists the court in resolving the case. Ngo v. Woodford, 403 F.3d 620, 624 (9th Cir. 2005).
Few courts have addressed the specificity required for claims raised in the prison administrative grievance process to satisfy the exhaustion of remedies under 42 U.S.C. § 1997e(a). However, it is well established that the PLRA precludes a prisoner from bringing any action without first exhausting all available administrative remedies. 42 U.S.C. § 1997(e); see also Booth v. Churner, 532 U.S. 731 (2001). "When multiple prison condition claims have been joined, the plain language of section 1997e(a) requires that all available prison grievance remedies be exhausted as to all of the claims." Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000). However, in analogous circumstances the Ninth Circuit has held that a prisoner is not required to specifically list each defendant in his prison grievance in order to exhaust available administrative remedies under section 1997e(a). See Butler v. Adams, 397 F.3d 1181 (9th Cir. 2005). In Butler, a blind inmate filed a prison grievance form but did not specifically mention every defendant. Several defendants moved to dismiss claiming that plaintiff had not exhausted all his administrative remedies, but the court held that where an inmate has satisfied the purpose of the exhaustion requirement, he is not required to list every defendant in his prison grievance in order to satisfy the PLRA standards. Id.
Further, the Northern District of California has held that a prisoner is not required to specifically list each claim in his prison grievance in order to exhaust available administrative remedies under section 1997e(a). See Gomez v. Winslow, 177 F. Supp.2d 977, 983 (N.D. Cal. 2001); see also Irvin v. Zamora, 161 F. Supp.2d 1130. In Gomez, plaintiff filed a section 1983 action based on three claims of inadequate medical care. Id. at 981. The defendant filed a summary judgment motion for failure to exhaust each of the three claims, but the court held when the claims are so closely related and one of them have been exhausted a prisoner need not separately exhaust each claim. Id. at 982. The court further held that the defendant's argument would be better suited in a case where the causes of action were completely unrelated. Id. Thus a "claimant is not required to provide the agency with a preview of his lawsuit by reciting every possible theory of recovery or every factual detail that might be relevant. A claim can put an agency on notice of facts it should discover during its investigation of the claim." Id. at 983 ( quoting Sheptin v. U.S., et al., 2000 WL 1788512 (N.D. Ill. 2000)).
Similarly in Irvin, the court held where a prisoner's grievance presents the relevant factual circumstances giving rise to potential claims, the basic purposes of the exhaustion requirements have been fulfilled. Irvin, 161 F. Supp.2d at 1135. The court held "[a]s long as the basic purposes of exhaustion are fulfilled, there does not appear to be any reason to require a prisoner plaintiff to present fully developed legal and factual claims at the administrative level." Id. The court partially based its decision on the Ninth Circuit's requirement that the pleadings of pro se plaintiffs be construed liberally and be given the benefit of the doubt. Id. (citing Klingele v. Eikenberry, 849 F.2d 409, 413 (9th Cir. 1988). The court further held that "[w]ithout further guidance from the Supreme Court or the Ninth Circuit on the standard that should be applied", a plaintiff satisfies the exhaustion requirement if his grievances are sufficient to put prison officials on notice of possible claims. Id.
In the instant case, Defendant argues that because there was no specific mention of any retaliation claim in Plaintiff's 602 complaint the exhaustion element required by the CDC has not been met. In support of his Motion to Dismiss, Defendant points to Ex. A to the Complaint were Plaintiff grieves that his property was damaged, noting there was no mention of retaliation. Def's Objection, p. 4. Defendant argues that Plaintiff did not satisfy the exhaustion requirement because the retaliation claim was added merely as an afterthought in the final review process. Id.
