(PC) Bridgewater v. Felker et al, No. 2:2007cv02511 - Document 58 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 02/11/10 recommending that defendants' motion for summary judgment 48 be granted. This action be dismissed without prejudice to failure to exhaust available administ rative remedies prior to filing suit. All other pending motions be denied as moot. The clerk of the court be directed to enter judgment of dismissal and close this file. Motions 48 , 56 referred to Judge Frank C. Damrell. Objections due within 20 days. (Plummer, M)
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(PC) Bridgewater v. Felker et al Doc. 58 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH RUBEN BRIDGEWATER, 12 No. CIV S-07-2511-FCD-CMK-P Plaintiff, 13 vs. 14 LOCKART, et al., 15 16 17 ORDER Defendants. / Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court are: (1) defendants’ motion for summary 19 judgment (Doc. 48); and (2) plaintiff’s motion for a stay of proceedings (Doc. 56). 20 21 22 I. BACKGROUND Plaintiff names the following as defendants: Felker, Faulk, Lockart, Spalding, and 23 Moore. Plaintiff alleges that “African-Americans [are] being systematically . . . shipped and 24 housed at High Desert State Prison.” He also alleges an “underground policy of ‘not allowing 25 them to be transferred.’” Plaintiff claims that he was improperly transferred to High Desert State 26 Prison in retaliation for a prison grievance he filed in February 2007. He claims that he was 1 Dockets.Justia.com 1 informed by defendant Lockart that “. . . he and his boys knew all about [plaintiff] filing paper 2 work [the February 2007 grievance] against this prison (High Desert) and that [plaintiff would] 3 wish [he hadn’t] done so.” Plaintiff asserts that defendant Moore informed him that he was 4 being “fast tracked” to a program for behavior modification because he had filed grievances 5 concerning his transfer. He also claims that he was improperly classified as a member of a prison 6 gang in retaliation and as a form of harassment. Finally, he claims that his prison grievances 7 were intentionally “lost.” 8 9 As to defendant Felker, plaintiff claims that he is responsible for the actions of his subordinates. As to defendant Faulk, plaintiff asserts that he willfully and knowingly 10 participated in the alleged retaliation. It appears that liability against Faulk is alleged on the basis 11 of his function as a facility captain responsible for the conduct of subordinate correctional 12 officers. As to defendant Spalding, plaintiff alleges that he began the process to improperly label 13 him a gang member. As to defendants Lockart and Moore, plaintiff alleges these were the actual 14 correctional officers who engaged in other various acts of claimed retaliation. 15 Plaintiff states that the facts of his case give rise to a claim of retaliation and a 16 claim of violation of equal protection. Plaintiff specifically admits that the grievance process 17 was not completed as of the time of filing suit. Plaintiff seeks monetary damages and injunctive 18 relief. 19 On February 29, 2008, the court issued findings and recommendations that 20 plaintiff’s equal protection claim be dismissed, defendants Felker and Faulk be dismissed, and 21 that the action proceed only on plaintiffs’ retaliation claims against defendant Spalding, Lockart, 22 and Moore. The findings and recommendations were adopted in full on May 5, 2008, and all 23 three remaining defendants have appeared in the action. 24 /// 25 /// 26 /// 2 1 2 II. STANDARDS FOR SUMMARY JUDGMENT Summary judgment is appropriate when it is demonstrated that there exists “no 3 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 4 matter of law.” Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 5 6 7 8 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). 9 10 “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 11 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 12 depositions, answers to interrogatories, and admissions on file.’” Id. Indeed, summary judgment 13 should be entered, after adequate time for discovery and upon motion, against a party who fails to 14 make a showing sufficient to establish the existence of an element essential to that party’s case, 15 and on which that party will bear the burden of proof at trial. Id. at 322. “[A] complete failure of 16 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 17 facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 18 whatever is before the district court demonstrates that the standard for entry of summary 19 judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 20 If the moving party meets its initial responsibility, the burden then shifts to the 21 opposing party to establish that a genuine issue as to any material fact actually does exist. See 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 23 establish the existence of this factual dispute, the opposing party may not rely upon the 24 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 25 form of affidavits, and/or admissible discovery material, in support of its contention that the 26 dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party 3 1 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 2 of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 3 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and 4 that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict 5 for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 6 In the endeavor to establish the existence of a factual dispute, the opposing party 7 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 8 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 9 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary 10 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 11 genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 12 committee’s note on 1963 amendments). 