-VPC Dickerman v. Helling et al, No. 3:2011cv00239 - Document 21 (D. Nev. 2012)
Court Description: ORDER granting 15 Motion for Summary Judgment. The Clerk of the Court shall enter judgment accordingly. Signed by Chief Judge Robert C. Jones on 7/6/12. (Copies have been distributed pursuant to the NEF - JC)
Download PDF
<![CDATA[
-VPC Dickerman v. Helling et al Doc. 21 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 PHILLIP DICKERMAN, ) ) Plaintiff, ) ) v. ) ) DON HELLING and ROBERT LEGRAND, ) ) Defendants. ) ) ___________________________________ ) 3:11-cv-239-RCJ-VPC ORDER 14 Currently before the Court is Defendants’ Motion for Summary Judgment (#15). The 15 Court heard oral argument on May 29, 2012. 16 BACKGROUND 17 I. Complaint 18 In April 2011, Plaintiff Phillip Dickerman (“Plaintiff”) filed a complaint against Don Helling 19 and Robert LeGrand (collectively “Defendants”). (Compl. (#1) at 1). The complaint stated that 20 Plaintiff was suing Defendants in their individual capacities. (Id.). 21 The complaint alleged the following. Plaintiff had been employed with the Nevada 22 Department of Corrections (“NDOC”) as a Senior Correctional Officer for nine and half years. 23 (Id.). In January 2010, Defendants proposed terminating Plaintiff’s employment. (Id.). At a 24 pre-disciplinary hearing, the hearing officer disagreed with the termination recommendation 25 and recommended a suspension. (Id. at 1-2). Plaintiff accepted a 10-day suspension without 26 pay and Defendants agreed that Plaintiff had not been at fault for the incident. (Id. at 2). The 27 incident had involved an inmate who had sued. (Id.). Defendant Helling had felt compelled 28 to pay $600 to settle the inmate’s civil rights lawsuit and Helling blamed Plaintiff for the Dockets.Justia.com 1 settlement which led to the proposed termination. (Id.). Plaintiff alleged that he was entitled 2 to a reimbursement for the 10-days in which he was denied pay for his suspension. (Id.). 3 The complaint alleged that, in August 20, 2010, Plaintiff was investigated by Defendants 4 for leaving his duty post without authorization. (Id.). On September 28, 2010, Plaintiff was 5 placed on administrative leave and terminated on November 29, 2010. (Id.). On February 17, 6 2011, a hearing officer ordered Plaintiff reinstated with full back pay and benefits. (Id.). 7 Defendants refused to impose back pay and instead imposed a 30-day suspension. (Id.). 8 Because of Defendants’ history of retaliation Plaintiff did not return to duty for fear of further 9 retaliation. (Id. at 2-3). Plaintiff asserts that he had the right to testify as a witness in the 10 inmate’s lawsuit and the right to present his case before the pre-disciplinary hearing officer. 11 (Id. at 3). Helling was upset how the matter turned out and suspended Plaintiff which 12 constituted an adverse employment action. (Id.). 13 Plaintiff alleged two causes of action. (Id.). In the first cause of action, Plaintiff alleged 14 First Amendment retaliation pursuant to 42 U.S.C. § 1983. (Id. at 3-4). Plaintiff alleged that 15 he had engaged in speech on a matter of public concern and that his speech and petitioning 16 activities were not part of his job duties. (Id. at 4). He asserted that he had suffered adverse 17 employment actions for those activities. (Id.). In the second cause of action, Plaintiff sought 18 injunctive relief and requested that the Court “enjoin Defendant Helling in his official capacity 19 to revoke the ten-day suspension.” (Id.). Plaintiff alleged that he had suffered emotional 20 distress, mental anguish, harm to his reputation, harm to his career, humiliation, 21 embarrassment, loss of enjoyment of life, and lost wages, benefits, and seniority. (Id. at 3). 22 Plaintiff asserted that he had mitigated his damages by taking a job with the Pershing County 23 Sheriff’s Office but continued to suffer a wage loss differential of $13,000 per year. (Id.). 