Hunt v. Gonzalez et al, No. 4:2016cv05125 - Document 60 (E.D. Wash. 2017)

Court Description: ORDER granting 26 Defendants' Motion for Summary Judgment; denying in part and granting in part 41 Plaintiff's Motion for Summary Judgment. Plaintiff's claims are DISMISSED WITH PREJUDICE. Case CLOSED. Signed by Senior Judge Edward F. Shea. (SK, Case Administrator)**35 PAGES, PRINT ALL**(Donald Hunt, Prisoner ID: 786516)

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Hunt v. Gonzalez et al Doc. 60 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No. DONALD R. HUNT, 8 Plaintiff, 9 10 11 12 4:16-CV-5125-EFS v. ISRAEL R. GONZALEZ; JEFFERY UTTECHT; DAVID BAILEY; LAURA SHERBO; JACQUELINE L. FLUAITT; LORI WONDERS; CHE; MICHAEL ZWICKY; AND 1 TO 20 UNKNOWN JOHN OR JANE DOES, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING IN PART AND GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 13 Defendants. 14 15 Before the Court, without oral argument, are Defendants’ Motion 16 for Summary Judgment, ECF No. 26, and Plaintiff’s Cross-Motion for 17 Summary Judgment, ECF No. 41. Having reviewed the pleadings and the 18 file in this matter, the Court is fully informed. The Court grants 19 Defendants’ Motion for Summary Judgment. Plaintiff’s Cross-Motion for 20 Summary 21 summary judgment be granted in his favor and granted as to Plaintiff’s 22 request that his Sixth Amendment claims be dismissed. 23 /// 24 /// 25 // 26 / Judgment is denied to the extent Plaintiff requests that ORDER - 1 Dockets.Justia.com I. 1 Plaintiff 2 on transferred July 25, law library. Defendant Fluaitt was acting as grievance coordinator at 6 that 7 priority access to the law library based on a pending deadline in 8 Washington Supreme Court Cause No. 88842-6. This request was denied 9 because Defendant Wonders Plaintiff determined Plaintiff Center 5 2013, 2013, Corrections grievance number 13542140 regarding general population access to the 26, On Ridge 4 July 2013. Coyote (CRCC) On 18, to 3 time. July was FACTS1 submitted there was not a submitted request an for immediate 10 deadline in that case. On July 29, 2013, Plaintiff filed a request for 11 priority access to the law library in Washington Court of Appeals 12 Cause No. 69541-0-I. This request was denied because Defendant Wonder 13 determined that the deadline, which was for paying a filing fee, did 14 not meet the standards for priority access. 15 Plaintiff’s grievance was denied and returned to him on July 31, 16 2013. On August 1, 2013, Plaintiff appealed the grievance to level 2. 17 On August 7, 2013, Plaintiff filed another grievance indicating a 18 desire to appeal the denial of grievance number 13542140 to the next 19 level. 20 13542782 regarding access to the law library. On August 12, 2013, On August 9, 2013, Plaintiff submitted grievance number 21 1 22 23 24 25 26 In connection with their motions, each party submitted a statement of facts. See ECF Nos. 27 & 41 at 2–4. Any disputed facts or quotations are supported by a citation to the record. When considering this motion and creating this factual section, the Court (1) believed the undisputed facts and the non-moving party’s evidence, (2) drew all justifiable inferences therefrom in the nonmoving party’s favor, (3) did not weigh the evidence or assess credibility, and (4) did not accept assertions made by the nonmoving party that were flatly contradicted by the record. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Scott v. Harris, 550 U.S. 372, 380 (2007). ORDER - 2 1 Plaintiff filed an initial grievance related to access to the law 2 library. 3 grievance number 13542782 were related to grievance number 1354210 and 4 combined the grievances under number 1354210. On August 14, 2013, 5 Defendant Fluaitt advised Plaintiff that his August 12, 2013 grievance 6 was on the same topic as his other grievances and would therefore be 7 added 8 grievance related to access to the law library. On August 19, 2013, 9 Plaintiff to On August that file. filed an August additional 2013, grievance Plaintiff regarding access again sent submitted a a another to letter the continued to file numerous grievances on the same topic. Plaintiff Fluaitt filed that 12 2013, Defendant determined Plaintiff advising him that he may be issued an infraction if he 6, 2013, 15, Fluaitt 11 August 22, Defendant library. On August On 2013, 10 13 On 13, request to for 14 priority access in his Washington Supreme Court case, and this request 15 was approved based on an impending deadline in that case. On September 