Entler v. Gregoire et al, No. 2:2012cv05141 - Document 77 (E.D. Wash. 2013)
Court Description: ORDER Denying (ECF No. 65 ) Motion for Reconsideration Signed by Senior Judge Lonny R. Suko. (LS, Courtroom Deputy)
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Entler v. Gregoire et al Doc. 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON JOHN THOMAS ENTLER, ) ) Plaintiff, ) ) vs. ) ) ) CHRISTINE GREGOIRE, et al., ) ) ) Defendants. ) ______________________________ ) No. CV-12-5141-JPH ORDER DENYING MOTION FOR RECONSIDERATION BEFORE THE COURT is the Plaintiff’s Motion For Reconsideration 15 (ECF No. 65). The motion is heard without oral argument at the court’s 16 discretion pursuant to LR 7.1(h)(3)(B)(iii). 17 Plaintiff asks the court to reconsider its October 15, 2013 “Order 18 Adopting Report And Recommendation” of Magistrate Judge Hutton (ECF No. 19 61). While that order considered the objections to the report and 20 recommendation filed by Plaintiff (ECF No. 59), it did not consider the 21 objections filed by Defendants (ECF No. 60). Recognizing such, the Plaintiff 22 has, along with his Motion For Reconsideration, filed a response to the 23 Defendant’s objections to the Report and Recommendation (ECF No. 66). The 24 undersigned has considered the Defendant’s objections in ruling on the 25 Plaintiff’s Motion For Reconsideration. The undersigned has also considered 26 Plaintiff’s reply filed in conjunction with his Motion For Reconsideration. 27 28 ORDER DENYING MOTION FOR RECONSIDERATION- 1 Dockets.Justia.com 1 That reply (ECF No. 76) was filed on December 16, 2013. 2 Magistrate Judge Hutton found that Plaintiff’s sending of kites amounted 3 to an “act of filing informal ‘grievance’ materials” which constitutes “protected 4 conduct for the purposes of [Plaintiff’s] retaliation claim.” (ECF No. 57 at pp. 5 5-7). It is apparent to the undersigned, however, that Plaintiff’s kites were not 6 part of the grievance process. A kite is not an informal grievance which is 7 “filed.” A kite may be part of an “informal resolution” which precedes the 8 grievance process, but the grievance process only commences at “Level 1" 9 when a formal grievance- “a typed, formalized version of a complaint”- is filed 10 with the grievance coordinator. (ECF No. 5-2 at pp. 40-41)(Emphasis in 11 original). Plaintiff was not required to send kites and letters to prison staff in 12 lieu of filing a formal grievance with the grievance coordinator. 13 Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009) is not to the contrary. In 14 Brodheim, the plaintiff’s “interview request- a challenge to an adverse ruling 15 on his complaint- was part of the grievance process, and was thus protected 16 activity.” Id. at 1271, n. 4. This interview request came one month after the 17 plaintiff had initiated the grievance process by filing an administrative 18 grievance. Id. at 1265. Here, Plaintiff’s kites preceded the grievance process 19 and therefore, were not protected activity pursuant to which a First Amendment 20 retaliation claim can be brought. Instead of presenting his complaints to a 21 grievance coordinator, Plaintiff communicated his complaints and his 22 accompanying threats of legal action directly to the staff members who he 23 believed had wronged him. In this particular context, there is clearly a valid, 24 rational connection between a prison regulation which forbids using physical 25 force, intimidation or coercion against prison staff and a correctional 26 institution’s legitimate penological interest in the “peaceable operation of the 27 28 ORDER DENYING MOTION FOR RECONSIDERATION- 2 1 prison through the insistence on respect.” Bradley v. Hall, 64 F.3d 1276, 1281- 2 82 (9th Cir. 1995). 3 Even assuming Plaintiff’s kites constituted protected activity, his 4 retaliation claim still fails. Magistrate Judge Hutton correctly found the 5 defendants are entitled to qualified immunity. While the Plaintiff has a clearly 6 established constitutional right to file prison grievances, he does not have a 7 clearly established right to level threats against prison staff members. It is true 8 the Ninth Circuit has “previously held that disrespectful language in a 9 prisoner’s grievance is itself protected activity under the First Amendment.” 