24 II. Summary Judgment Facts 25 A. Second Specificity of Charges 26 In his affidavit, Robert LeGrand stated that he was the Warden at the NDOC Lovelock 27 Correctional Center (“LCC”). (LeGrand Aff. (#15-2) at 2). He was appointed Acting Warden 28 at LCC on May 3, 2010, and was appointed Warden on August 9, 2010. (Id.). During 2010, 2 1 up until his termination on November 29, 2010, Plaintiff worked at LCC as a Senior 2 Correctional Officer. (Id.). LeGrand had signed the Specificity of Charges that had terminated 3 Plaintiff from state service and had written the letter informing Plaintiff of his appeal rights. 4 (Id.). 5 On September 28, 2010, LeGrand sent Deputy Director Don Helling an adjudication 6 report concerning the three allegations against Plaintiff. (Adjudication Report (#15-3) at 27). 7 The first allegation stated that Plaintiff had engaged in neglect of duty for leaving an assigned 8 post while on duty without authorization from a supervisor, a Class 5 violation. (Id. at 28). 9 LeGrand recommended that this allegation be sustained (the act occurred). (Id. at 12, 28). 10 LeGrand reasoned that, during the investigation, Plaintiff had admitted that he had departed 11 the facility on August 10, 2010, at 5:35 p.m. without being relieved by another staff member 12 or notifying the on-duty shift supervisor.1 (Id. at 28). Plaintiff had stated in his report that he 13 should have called the on-duty supervisor to find out if he could leave or find out whether a 14 relief officer was going to be provided because Plaintiff had known that “all traffic coming into 15 and going out of the facility [had been] rerouted through [Plaintiff’s] sally port” due to a 16 malfunctioning of the gates at the gatehouse. (Id.). Plaintiff had been aware that personnel 17 were relieved at 6 p.m. (Id.). 18 The second allegation stated that Plaintiff had engaged in neglect of duty for 19 jeopardizing the security of the institution, a class 5 violation, when he abandoned his security 20 post with the knowledge that persons were still entering and leaving LCC via that gate. (Id. 21 at 28-29). LeGrand recommended that this allegation be classified as sustained. (Id. at 29). 22 LeGrand reasoned that the gatehouse gates went inoperable at 5:10 p.m. and that Plaintiff 23 had admitted that he had been notified that all foot traffic would be redirected to the Tower 3 24 Sally Port to enter and exit the facility for shift change. (Id.). LeGrand stated that, after being 25 notified, Plaintiff was aware that the Tower 3 Sally Port was going to be the main entrance and 26 exit for the facility and that Plaintiff was the “primary deterrent to any unauthorized personnel 27 28 1 Plaintiff’s shift was from 6 a.m. to 6 p.m. (Del Porto Ltr. (#15-3) at 16). 3 1 or inmates entering or departing the facility.” (Id.). At that time, Plaintiff had become 2 responsible for the identification of all persons entering and exiting the facility. (Id.). Plaintiff 3 chose to abandon his post and leave the institution, leaving the responsibility to a probationary 4 employee from a vantage point of approximately 60 feet in the air on a catwalk. (Id.). 5 Plaintiff’s actions left the institution vulnerable to the possibility of escape. (Id.). 6 The third allegation stated that Plaintiff had engaged in neglect of duty for failure to 7 perform security functions, a class 4 violation, when he abandoned his post without relief from 8 staff or the permission of a supervisor. (Id.). LeGrand recommended that the allegation be 9 sustained. (Id.). LeGrand reasoned that one of the security functions on the institution was 10 to identify all persons entering and leaving and that when Plaintiff left his post at 5:30 p.m. he 11 left an unseasoned officer on the catwalk to that security task. (Id.). Plaintiff, as the seasoned 12 officer, did not take the responsibility of his post seriously. (Id. at 30). 13 LeGrand recommended that Plaintiff be terminated from service because Plaintiff had 14 committed two Class 5 violations and one Class 4 violation; knew that the Tower 3 Sally Port 15 had become the main entry and exit to and from LCC (a major population institution of 16 approximately 1600 medium and close custody inmates), and had made a conscious decision 17 to abandon his security post without notifying anyone. (Id.). 18 On November 15, 2010, LeGrand sent Plaintiff a Specificity of Charges #1082 letter. 