As Defendant points out, it is true that Plaintiff did not specifically mention the retaliation claim until the director's level of review. However, Plaintiff's Complaint did present the relevant factual circumstances giving rise to potential claims. The allegations made were sufficient to put Defendant on notice of Plaintiff's possible grievances. Further, Defendant did have specific notice of the retaliatory claim at the Director's level of appeal, whereupon the issue could have been addressed. The basic purpose of the exhaustion requirement is to give an administrative agency the first opportunity to resolve a controversy before a court intervenes in the dispute. Ngo, 403 F.3d at 624. Here, the administrative agency and the Defendant had an opportunity to resolve the controversy. There is no evidence that prison officials would have done anything different had Plaintiff specifically mentioned a retaliatory claim in his first 602 grievance. As long as the basic purposes of exhaustion are fulfilled and Defendant has been put on notice of potential claims, there is no reason to require the Plaintiff to specifically allege all possible legal claims in his initial complaint. Irvin, 161 F. Supp.2d at 1135.
The Defendant further argues that the case law laid out is Butler and Irwin is not applicable to this case because those cases specifically address the issue of exhaustion when individuals are omitted, not claims. Def's Objection, p. 6. Defendant also claims, unlike those cases, that Plaintiff has failed to detail the relevant factual circumstances giving rise to potential claims. Def's Objection, p. 7. However, Defendant has misconstrued the principles underlying the holdings in Butler and Irwin. If Plaintiff's grievances are sufficient under the circumstances to put the Defendant on notice of potential claims, then the basic purposes of the exhaustion requirements are fulfilled. Gomez, 177 F.Supp. 2d at 982. Here, Mr. Williams clearly stated at the director's level that his property was broken in retaliation for the filing of a 602 complaint. Complaint, p. 14. Thus, the Court finds that the Defendant had notice of the retaliation claim. The Court holds that Plaintiff's 602 complaint should be read liberally and finds that the exhaustion requirement has been fulfilled.
Defendant also argues that Gomez mandates separate exhaustion in the administrative process for the retaliatory and property damage claims because they are unrelated. Def's Objection, p. 6. The court in Gomez states that one situation where separate exhaustion would be required is where an inmate filed suit based upon inadequate medical treatment and for failure to protect him from another inmate. Gomez, 177 F. Supp.2d at 982. In the instant case, however, the retaliation claim and property claim are related and do not require separate exhaustion because they arise out of the same transaction or occurrence. Here, the Defendant was put on notice of the possible retaliation claim when Plaintiff filed the property damage claim. The Plaintiff's retaliation claim is so closely intertwined with the property damage claim that for reasons of fairness, the Court finds that separate exhaustion in the administrate process is not required.
Finally, Defendant argues that the RR was wrong in relying on District Court Judge Moskowitz stating "[t]his is not to say, of course, that Plaintiff could not, now that he has exhausted his retaliation claim against Officer Diaz, merely refile this claim in a new and separate civil right action." The Defendant claims that the RR erred because Judge Moskowitz made no examination or findings as to the veracity of exhaustion as to the retaliation claim, since he was deciding a motion to dismiss. However, as stated above, the Court here does find that Plaintiff has exhausted his retaliation claim, and thus this is argument is moot.
Therefore, the Court will adopt the recommendation of the Magistrate in this respect and deny Defendant's Summary Judgement Motion construed by the Court as a Motion to Dismiss on the failure to exhaust claim.
B. Equitable Tolling of the Statue of Limitations
All of the remaining claims are appropriately brought under a Summary Judgment Motion. Thus, the Court will discuss the legal standard for Summary Judgment.
1. Standard of Review for Summary Judgment
"Federal courts are courts of limited jurisdiction . . . It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (citations omitted). On a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, the moving party may rely upon affidavits or other evidence properly before the court. Salmo v. U.S. Dep't of Agric., 226 F.Supp.2d 1234, 1235 (S.D. Cal. 2002) (Battaglia, J.) (citing Ass'n of Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000)). The court may consider these extra-pleading materials and resolve factual disputes, if necessary. Id. "If the moving party produces evidence in support of its motion, the opposing party must then present its own affidavits or other evidence `to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.'" Id. (quoting Ass'n of Am. Med. Colleges, 217 F.3d at 778).