10 Brodheim, 584 F.3d at 1271, citing Bradley, 64 F.3d at 1281-82 (holding that 11 “prison officials may not punish an inmate merely for using ‘hostile, sexual, 12 abusive or threatening’ language in a written grievance”). Bradley, however, 13 was criticized by the U.S. Supreme Court in Shaw v. Murphy, 532 U.S. 223, 14 121 S.Ct. 1475 (2001). The Supreme Court disapproved of that portion of the 15 Ninth Circuit’s analysis in Bradley where it “balance[d] the importance of the 16 prisoner’s infringed right against the importance of the penological interest 17 served by the rule” and found that as applied to the content of formal written 18 grievances, the rule impermissibly “substantially burdened” prisoners’ right of 19 access to the courts. Shaw, 532 at 230-31, quoting Bradley, 64 F.3d at 1280. 20 The Supreme Court concluded that Turner v. Safley, 482 U.S. 78, 107 S.Ct. 21 2254 (1987), does not permit increasing constitutional protection based on the 22 content of the communication because Turner does not accommodate 23 valuations of content. Id. at 231, citing Turner. (Emphasis added). On the 24 contrary, the Turner factors concern only the relationship between the asserted 25 penological interests and the prison regulation.” Id. at 230. 26 27 28 In Helm v. Hughes, 2011 WL 476461 (W.D. Wash. 2011), the plaintiff, ORDER DENYING MOTION FOR RECONSIDERATION- 3 1 an inmate at the McNeil Island Corrections Center, brought a lawsuit claiming 2 he had been subjected to disciplinary punishment in retaliation for his good 3 faith participation in the grievance program. The plaintiff was infracted for 4 violation of Washington Administrative Code (WAC) 137-25-030(506)- 5 threatening another with bodily harm or with any offense against another 6 person, property, or family- and sanctioned for a threat contained in the 7 grievance filed by him. The plaintiff maintained he was wrongly disciplined 8 because the language contained in the grievance was not a direct threat. In her 9 report and recommendation, the Magistrate Judge noted: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shaw instructs . . . that the court’s focus must be content neutral. Prison officials are to remain the primary arbiters of the problems that arise in prison management. If courts were permitted to enhance constitutional protection based on their assessments of the content of the particular communications, courts would be in a position to assume a greater role in decisions affecting prison administration. [Citation omitted]. Thus, this court will not second guess prison officials’ determination that the language contained within Mr. Helm’s grievance contained a threat. The issues here are whether the prison regulation at issue is “reasonably related” to legitimate penological objectives and whether there is a genuine dispute that prison officials acted unreasonably in applying the prison regulation to Mr. Helm’s written grievance. [Citations omitted]. 2011 WL 476461 at *4. Applying the Turner factors, the Magistrate Judge concluded there was a valid, rational connection between WAC 137-35-030(506) and legitimate government interests: “Whether written or spoken, there is clearly a rational connection between the regulation of prohibiting inmates from threatening and coercing persons and the legitimate interest of maintaining order in institutions.” Id. at *7. The same is true in the instant case with regard to the infractions of which Plaintiff was found guilty: WAC 137-25-030(663)- using 26 27 28 ORDER DENYING MOTION FOR RECONSIDERATION- 4 1 physical force, intimidation or coercion against any person, and WAC 137-28- 2 220(202)- abusive language, harassment or other offensive behavior directed to 3 or in the presence of staff. 4 In Helm, the Magistrate Judge noted there was no evidence the plaintiff 5 was prohibited from filing grievances and indeed, acknowledged the plaintiff 6 was disciplined because of the content of his grievance. The regulation 7 constrained only the nature of the language the plaintiff chose to include in his 8 grievances and he was free to file a grievance that did not include a threat. Id. 9 The same is true in the instant case. Plaintiff was not prohibited from filing 10 grievances against the prison staff members he claims wronged him. He was 11 disciplined because of the content of his kites. WAC 137-25-030(663) and 12 WAC 137-28-220(202) constrained him only as to the nature of the language 13 he chose to use. 14 The Magistrate Judge in Helm went on to consider whether application 15 of the regulation to plaintiff’s grievance was reasonable. She concluded it was 16 reasonable: 20 Mr. Helm argues he did not intend his words to be viewed as a threat. However, it is not up to this court (or a jury) to guess what Mr. Helm might have been thinking when he wrote his grievance. Even if the court accepted that Mr. Helm did not intend a threat, it is not this court’s role to suggest to prison officials that an alternative interpretation may exist. 