19 (Nov. Specificity of Charges (#15-3) at 2). The letter stated that the department had decided 20 to terminate Plaintiff from service effective on November 29, 2010, and that he had 10 working 21 days to appeal the disciplinary action from the effective date of his termination. (Id.). 22 Plaintiff testified to the following in his deposition. (Dickerman Depo. (#15-4) at 8). 23 There were two Specificity of Charges. (Id. at 21). In the first Specificity of Charges, Plaintiff 24 did not file an appeal, but instead went to a pre-disciplinary hearing and requested that the 25 termination be overturned, which it was. (Id.). Plaintiff alleged that the severity of his second 26 Specificity of Charges was in retaliation for him reducing his first Specificity of Charges from 27 a termination to a 10-day suspension. (Id.). 28 Plaintiff testified that his First Amendment retaliation claim was based on the following 4 1 speech. (Id. at 25). First, Plaintiff had spoken to LeGrand and Acting Associate Warden 2 Sandie on August 11, 2010, the day after he left early from work. (Id. at 25-26). Plaintiff had 3 called LeGrand over to the sally port and they discussed what kind of discipline Plaintiff could 4 expect. (Id. at 26). Plaintiff said, “Hey, Warden . . . I left early. I might have screwed up. 5 What kind of disciplinary am I looking at?” (Id. at 27). LeGrand said, “Don’t worry. You are 6 not going to lose your job. I have concerns because a supervisor wasn’t present . . . We’ll 7 move on from here.” (Id.). Plaintiff responded, “All right. Thank you, sir. Have a good day.” 8 (Id.). Second, within a week following August 10, 2010, Plaintiff approached Sandie and 9 10 asked Sandie “to be forthright, to be truthful” at what Plaintiff was looking at. (Id. at 28). 11 Plaintiff specifically said, “Sandie, what am I . . . Be honest with me. What am I looking at?” 12 (Id. at 30). Plaintiff was referring to what type of discipline was he looking at. (Id.). Sandie 13 said, “Warden LeGrand and myself are not going after your job . . . maybe your stripe . . . But 14 if others get involved, there’s nothing I can do.” (Id. at 28-29). The stripe referred to a 15 demotion. (Id. at 29). 16 at 29). Plaintiff admitted that a Class 5 violation resulted in dismissal. (Id. 17 Third, Plaintiff had to fill out reports regarding grievances with inmates. (Id. at 32). If 18 a case worker came to him, he was required, as part of his job responsibilities, to write a 19 detailed explanation of what happened and describe what the inmate is referring to. (Id.). The 20 grievance Plaintiff was referring to was when an inmate complained that fecal matter had been 21 left on the inmate’s door. (Id. at 33). Plaintiff had filled out two reports and NDOC had 22 claimed that he had lied between the two reports. (Id. at 35). The written reports involved the 23 discipline of the inmates who were responsible for the fecal matter and the other inmate who 24 had filed a grievance about the fecal matter ending up in his cell. (Id. 38-39). Those reports 25 were done in the course and scope of Plaintiff’s job. (Id. at 40). 26 Fourth, Plaintiff referred to his speech contained in Adam Watson’s pre-disciplinary 27 hearing report regarding the inmate incident. (Id.). The report reflected the statements 28 Plaintiff had made during the pre-disciplinary hearing about what had happened with the fecal 5 1 matter incident. (Id.). 2 Fifth, Plaintiff referred to speech he had made before a personnel hearing officer, Louis 3 Ling, after NDOC had terminated him. (Id. at 42-43). Plaintiff specifically referred to Ling’s 4 order and decision stating that Plaintiff had not been completely without fault when Plaintiff 5 failed to notify anybody that he was leaving. (Id. at 43). Upon clarification, Plaintiff said that, 6 at that hearing, he had told the personnel hearing officer about the conversations that he had 7 had with LeGrand and Sandie after the August 10, 2011, incident. (Id. at 44). 8 Sixth, after the first Specificity of Charges, Adam Watson had ordered Plaintiff back to 9 work and placed in the gatehouse. (Id. at 45). On three separate occasions, then-Warden 10 Palmer had approached him and told Plaintiff that he needed to get the settlement agreement 11 signed. (Id.). Plaintiff told Palmer that he had been trying to get a hold of his attorney to find 12 out where the paperwork was. (Id.). 