2. Equitable Tolling
Plaintiff concedes that federal action is barred unless equitable tolling applies to his claim because Plaintiff did not bring his action in federal court until after the statue of limitations had run. Pltf's Reply to Def's Objection, p. 8. In actions arising under 42 U.S.C. § 1983, federal courts apply the statute of limitations of the state in which the claim accrued. Wilson v. Garcia, 471 U.S. 261, 269 (1985). In California, the statute of limitations to recover damages in prisoners' section 1983 claims are tolled for a maximum of 2 years from the time when the cause of action accrues, while petitioner is imprisoned for a term less than life. Cal. Code Civ.P. § 352.1(a). After the 2 years, the state's one-year statute of limitations applicable to § 1983 personal injury claims begins to run. Cal. Code. Civ.P. § 340(3).
Here, Plaintiff alleges that the incident occurred on August 29, 1999. Since Plaintiff is serving a term of 25 years to life (which is less than a life sentence considered by § 352.1(a)), the two year tolling period is applicable to his case. Thus, Plaintiff's claims accruing in 1999 would be tolled for two years before California's one-year statute of limitations would begin to run. This required Plaintiff to file this action no later than August 29, 2002. Since Plaintiff did not file his Complaint until April 2, 2003, he is barred by the statute of limitations unless he is entitled to equitable tolling.
Equitable Tolling may be applied when "extraordinary circumstances beyond a prisoner's control" have made it impossible for the petition to be filed on time. Calderon v. U.S. Dist. Ct. (Kelly), 107 F.3d 530, 541 (9th Cir. 1998), citing Alvarex-Machain v. U.S., 107 F.3d 696, 701 (9th Cir. 1996). "The doctrine of equitable tolling focuses on the effect of the prior claim in warning the defendants in the subsequent claim of the need to prepare a defense." Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993). Accordingly, the Court must determine whether equitable tolling of the statute of limitations applies under these circumstances.
Whether the statute is tolled in section 1983 cases is determined by state law not inconsistent with federal policy. See Wilson v. Garcia, 471 U.S. 261, 267 (1985). Under California law, a three prong test must be satisfied to toll the statute of limitations: (1) plaintiff's conduct must have been reasonable and in good faith; (2) defendant must have had timely notice of the claim[s]; and (3) defendant must not be prejudiced by application of the doctrine. Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th Cir. 1998); see also Addison v. State of California, 21 Cal.3d 313, 315 (1978).
Defendant claims Plaintiff is not entitled to equitable tolling because the Complaint discloses no basis on which to infer that equitable tolling would be appropriate. Def's Objection, p. 9. Defendant alleges that Plaintiff has failed to show entitlement to equitable tolling under the "reasonable and good faith" prong laid out in Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th Cir. 1988). Id. Defendant further alleges that Plaintiff's delay in uncovering his retaliation claim was unreasonable and that the lack of an explanation for the delay mandates a finding of bad faith. Def's Objection, p. 9. In Bacon, the court found bad faith when the plaintiff made an effort to string out a court proceeding until the brink of administrative disposition and only then choose to abandon the federal administrative remedy for a judicial remedy under state law. Bacon, 843 F.2d at 374.
In the instant case, however, it is well documented that Plaintiff has diligently pursued his claim through all required procedures and has not tried to string out his case. See RR, p. 12. Following proper procedure at the time, Plaintiff filed a complaint in the district court on February 8, 2000, before the Director's Level decision was rendered. The Department of Corrections rendered its final decision on November 13, 2001, at which point Plaintiff had exhausted his administrative remedies. Id. On December 9, 2002, the district court dismissed Plaintiff's complaint and instructed him to refile. Id. Then only four months after the termination of his previous case by the district court, the Plaintiff filed the instant Complaint. The Court finds that Plaintiff's timely pursuit of his claim is reasonable under the circumstances and has been done in good faith. As stated above, Plaintiff could not bring legal action until all available administrative remedies were exhausted. See 42 U.S.C. § 1997e(a). Thus, the Court finds the circumstances were beyond Plaintiff's control and made it impossible for him to file a timely petition.
Further, the Defendant will not be prejudiced by the application of the equitable tolling of the statute of limitations because Plaintiff's grievances were sufficient under the circumstances to put the Defendant on notice of potential claims. The intent behind the equitable tolling doctrine is to avoid forfeitures and allow good faith litigants their day in court. Bacon, 843 F.2d at 375 (quoting Addison v. State of California, 21 Cal.3d 213, 320-21 (1978)). Thus, it would be consistent with federal policy to apply equitable tolling in this case.