21 ... 22 Unlike the inmate in Hargis [v. Foster, 312 F.3d 404 (9th Cir. 2002)], there is no issue of material fact here as to what Mr. Helm said. He wrote what he wrote. Whether he intended to threaten Correctional Officer Benge is not material to this analysis. What is material is that there exists a regulation to prohibit threatening language, the regulation is constitutional because it has legitimate penological purposes, and prison officials reasonably determined that the regulation should be 17 18 19 23 24 25 26 27 28 ORDER DENYING MOTION FOR RECONSIDERATION- 5 applied to the words contained in Mr. Helm’s grievance. Grievance Specialist Hughes believed that the language constituted a threat. He sent the grievance on to Superintendant [sic] Van Boening, who agreed that the words constituted a threat. Mr. Hughes then instituted the infraction process and the infraction was upheld in a disciplinary hearing by Hearings Officer Janet Gaines and Superintendent Designee Sean Murphy. The court concludes they did not act unreasonably in applying the regulation to Mr. Helm’s written grievance. 1 2 3 4 5 6 7 8 9 Id. at *8. Similarly here, the application of WAC 137-25-030(663) and WAC 13728-220(202) to Plaintiff’s kites was reasonable. These regulations are 10 constitutional because they serve legitimate penological purposes, and prison 11 officials reasonably determined the regulations applied to the words used in 12 Plaintiff’s kites. 13 In Helm, the Magistrate Judge concluded the defendants had not violated 14 the plaintiff’s constitutional rights, recommended that summary judgment be 15 granted on his retaliation claims, and found it was unnecessary to address 16 whether qualified immunity should be applied. Id. at *9-10. Her 17 recommendation was subsequently adopted by the district judge. 2011 WL 18 462567 (W.D. Wash. 2011). Magistrate Judge Hutton too would have been 19 justified in finding no violation of Plaintiff’s constitutional rights, but he 20 correctly concluded there is “no clearly established right entitling a prison 21 inmate to communicate threats in writing to prison staff in the form or guise of 22 grievances or otherwise” and therefore, that Defendants are entitled to qualified 23 immunity. (ECF No. 57 at pp. 12-13). 24 The Ninth Circuit’s decision in Brodheim did not erase the Supreme 25 Court’s criticism in Shaw of the Ninth Circuit’s decision in Bradley. This 26 criticism was noted not only by the Magistrate Judge in Helm, but also by 27 28 ORDER DENYING MOTION FOR RECONSIDERATION- 6 1 Ninth Circuit Judge Tallman in the dissenting opinion he filed in Hargis v. 2 Foster, 312 F.3d at 413-416. Judge Tallman disagreed with the majority 3 opinion which he described as effectively “mandat[ing] that a jury be allowed 4 to determine how coercive and dangerous Hargis’s speech was.” Id. at 413. 5 The Hargis case involved a factual situation bearing significant resemblance to 6 the case before this court, described in Judge Tallman’s dissenting opinion as 7 follows: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Prisons exist in order to maintain order over those who have demonstrated that they are incapable of following the rules established by society. Coercion undermines that effort. Prisoners have alternative means of exercising their rights, such as by filing a written grievance rather than directing comments personally to guards. Allowing inmates such as Hargis to personally threaten or warn guards like Beauchamp to evade compliance with legitimate institutional rules would have a dramatic effect on prison life- prisoners would be quicker to verbalize and attempt to intimidate guards, and guards would have to attempt to guess what a prisoner really meant every time a prisoner made a veiled threat. Finally, the government has few alternatives in this sort of situation. Prison officials must maintain order if they are to remain in control. The written grievance procedure available here accommodates prisoner’s rights while preventing direct confrontations between guards and prisoners. It is not our job, or that of a jury, to guess what Hargis might have meant or might have been thinking when he verbally warned Beauchamp that if he forced Hargis to shave with a safety blade Beauchamp’s action would be subject to court review. Prison officials conducted a disciplinary hearing and determined that those words represented coercion. It is not the legitimate role of a federal court to suggest to the warden and his officers that there is an alternative interpretation, that