13 Seventh, while working at the gatehouse after the first Specificity of Charges, LeGrand, 14 who was an associate warden at the time, told Plaintiff the first week he had been back “to lay 15 low; not to make any waves; basically, just out of sight, out of mind type of thing; not to make 16 any waves; not to make any trouble; basically, to hide.” (Id. at 47). Plaintiff responded, “yes, 17 sir, that was my intention.” (Id.). Plaintiff explained it was his intention to not make any waves 18 and to get the target off his back because he knew he had a target on his back. (Id.). Plaintiff 19 knew he had a target on his back because “[i]t was a thing known to officers that . . . in a 20 sense, beat a termination, you are going to have a target on your back and they are going to 21 be looking at any way to get rid of you.” (Id.). Plaintiff interpreted LeGrand’s statement to lay 22 low and hide as a statement that there was a target on his back. (Id. at 47-48). 23 With respect to Plaintiff’s second cause of action, Plaintiff thought that Helling should 24 revoke his 10-day suspension because NDOC had used his 10-day suspension as a catalyst 25 for his second Specificity of Charges. (Id. at 49). Plaintiff admitted that he never asked for 26 the 10-day suspension or the first Specificity of Charges to be removed from his file. (Id. at 27 49-50). With respect to Plaintiff’s petitioning activity, Plaintiff stated that it involved him 28 appealing his first discipline that he had signed a settlement agreement for. (Id. at 54). 6 1 On February 17, 2011, after a hearing, Hearing Officer Louis Ling found that NDOC had 2 terminated Plaintiff without just cause and set the termination aside. (2011 Hearing Officer 3 Order (#15-5) at 2, 13). The hearing officer ordered NDOC to reinstate Plaintiff immediately 4 and ordered Plaintiff to receive full pay and benefits for the period he had been terminated. 5 (Id. at 13). After reviewing the evidence and holding a hearing, the hearing officer found that 6 there was “substantial, credible, and probative evidence” that Plaintiff’s departure of LCC on 7 August 10, 2010, did not constitute a “clear and serious security threat” or an “egregious 8 security breach.” (Id. at 10). 9 The hearing officer found that Plaintiff had “acted selfishly and without regard for 10 operational convenience and efficiency of LCC and without regard for the inconvenience that 11 his absence would work on his fellow employees who were undergoing shift change.” (Id. at 12 13). The hearing officer found that, although Plaintiff deserved to be disciplined for his 13 selfishness and poor judgement, he did not commit the offenses that NDOC had ultimately 14 charged him with. (Id.). 15 On May 18, 2011, NDOC sent Plaintiff a letter informing Plaintiff that his dismissal from 16 service had been reversed and that he would be receiving back pay. (Reinstatement Ltr. (#15- 17 6) at 2). The letter informed Plaintiff that he was expected to report to duty Sunday, May 22, 18 2011. (Id.). 19 20 On May 20, 2011, Plaintiff submitted a resignation from state service with an effective date of May 22, 2011. (Resignation Ltr. (#15-7) at 2). 21 B. First Specificity of Charges 22 On December 30, 2009, then-Warden Palmer sent Deputy Director Don Helling an 23 adjudication report concerning allegations against Plaintiff concerning incidents that took place 24 in December 2007 and January 2008. (Adjudication Report (#15-8) at 9-10). The first 25 allegation stated that on January 3, 2008, Plaintiff had engaged in false and misleading 26 statements in written reports in response to a request for information by an official investigator, 27 a Class 5 violation. (Id. at 10). The allegations stated that Plaintiff’s written reports had 28 differed from each other and that Palmer had recommended that the allegation be sustained. 