Accordingly, the Court agrees with the RR and concludes that Defendant's Motion for Summary Judgment as to the Statute of Limitations issue must be Denied.
II. Recommendations of which Neither Party Objected
The RR recommends that Summary Judgment be granted regarding Plaintiff's access to courts claim, Defendant's due process claim for property damage, and regarding Plaintiff's claim for punitive damages. RR, p. 19, 20, 23. The RR also recommends that Summary Judgment be denied regarding Plaintiff's retaliation claim, and regarding Defendant's qualified immunity claim. RR, p. 17, 22, 23. Neither party filed Objections to these recommendations. Thus, the Court will accept as true the facts as stated in the RR and review the conclusions of law de novo. See Barilla, 886 F.2d at 1518. For the reasons articulated below, the Court will adopt the findings set forth in the RR.
A. Plaintiff's Claim of Denial of Access to the Courts
Plaintiff claims that Defendant denied him access to the prison grievance system by not responding to his first grievance complaint. Plaintiff further argues that he was denied access to the courts because he made clear to Defendant that he had an upcoming court date and he needed his materials to meet this date. Defendant contends that Plaintiff did not suffer any actual injury as a result of the failure to answer the first inmate grievance filed by Plaintiff. The RR states that Plaintiff failed to show why or how Defendant's action of not answering Plaintiff's first prison grievance resulted in any actual or specific injury such that he was denied access to the courts. RR, p. 19. The Report and Recommendation correctly recommends that Summary Judgment regarding Plaintiff's Denial of Access to the court claim against Diaz be granted.
Prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817 (1977). The Supreme court has held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons who are trained in the law." Id. at 828. The Court significantly limited Bounds in Lewis v. Casey, 518 U.S. 343 (1996).
In Lewis, the Supreme Court held that a prisoner alleging a Bounds violation must show "actual injury." Lewis, 518 U.S. at 349. Thus, to establish a claim of inadequate access to the courts under Bounds, an inmate must show he has been unable to file a complaint or has had a complaint dismissed because of some hindrance. Id. at 351. An inmate must establish a specific instance in which he was denied the necessary tools to litigate and as a result was frustrated or impeded as to a nonfrivolous attack on either his sentence or the condition of his confinement. Id. at 353. This constitutional prerequisite not only ensures "serious and adversarial treatment," but also "keeps the courts within certain traditional bounds vis-a-vis the other branches, concrete adverseness or not." Id. at 352-53 n. 3. However, the right of access to the courts is limited to non-frivolous direct criminal appeals, habeas corpus proceedings, and § 1983 actions. Id. at 353 n. 3 354-355; see also Mandrid v. Gomez, 190 F.3d 990 (9th Cir. 1999); Sands v. Lewis, 886 F.2d 1166 (9th Cir. 1990).
Moreover, the Supreme Court has held that in order to state a claim for a deprivation of a constitutional right to access to the courts a plaintiff must allege: (1) an underlying cause of action which should be adequately described in the complaint, and (2) the actions by official that caused the denial of access to the courts. Christopher v. Harbury, 536 U.S. 403, 415 (2002). The Court stated that it is required the predicate claim be described well enough to apply the "nonfrivolous" test and to show that the arguable nature of the underlying claim is "more than hope." Id. at 416. The "actual injury" requirement can not be satisfied by broadly claiming that a "nonfrivolous" action has been dismissed as the result of the actions of a government official. Instead, a complaint needs to contain allegations "sufficient to give fair notice to a defendant." Id. At 417
The Court finds that the RR correctly states that Plaintiff has failed to produce any evidence of how or why Defendant's failure to answer his complaint resulted in any actual injury such that he was denied access to the prison grievance system or the courts. RR, p. 19. Plaintiff claims that Defendant failed to answer a prison grievance he filed against her, but fails to show actual injury in that he missed a court deadline or that his case was dismissed as a result. Plaintiff does claim that a pleading he submitted to the court months after the event was denied as a result of Defendant's actions, and that he would have been meritorious. RR, p. 19. However, there is no evidence in the record to indicate that Defendant's action caused Plaintiff's pleading to be denied and the facts indicate Plaintiff had plenty of time after his release from administrative segregation to draft his motion. The Plaintiff cannot satisfy the actual injury requirement by broadly alleging he would have been meritorious, if he was not denied access to his legal research. The RR states that Plaintiff does not adequately describe the underlying action of which he would have been meritorious. Id. Mere hope of success is not enough to show that the pleading was nonfrivolous. Moreover, the Court finds that the Plaintiff had more than enough time to reconstruct his complaint after his legal material was returned to him and thus was not injured by Defendant's actions. Under the facts before the Court, Plaintiff has failed to show how he was injured by Defendant's action.