13 In resolving the summary judgment motion, the court examines the pleadings, 14 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 15 any. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See 16 Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed 17 before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 18 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 19 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 20 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 21 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 22 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 23 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 24 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 25 /// 26 /// 4 1 III. DISCUSSION 2 Defendants argue that they are entitled to summary judgment for the following 3 reasons: (1) plaintiff failed to exhaust administrative remedies prior to bringing suit; (2) plaintiff 4 cannot establish the necessary elements of a retaliation claim; and (3) defendants are entitled to 5 qualified immunity. 6 7 A. Exhaustion Prisoners seeking relief under § 1983 must exhaust all available administrative 8 remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory 9 regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling 10 Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of 11 the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies 12 while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The 13 Supreme Court recently addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 14 (2007), and held: (1) prisoners are not required to specially plead or demonstrate exhaustion in 15 the complaint because lack of exhaustion is an affirmative defense which must be pleaded and 16 proved by the defendants; (2) an individual named as a defendant does not necessarily need to be 17 named in the grievance process for exhaustion to be considered adequate because the applicable 18 procedural rules that a prisoner must follow are defined by the particular grievance process, not 19 by the PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, 20 but not all, claims are unexhausted. 21 The Supreme Court also held in Woodford v. Ngo that, in order to exhaust 22 administrative remedies, the prisoner must comply with all of the prison system’s procedural 23 rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, 24 exhaustion requires compliance with “deadlines and other critical procedural rules.” Id. at 90. 25 Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance 26 which affords prison officials a full and fair opportunity to address the prisoner’s claims. See id. 5 1 at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the 2 quantity of prisoner suits “because some prisoners are successful in the administrative process, 3 and others are persuaded by the proceedings not to file an action in federal court.” Id. at 94. 4 As indicated above, plaintiff specifically admits in his complaint that he had not 5 completed the available administrative grievance process as of the date he commenced this 6 action. A review of defendants’ evidence reveals that, while plaintiff filed grievances concerning 7 his prison transfer, these grievances did not complain about any retaliatory conduct. Specifically, 8 plaintiff complained that prison officials had not followed the correct procedure with respect to 9 his transfer. Plaintiff’s position was that he should have been transferred to a prison closer to his 10 family. The grievances relating to his transfer, however, do not indicate that plaintiff ever 11 complained that the transfer was ordered because plaintiff had engaged in any protected activity. 12 13 B. Retaliation Claim In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must 14 establish that he was retaliated against for exercising a constitutional right, and that the 15 retaliatory action was not related to a legitimate penological purpose, such as preserving 16 institutional security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). 17 In meeting this standard, the prisoner must demonstrate a specific link between the alleged 18 retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th 19 Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner 20 must also show that the exercise of First Amendment rights was chilled, though not necessarily 21 silenced, by the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 22 2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner 23 plaintiff must establish the following in order to state a claim for retaliation: (1) prison officials 24 took adverse action against the inmate; (2) the adverse action was taken because the inmate 25 engaged in protected conduct; (3) the adverse action chilled the inmate’s First Amendment 26 rights; and (4) the adverse action did not serve a legitimate penological purpose. See Rhodes, 6 1 2 4098 F.3d at 568. As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not 3 alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm 4 that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of 5 example, the court cited Pratt in which a retaliation claim had been decided without discussing 6 chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to 7 discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate 8 penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly 9 stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse 10 action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also 11 Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action 12 which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the 13 chilling effect element is essentially subsumed by adverse action. 