7 1 (Id.). Palmer reasoned that in one report, Plaintiff stated that he had been passing in front of 2 cell 69 and noticed an envelope with fecal matter inside and had disposed of the envelope and 3 had proceeded to cell 72. (Id.). In another report, Plaintiff stated that he had picked up the 4 envelope that had a specified inmate’s name on it. (Id.). Plaintiff believed that the envelope 5 had fallen out of that inmate’s door slot and had placed the envelope in the door slot when he 6 noticed it contained fecal matter. (Id.). 7 The second allegation stated that on December 22, 2007, Plaintiff engaged in 8 unbecoming conduct when he smeared fecal matter on one of the inmate’s doors, a Class 2 9 violation. (Id.). Palmer recommended that the allegation be sustained. (Id.). Palmer 10 recommended termination from state service. (Id. at 11). 11 On March 15, 2010, Associate Warden Adam Watson wrote a letter to Director Howard 12 Skolnick and then-LCC Warden Jack Palmer, which stated that Watson had conducted a pre- 13 disciplinary hearing with Plaintiff and Plaintiff’s attorney. (Watson Ltr. (#15-9) at 2). Watson 14 found that the case had hinged on a false statement made on an official NDOC 15 record–specifically, what was submitted on a Notice of Charges to an inmate and a more 16 detailed incident report regarding the incident. (Id. at 4). The differences had resulted in the 17 basis of an inmate lawsuit in federal district court and had forced NDOC to settle monetarily 18 with the inmate and had caused embarrassment before a federal judge over a false statement 19 from a sworn peace officer. (Id.). Watson found that technically there had been a false report 20 authored in the case, the Notice of Charges. (Id.). The inmate had seized on the discrepancy 21 and had run with it. (Id.). Watson found that Plaintiff’s initial report was vague and had 22 substantially differed from the incident report. (Id.). Plaintiff vehemently had denied the issue 23 of intentional dishonesty and he and his lawyer had asserted that it was short and sloppy. 24 (Id.). Watson found that Plaintiff had violated the regulations stated in the specificity of 25 charges but found that there had been mitigating factors. (Id.). Watson recommended that 26 the termination be reduced to a suspension. (Id.). 27 In March 2010, Plaintiff, his attorney, and NDOC entered into a settlement agreement 28 effective April 5, 2010. (Settlement Agreement (#15-10) at 2-3). The settlement agreement 8 1 stated that NDOC agreed to rescind the proposed disciplinary of termination from service and 2 change the sanction to 10 working days without pay to be taken after the effective date. (Id. 3 at 2). The Agreement was not to be construed as an admission of liability or wrongdoing on 4 the part of either party. (Id.). Plaintiff agreed to accept the 10-working day suspension. (Id.). 5 In consideration for entering into the Agreement, Plaintiff would waive his appeal rights 6 pertaining to the 10-working day suspension. (Id.). NDOC agreed to modify the Specificity 7 of Charges to reflect a 10-working day suspension. (Id.). Plaintiff agreed to release and 8 relinquish any and all claims, rights, or entitlements arising out of the facts and incident which 9 had led to the Agreement and agreed to waive any right to back pay related to the Agreement. 10 11 (Id. at 3). LEGAL STANDARD 12 In reviewing a motion for summary judgment, the court construes the evidence in the 13 light most favorable to the nonmoving party. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 14 1996). Pursuant to Fed.R.Civ.P. 56, a court will grant summary judgment “if the movant shows 15 that there is no genuine dispute as to any material fact and the movant is entitled to judgment 16 as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are “facts that might affect the outcome 17 of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 18 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A material fact is “genuine” if the evidence is such 19 that a reasonable jury could return a verdict for the nonmoving party. Id. 20 The moving party bears the initial burden of identifying the portions of the pleadings and 21 evidence that the party believes to demonstrate the absence of any genuine issue of material 22 