Therefore, the Court will adopt the RR and grant Defendant's Motion for Summary Judgment regarding Plaintiff's access to the courts claim pursuant to Fed.R.Civ.P. 56(e).
B. Due Process Claim for Destruction and Loss of Plaintiff's Property
Plaintiff alleges that the deprivation of his property has violated his due process rights. Defendant contends that Plaintiff has no valid due process claim for his property loss in federal court because he must file a state tort action. The RR recommends that this Court find that Plaintiff's due process rights have not been violated because California provides adequate post deprivation remedies in these circumstances. RR, p. 19. The RR correctly recommends granting Summary Judgment regarding any due process property claim by Plaintiff.
The unauthorized, negligent or intentional deprivation of a Plaintiff's property by a law enforcement officer does not result in a violation of procedural due process rights if the State provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 532 (1984). The California Tort Claims Act, Cal. Govt. Code § 810, provides an adequate post-deprivation remedy for the random and unauthorized taking of property. Barnett v. Centoni, 31 F.3d 813, 816-817 (9th Cir. 1994). An inmate may file a state action in tort once he has complied with the claim requirements of the State Board of Control. Id.
In the instant case, Plaintiff's due process rights have not been violated because California provides adequate post-deprivation remedies, which Plaintiff had adequate notice of. Plaintiff was notified at the director's level of review that he could appeal the denial motion of his property damage claim to the State Board of Control. See RR, p. 20. The Court finds Defendant's due process rights have not been violated because it was available for Plaintiff to pursue his property damage claim in a state tort action. Accordingly the Court will adopt the RR, and grant Defendant's Motion for Summary Judgment with regard to Plaintiff's due process claim for deprivation of property.
C. Plaintiff's Claim for Punitive Damages
In his Complaint, Plaintiff requests punitive damages in the sum of $500,000 because allegedly Defendant acted with malicious intent when he deprived Plaintiff of his property. Defendant contends he did not act with the state of mind necessary to justify an award for punitive damages and requests Summary Judgment on the issue. The RR recommends the Court grant Defendant's Motion because it found Defendant's actions do not rise to the level of evil motive nor demonstrates reckless or callous indifference required for a punitive damage award. RR, p. 23. The RR correctly recommends granting Summary Judgment regarding Plaintiff's claim for punitive damages.
The purpose of punitive damages is to punish and to deter a defendant and others from committing similar acts in the future. Model Civ. Jury Instr. 9th Cir. 7.5 (2004). "[S]ociety has an interest in deterring and punishing all intentional or reckless invasions of the rights of others. Smith v. Wade, 461 U.S. 30, 54 (1983). The Court has held that punitive damages are available under 42 U.S.C. § 1983. See Smith v. Wade, 461 U.S. 30, 56 (1983). However, punitive damages are only proper under section 1983 "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Id. Thus, in order for a prisoner plaintiff to recover for punitive damages, he must show Defendant acted with a state of mind that rises to the level of evil intent or reckless indifference. Id.
Here, the evidence fails to show that Defendant acted maliciously or with callous indifference toward Plaintiff's constitutional rights to justify the award of punitive damages. Plaintiff claims that Defendant gave all other inmates their property while denying Plaintiff his property which was situated on the same cart. RR, p. 23. These facts alone do not rise to the level of evil motive or reckless indifference to support punitive damages. The Court finds there is insufficient evidence to support a finding that Defendant acted with the necessary state of mind to support an award of punitive damages.