prison officials may have been wrong, and that a jury should determine the truth. ... We simply do not analyze a prisoner’s First Amendment rights the way we would the First Amendment rights of a law-abiding citizen. Prisoners sacrifice many of their freedoms as proper punishment for their crimes. Whether ORDER DENYING MOTION FOR RECONSIDERATION- 7 1 2 3 4 5 6 7 inmate Hargis actually intended to threaten or coerce correctional officer Beauchamp does not matter. What does matter is that the Idaho Correctional Institution in Orofino had a necessary regulation designed to prohibit coercion; the regulation is clearly constitutional because it has a legitimate penological purpose; and prison officials reasonably determined that Hargis sought to coerce Officer Beauchamp. This determination was certainly within the “broad discretion” granted prison officials. Id. at 415-16. (Emphasis in original). Plaintiff Entler was entitled to file a formal grievance with the grievance 8 coordinator seeking to redress the alleged wrongs committed against. He did 9 not file such a grievance. Instead, he sent kites directly to the prison staff he 10 asserted had wronged him, threatening them with lawsuits, criminal charges, 11 and arrest. Even assuming these kites constituted grievances, Plaintiff was not 12 retaliated against for petitioning for a redress of his grievances; instead, he was 13 punished for making threats in those kites. Unlike the act of petitioning for 14 redress of grievances, those threats are not protected activity. The Plaintiff has 15 a right to petition for redress of grievances, simply stating in a non-threatening 16 fashion what the alleged problem is and how it can be corrected. Nothing 17 precluded Plaintiff from filing a formal grievance with the grievance 18 coordinator seeking a remedy for the wrongs alleged by him. He may not, 19 however, abuse the process. If he does so, he is subject to punishment without 20 infringing on his right to petition for redress of grievances. Defendants 21 correctly point out that “[a]lternative ways to communicate to staff remain open 22 because inmates can use the grievance process or can write letters and kites that 23 do not attempt to intimidate staff.” 24 Here too, in this litigation, Plaintiff seeks to operate outside of the 25 established process by sending letters to the Chief Judge of this district, the 26 Chief Judge of the Ninth Circuit Court of Appeals, the Chief Justice of the 27 28 ORDER DENYING MOTION FOR RECONSIDERATION- 8 1 United States Supreme Court, the U.S. Department of Justice, and the 2 American Civil Liberties Union (ECF Nos. 63, 64, 67 and 68), threatening to 3 file criminal charges against court personnel, instead of simply presenting his 4 legal arguments to this court in his Motion For Reconsideration, and hereafter 5 to the Ninth Circuit Court of Appeals and potentially to the United States 6 Supreme Court. Plaintiff has a right to send these letters, they have been filed 7 of record, and they have no bearing on this court’s analysis of the proper legal 8 argument presented in Plaintiff’s Motion For Reconsideration. In the prison 9 context, however, threatening letters are subject to infraction by prison 10 authorities in the interests of institutional order and security. A Fed. R. Civ. P. 59(e) motion to alter or amend can only be granted 11 12 when a district court: (1) is presented with newly discovered evidence; or (2) 13 committed clear error or the initial decision was manifestly unjust; or (3) there 14 has been an intervening change in controlling law. Dixon v. Wallowa County, 15 336 F.3d 1013, 1022 (9th Cir. 2003). This court did not commit clear error in 16 adopting the Magistrate Judge’s report and recommendation and that decision 17 is not manifestly unjust. Accordingly, Plaintiff’s Motion For Reconsideration 18 (ECF No. 65) is DENIED. The court will entertain no additional motions for 19 reconsideration and Plaintiff’s next recourse is an appeal to the Ninth Circuit. 20 Because the Plaintiff is not proceeding in forma pauperis, this court need not 21 certify whether an appeal is taken in good faith. 22 // 23 // 24 // 25 // 26 // 27 28 ORDER DENYING MOTION FOR RECONSIDERATION- 9 1 IT IS SO ORDERED. The District Executive shall forward a copy of 2 this order to Plaintiff, to counsel for Defendant, to Magistrate Judge Hutton, 3 and to Chief Judge Peterson. 4 DATED this 19th of December, 2013. 5 s/Lonny R. Suko 6 7 LONNY R. SUKO Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING MOTION FOR RECONSIDERATION- 10
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