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 23 (1986). A party asserting that a fact cannot be or is genuinely disputed must support the 24 assertion by “citing to particular parts of materials in the record, including depositions, 25 documents, electronically stored information, affidavits or declarations, stipulations (including 26 those made for purposes of the motion only), admissions, interrogatory answers, or other 27 materials” or “showing that the materials cited do not establish the absence or presence of a 28 genuine dispute, or that an adverse party cannot produce admissible evidence to support the 9 1 fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). Once the moving party has properly supported the 2 motion, the burden shifts to the nonmoving party to come forward with specific facts showing 3 that a genuine issue for trial exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 4 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). “The mere existence of a 5 scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be 6 evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 7 106 S.Ct. at 2512. The nonmoving party cannot defeat a motion for summary judgment “by 8 relying solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 9 1040, 1045 (9th Cir. 1989). “Where the record taken as a whole could not lead a rational trier 10 of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita, 475 11 U.S. at 587, 106 S.Ct. at 1356. DISCUSSION 12 13 Defendants assert that Plaintiff cannot establish First Amendment retaliation because 14 Plaintiff cannot demonstrate that his speech qualified as one of public concern. (Mot. for 15 Summ. J. (#15) at 9). Defendants assert that Plaintiff’s attempt to create an action under the 16 Petition Clause also fails because Plaintiff has failed to demonstrate that his petition relates 17 to a matter of public concern. (Id. at 17). Defendants also argue that Plaintiff’s claim for 18 injunctive relief fails because Plaintiff signed a settlement agreement consenting to the 10-day 19 penalty. (Id. at 19). 20 In response, Plaintiff argues that the case is a wrongful termination case. (Opp’n to 21 Mot. for Summ. J. (#17) at 1). He argues that his speech was of a matter of public concern 22 because it concerned potential or actual discrimination by government agencies or officials. 23 (Id. at 3). He argues that he had a right to present facts at the inmate’s lawsuit and that a 24 “reasonable inference” exists that Helling disapproved of Plaintiff’s speech because it required 25 Helling to pay to settle the inmate’s suit. (Id.). Plaintiff asserts that a “reasonable inference” 26 exists that Helling was upset that Plaintiff’s terminations were overturned. (Id. at 4). He 27 asserts that there was a “reasonable inference” that the adverse employment actions were 28 motivated by Plaintiff’s speech and petitioning activity. (Id.). He asserts that because the 10 1 hearing officer vacated the second termination as unwarranted the termination was pretextual. 2 (Id.). 3 In support of his opposition to the motion for summary judgment, Plaintiff attaches three 4 partial deposition transcripts of Defendant Helling, Defendant LeGrand, and Lieutenant Sandi. 5 (Id. at 7). In Defendant Helling’s deposition, he testified to the following. (Helling Depo. (#17) 6 at 10). 7 adjudication and had recommended termination. (Id. at 11). Helling concurred with the 8 recommendation. (Id.). After Adam Watson conducted a hearing, Watson said there were 9 problems between the different reports but said that Plaintiff should be given the benefit of the 10 doubt and given a suspension instead of a termination. (Id.). The inmate incident was settled 11 for $600. (Id. at 12). Helling stated that, although he concurred with the termination 12 recommendation, he could have recommended a lesser discipline. (Id. at 15). With respect to the fecal matter incident, Warden Palmer had conducted the 13 With respect to LeGrand and Sandi’s deposition transcripts, Plaintiff only submits one 14 page from each deposition. (See LeGrand Depo. (#17) at 19; see Sandi Depo. (#17) at 23). 