Accordingly, the Court will adopt the RR and grant Defendant's Motion for Summary Judgment regarding Plaintiff's claim for punitive damages.
D. Retaliation Claim
Plaintiff alleges that Defendant retaliated against him for filing a grievance complaint against her. Specifically, Plaintiff alleges that Defendant's action of failing to hand over Plaintiff's legal material while he was in administrative segregation was retaliatory. Plaintiff further alleges that the return of his broken glasses was the direct result of Defendant's retaliatory actions. Defendant claims that Plaintiff's allegations are merely speculative and points out that Plaintiff has failed to bring forth any evidence to support his claim. The RR states that Plaintiff sufficiently alleged that Defendant's actions were in retaliation for Plaintiff exercising his First Amendment constitutional rights to file a prison grievance and that those actions did not serve a legitimate penological purpose. RR, p. 16. The Report and Recommendation correctly recommends that Summary Judgment regarding Plaintiff's retaliation claim against Defendant be denied.
Retaliation by prison officials against an inmate for exercising a constitutional right is actionable under 42 U.S.C. § 1983. Mt. Healthy City Bd. Of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977). Retaliation, though not expressly referred to in the Constitution, is actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights. Thomas v. Carpenter, 881 F.2d 828, 830 (9th Cir. 1989). However, the plaintiff has the burden of proving that there is a causal connection between the allegedly retaliatory conduct and plaintiff's exercise of his constitutional rights. Mt. Healthy, 429 U.S. at 287. A reviewing court can consider "timing" as circumstantial evidence of retaliatory intent. Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (focusing on the timing of the alleged retaliatory actions as an element in determining whether plaintiff's constitutional rights were violated).
The Ninth Circuit has held that in order for a plaintiff to withstand a motion for summary judgment for a retaliation claim, the plaintiff must allege sufficient facts to create a triable issue of fact as to whether: (1) such retaliation occurred as a result of the prisoner exercising his protected constitutional rights; and (2) the retaliatory actions did not advance a legitimate penological objective. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995).
The Court finds that the RR correctly states that Plaintiff has produced evidence sufficient to create a genuine issue of material fact as to each of these elements. Plaintiff alleges that Defendant retaliated against him for filing a prison grievance complaint against her. The right to petition for redress of grievances is constitutionally protected under the First Amendment. See Soranno's Grasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Since Plaintiff's right to file a grievance complaint is constitutionally protected, the Court finds Plaintiff has satisfied the first prong.
Even if a plaintiff establishes the first element, a plaintiff also "bears the burden of pleading and providing the absence of legitimate correctional goals for the conduct of which he complains." Pratt v. Twoland, 65 F.3d 806 (9th Cir. 1997). Here, Plaintiff alleges that Defendant's refusal to deliver his box of legal material, even after being ordered to do so by his superior officer, was solely an act of reprisal against plaintiff for filing the grievance. Looking at the timing and circumstances surrounding Defendant's action, the Court finds that no reasonable officer would continue to withhold a prisoners's legal materials once ordered by their supervisor to deliver them. Moreover, Defendant does not provide any justification nor offer any penological purpose as to why she did not deliver Plaintiff's material upon being ordered to do so by her superior. Thus, the Court finds Plaintiff has sufficiently alleged that the retaliatory conduct was not done in furtherance of legitimate penological goal to create a triable issue of fact.
Therefore, the Court will adopt the RR and deny Defendant's Motion for Summary Judgment regarding Plaintiff's retalitation claim.
E. Defendant's Claim of Qualified Immunity
Defendant contends that she is entitled to qualified immunity because Plaintiff has failed to substantiate a constitutional right which has been violated by Defendant. The RR states that Defendant is not entitled to qualified immunity because it would be clear to a reasonable officer that it is a constitutional violation to withhold a prisoner's legal materials against orders and in retaliation for an inmate exercising his constitutionally protected rights to file a prison grievance. RR, p. 20. The Court finds that the RR correctly recommends denying Defendant's Motion for Summary Judgment on qualified immunity grounds.