14 Defendants argue that plaintiff cannot establish that his transfer was ordered 15 because he filed inmate grievances. Specifically, while plaintiff states that defendants acted in 16 retaliation for a grievance he filed in February 2007, defendants’ evidence indicates that no such 17 grievance was ever filed. Exhibit A to plaintiff’s complaint is a document entitled 18 “Inmate/Parolee Appeal Form” bearing a submission date of February 28, 2007. At part C of the 19 form, captioned “Informal Level,” the following entry, dated July 9, 2007, appears: 20 21 Denied. You are here at HDSP because of available bed space. There are only so many level 4 bed’s [sic] through out [sic] the state and you were placed here at HDSP because we had beds. 22 This same exhibit also suggests that a formal level response was prepared, but no date is 23 indicated for this level response. Defendants conclude that, because the responses were not 24 signed, they must have been “manufactured” by plaintiff. This issue raises a disputed issue of 25 fact – i.e., whether the responses were manufactured – which this court cannot resolve on a 26 motion for summary judgment. 7 1 C. 2 Qualified Immunity Government officials enjoy qualified immunity from civil damages unless their 3 conduct violates “clearly established statutory or constitutional rights of which a reasonable 4 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, 5 qualified immunity protects “all but the plainly incompetent or those who knowingly violate the 6 law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified 7 immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting 8 the injury, the facts alleged show the defendant’s conduct violated a constitutional right. See 9 Saucier v. Katz, 533 U.S. 194, 201 (2001). If, and only if, a violation can be made out, the next 10 step is to ask whether the right was clearly established. See id. This inquiry “must be undertaken 11 in light of the specific context of the case, not as a broad general proposition . . . .” Id. “[T]he 12 right the official is alleged to have violated must have been ‘clearly established’ in a more 13 particularized, and hence more relevant, sense: The contours of the right must be sufficiently 14 clear that a reasonable official would understand that what he is doing violates that right.” Id. at 15 202 (citation omitted). Thus, the final step in the analysis is to determine whether a reasonable 16 officer in similar circumstances would have thought his conduct violated the alleged right. See 17 id. at 205. 18 When identifying the right allegedly violated, the court must define the right more 19 narrowly than the constitutional provision guaranteeing the right, but more broadly than the 20 factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 21 (9th Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be 22 sufficiently clear that a reasonable official would understand [that] what [the official] is doing 23 violates the right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the 24 court concludes that a right was clearly established, an officer is not entitled to qualified 25 immunity because a reasonably competent public official is charged with knowing the law 26 governing his conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even 8 1 if the plaintiff has alleged a violation of a clearly established right, the government official is 2 entitled to qualified immunity if he could have “. . . reasonably but mistakenly believed that his 3 . . . conduct did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 4 2001); see also Saucier, 533 U.S. at 205. 5 The first two steps in the qualified immunity analysis involve purely legal 6 questions. See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a 7 legal determination based on a prior factual finding as to the government official’s conduct. See 8 Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). In resolving these issues, the court must 9 view the evidence in the light most favorable to plaintiff and resolve all material factual disputes 10 in favor of plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 11 In this case, the court finds that the facts viewed in the light most favorable to 12 plaintiff indicate the violation of a clearly established constitutional right. Specifically, there is a 13 dispute as to whether plaintiff ever filed the February 2007 grievance and, if so, whether such 14 filing motivated his prison transfer. In considering qualified immunity, the court must resolve 15 factual disputes in plaintiff’s favor. Moreover, the court finds that any reasonable correctional 16 officer would know that ordering a transfer solely because an inmate had filed a grievance would 17 constitute retaliation in violation of the First Amendment. 18 19 IV. CONCLUSION 20 While the court cannot agree with defendants that summary judgment is 21 appropriate – either because plaintiff cannot establish a necessary element of his retaliation claim 22 or because defendants are entitled to qualified immunity – the court does agree with defendants 23 that plaintiff failed to exhaust available administrative remedies prior to filing suit. 24 /// 25 /// 26 /// 9 1 Based on the foregoing, the undersigned recommends that: 2 1. Defendants’ motion for summary judgment be granted; 3 2. This action be dismissed without prejudice to failure to exhaust available 4 administrative remedies prior to filing suit; 5 3. All other pending motions be denied as moot; and 6 4. The Clerk of the Court be directed to enter judgment of dismissal and 7 close this file. 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court. The document should be captioned “Objections to Magistrate Judge's 12 Findings and Recommendations.” Failure to file objections within the specified time may waive 13 the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 16 17 DATED: February 11, 2010 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 10
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