15 There is not enough context to the excerpts to understand what LeGrand and Sandi are 16 testifying to. (See id.). Defendants filed a reply. (Reply to Mot. for Summ. J. (#18)). 17 18 I. Claim One: First Amendment Retaliation & Petition Clause 19 To sustain an action under 42 U.S.C. § 1983, a plaintiff must show that (1) the conduct 20 complained of was committed by a person acting under color of state law, and (2) the conduct 21 deprived the plaintiff of a federal constitutional or statutory right. Jensen v. City of Oxnard, 145 22 F.3d 1078, 1082 (9th Cir. 1998). In this case, the parties do not dispute that Defendants acted 23 under color of state law, but instead focus on the alleged constitutional violation. 24 A. 25 A First Amendment retaliation claim against a government employer involves: 26 a sequential five-step series of questions: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other 27 28 First Amendment Retaliation 11 1 members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. 2 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). The plaintiff bears the burden of showing 3 steps one, two, and three. Id. at 1070-71. If the plaintiff has passed the first three steps, the 4 burden shifts to the government to establish steps four and five. Id. at 1071. 5 With respect to the first step, speech involves a matter of public concern when “it can 6 fairly be considered to relate to any matter of political, social, or other concern to the 7 community.” Id. at 1070 (internal quotations omitted). However, “speech that deals with 8 individual personnel disputes and grievances and that would be of no relevance to the public’s 9 evaluation of the performance of governmental agencies is generally not of public concern.” 10 Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (internal quotations omitted). 11 “Whether an employee’s speech addresses a matter of public concern must be determined 12 by the content, form, and context of a given statement, as revealed by the whole record.” Eng, 13 552 F.3d at 1070. 14 In this case, Plaintiff identified seven areas of speech in his deposition in which he 15 claims First Amendment Retaliation. The first speech took place on August 11, 2010, when 16 Plaintiff asked Defendant LeGrand, “Hey Warden . . . I left early. I might have screwed up. 17 What kind of disciplinary am I looking at?” (See Dickerman Depo. (#15-4) at 26-27). This 18 speech is not a matter of public concern because Plaintiff only asked about the possible 19 discipline he faced after leaving his post the day before which constitutes a personnel dispute. 20 The second speech took place the following week when Plaintiff asked Lt. Sandie “what 21 am I . . . Be honest with me. What am I looking at?” in reference to possible discipline he 22 faced after leaving his post. (See Dickerman Depo. (#15-4) at 30). This speech is not a 23 matter of public concern because Plaintiff only asked about the possible discipline he faced 24 for leaving his post which constitutes a personnel dispute. 25 The third speech involved filling out reports related to inmate grievances. (See 26 Dickerman Depo. (#15-4) at 32). In those reports, Plaintiff had to explain what had happened 27 and describe the incident that the inmate had complained about. (See id.). These reports 28 12 1 were not matters of public concern because they were reports that dealt with internal 2 grievances within the prison system. 3 The fourth speech involved Plaintiff’s speech contained in Adam Watson’s pre- 4 disciplinary hearing report regarding Plaintiff’s version of what had happened during the inmate 5 fecal matter incident. (See Dickerman Depo. (#15-4) at 40). This speech also does not 6 contain a matter of public concern because Plaintiff was giving speech that concerned an 7 internal personnel dispute about whether he had lied on two different reports about the fecal 8 matter incident. 9 The fifth speech involved statements he made to Louis Ling, a hearing officer, after 10 NDOC had terminated him for leaving his post. (See Dickerman Depo. (#15-4) at 42-43). 