In order to establish a private right of action under 42 U.S.C. § 1983, plaintiff must show that the defendant acted under the color of state law and caused a deprivation of a constitutionally or statutory rights. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Qualified immunity, however, shields § 1983 defendants "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A two part-test determines whether a defendant is entitled to qualified immunity. First, the Court must determine whether "taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194 (2001). If there is no triable issue of whether a constitutional violation occurred, the inquiry ends and the defendant is entitled to qualified immunity. Id. If there is a triable issue as to whether a constitutional right was violated by a defendant's personal action, the second step is to ask "whether the right was clearly established." Id. A constitutional right is clearly established if "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. At 202.
While a § 1983 defendant asserting qualified immunity has the burden of pleading the defense, plaintiff bears the burden of demonstrating the conduct at issue violated a constitutional right that was clearly established when the conduct occurred. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). In determining whether a constitutional right was clearly established, a reviewing court must ask whether the state of the law at the time gave officials "fair warning" that their conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 740 (2002). Unless at the time of the conduct, the law put the defendant on notice that his conduct would be clearly unlawful, the official is entitled to qualified immunity. Saucier, 533 U.S. at 202.
The Supreme Court has held that it is clearly established that prisoners have a constitutional right to access the courts and grievance system. See Bounds v. Smith, 430 U.S. 817, 821). Since the right to file prison grievances is constitutionally protected, the Court finds that Plaintiff has stated enough facts to create a triable issue as to the first prong. Thus the Court must determine whether the constitutional right was clearly established at the time of the alleged retaliatory conduct. At the time of the incident in 1999, the law was clearly established that retaliation for the prisoner's use of the grievance process was unlawful. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995).
In the instant case, the facts in the record indicate that Defendant initially withheld Plaintiff's legal materials acting under a belief that Plaintiff was not entitled to receive them in administrative segregation. However, after Plaintiff filed a complaint with Defendant's supervisor, Defendant was order to deliver Plaintiff his material. Defendant allegedly delivered all other inmates' property located on the delivery cart, but still refused to give Plaintiff his property. A reasonable officer would not continue to withhold a prisoner's property once ordered by his superior to deliver them. Because a reasonable officer would also not believe that retaliatory conduct is sanctioned by the law, the Court finds Plaintiff has raised a genuine triable dispute as to whether the Defendant had reasonable notice that his conduct was unlawful.
Accordingly, under these facts, the Court adopts the RR and denies Defendants Motion for Summary Judgment on qualified immunity grounds.
CONCLUSION ORDER
Having reviewed the Report and Recommendation, the Objections submitted by Defendant, and the entire record, the Court finds that Defendant is entitled to Summary Judgment on the access to the courts claim, on the due process claim for property damages, and on the claim for punitive damages. Additionally, the Court finds that Defendant is not entitled to Summary Judgment on remaining issues. Defendant has failed to show that Plaintiff did not exhaust his administrative remedies. Further Defendant has failed to show that Plaintiff is barred by the statute of limitations and that there is no triable issue on the retaliation claim. Further, Defendant has failed to show that she is entitled to qualified immunity.
Accordingly,
IT IS HEREBY ORDERED the Court ADOPTS the Report and Recommendation.
IT IS FURTHER ORDERED Defendant's Motion for Summary Judgment construed by the Court as a Motion to Dismiss for failure to exhaust be DENIED. IT IS FURTHER ORDERED Defendant's Motion for Summary Judgment as to the statute of limitation claim be DENIED. IT IS FURTHER ORDERED Defendant's Motion for Summary Judgment on Plaintiff's retaliation claim be DENIED. IT IS FURTHER ORDERED Defendant's Motion for Summary Judgment on Plaintiff's access to the courts claim be GRANTED. IT IS FURTHER ORDERED Defendant's Motion for Summary Judgment as to Defendant's Due Process claim for property damage be GRANTED. IT IS FURTHER ORDERED Defendant's Motion for Summary Judgment on Defendant's qualified immunity claim be DENIED. IT IS FURTHER ORDERED Defendant's Motion for Summary Judgment as to Plaintiff's claim for punitive damages be GRANTED.
IT IS SO ORDERED.