11 Plaintiff specifically stated that he retold the hearing officer about his conversations with 12 LeGrand and Sandie after the August 10, 2011, incident. (See id. at 44). As discussed above, 13 Plaintiff only asked LeGrand and Sandie about what possible discipline he was facing after he 14 had left his post, an internal personnel dispute, and does not constitute a matter of public 15 concern. 16 The sixth speech involved then-Warden Palmer telling Plaintiff that he needed to get 17 the settlement agreement involving the fecal matter incident signed and Plaintiff responding 18 that he had been trying to get hold of his attorney to find out where the paperwork was. (See 19 Dickerman Depo. (#15-4) at 45). This is not a matter of public concern because Plaintiff’s 20 speech only involved discussions pertaining to the internal personnel dispute regarding his two 21 conflicting reports regarding the fecal matter incident. 22 Finally, the seventh speech involved Plaintiff telling Defendant LeGrand that it was “[his] 23 intention” to lay low after the fecal matter incident. (See Dickerman Depo. (#15-4) at 47). This 24 is not a matter of public concern because it involved an internal personnel dispute involving 25 the fecal matter incident. As such, none of Plaintiff’s proffered speech is a matter of public 26 concern and therefore Plaintiff fails to establish a First Amendment violation. Because there 27 is no First Amendment violation, the Court grants Defendants’ motion for summary judgment 28 (#15) on the First Amendment retaliation claim. 13 1 B. Petition Clause 2 Plaintiff also attempts to raise a petition clause retaliation claim based on the appeal 3 of his first disciplinary incident in which he ultimately signed a settlement agreement for. (See 4 Compl. (#11) at 3-4; Dickerman Depo. (#15-4) at 54). 5 In Borough of Duryea, Pa. v. Guarnieri, __ U.S. __, 131 S. Ct. 2488, 180 L. Ed. 2d 408 6 (2011), the Supreme Court held that courts apply the same “matter of public concern” 7 framework to First Amendment Petition Clause claims as the courts do in First Amendment 8 Speech Clause claims. Id. at __, 131 S.Ct. at 2500. The Supreme Court has held that 9 “whether an employee’s petition relates to a matter of public concern will depend on the 10 content, form, and context of the petition, as revealed by the whole record.” Id. at __, 131 11 S.Ct. at 2501 (internal quotations and alterations omitted). “The forum in which a petition is 12 lodged will be relevant to the determination of whether the petition relates to a matter of public 13 concern.” Id. “A petition filed with an employer using an internal grievance procedure in many 14 cases will not seek to communicate to the public or to advance a political or social point of 15 view beyond the employment context.” Id. 16 In this case, Plaintiff’s petition did not involve a matter of public concern. Plaintiff used 17 an internal grievance procedure to appeal his termination regarding the fecal matter incident, 18 which ultimately led to Plaintiff’s reinstatement and a 10-day suspension. As such, Plaintiff 19 does not state a petition clause violation and the Court grants summary judgment (#15) on the 20 petition clause claim. Accordingly, the Court grants summary judgment (#15) on the first cause of action with 21 22 prejudice. 23 II. Claim Two: Injunctive Relief 24 Plaintiff’s complaint alleges that the Court should require Defendant Helling to revoke 25 Plaintiff’s 10-day suspension on the fecal matter incident based on his First Amendment claim. 26 (See Compl. (#1) at 4). As discussed above, there is no First Amendment Retaliation claim. 27 Additionally, in Plaintiff’s settlement agreement he agreed to serve a 10-day suspension. As 28 such, Plaintiff has stated no legal basis for injunctive relief. Accordingly, the Court grants 14 1 2 3 4 5 Defendants’ motion for summary judgment on the second cause of action with prejudice. CONCLUSION For the foregoing reasons, IT IS ORDERED that Defendants’ Motion for Summary Judgment (#15) is GRANTED in its entirety with prejudice. The Clerk of the Court shall enter judgment accordingly. 6 7 DATED: This 6th day of July, May, 2012. DATED: This _____ day of 2012. 8 9 _________________________________ United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