16 3, 2013, Plaintiff submitted an additional request for priority access 17 related to the Washington Supreme Court case, and that request was 18 again 19 request for priority access, and it was approved. approved. On October 8, 2013, Plaintiff submitted another 20 In June 2012, the Washington Department of Corrections (DOC) and 21 the Washington State Library entered into a contract, under which the 22 Washington State Library was to provide law library services to CRCC. 23 Under the terms of the contract, if Washington State Library staff 24 were not available, CRCC employees were not permitted to open the 25 library 26 difficulties at the CRCC law library from July 2013 through spring ORDER - 3 and the library remained closed. There were staffing 1 2014, which resulted in the law library being closed repeatedly. One 2 month during this period the law library was open for only 12 days and 3 another month the law library was open for a total of only 61 hours. 4 In April 2014, the contract was amended to transfer the provision of 5 law library services to the DOC. In 2013, DOC began the transition to providing legal resources 6 7 to inmates 8 books. Westlaw provided the electronic database for CRCC from January 9 1, 2013, via an through electronic December database, 31, 2015. rather than LexisNexis was through paper contracted to 10 provide electronic database services from December 31, 2015, through 11 December 12 prison officials to dispose of old law books as a result of the 13 transition to the electronic database. ECF No. 28-7. 14 31, One 2017. On particular July 12, resource, 2013, the Defendant Washington Practice West Publishing. 16 available in the CRCC 17 electronic 18 database services, the Washington Practice Series was available in the 19 electronic database. When LexisNexis became the service provider, this 20 resource was no longer provided in the electronic database. When Westlaw this prior to the was providing resource is by resources. of Series, published library copies directed 15 law Hard Gonzalez transition the were to electronic 21 On March 12, 2016, Plaintiff filed complaint number 16606206 22 regarding the fact that the Washington Practice Series books were 23 outdated. On March 16, 2016, Plaintiff filed a corresponding level 1 24 grievance. On March 24, 2016, Defendant Fluaitt responded that the 25 Washington Practice Series books should be available on LexisNexis and 26 that LexisNexis had been contacted to correct the issue. On March 27, ORDER - 4 1 2016, Plaintiff appealed the grievance to level 2. On April 11, 2016, 2 Defendant Zwicky responded that the law libraries are going electronic 3 and updates will be made electronically. On April 17, 2016, Plaintiff 4 appealed the grievance to level 3. At level 3, the grievance number 5 was changed to 16608781. On May 23, 2016, DOC responded that it was 6 working with LexisNexis to resolve the issue. On 7 May 18, 2016, Plaintiff filed complaint number 16610598 8 alleging that prison officials had retaliated against him for filing 9 grievances regarding the out-of-date Washington Practice Series by 10 removing 11 submitted a rewrite of this complaint. A prison official responded 12 that the LexisNexis electronic database had replaced the Washington 13 Practice Series. On May 28, 2016, Plaintiff filed a corresponding 14 level 1 grievance. A prison official responded that LexisNexis had 15 replaced the reference books and that the references books would be 16 removed from CRCC. Plaintiff appealed the grievance to level 2 on June 17 9, 18 Plaintiff’s grievance had already been addressed through grievance 19 number 16608781. 2016. the On books June from 14, the 2016, library. a On prison May 24, official 2016, Plaintiff responded that 20 On June 2, 2014, CRCC instituted a policy regarding carbon paper 21 that restricted the use of carbon paper to the law library and made 22 carbon paper contraband when possessed outside of the law library. The 23 DOC has a policy against accepting compact discs (CDs) through the 24 mail, including CDs containing legal material. The DOC has a policy 25 against inmates receiving non-religious calendars through the mail. 26 / ORDER - 5 II. 1 SUMMARY JUDGMENT STANDARD 2 Summary judgment is appropriate if the record establishes “no 3 genuine dispute as to any material fact and the movant is entitled to 4 judgment 5 opposing summary judgment must point to specific facts establishing a 6 genuine dispute of material fact for trial. Celotex Corp. v. Catrett, 7 477 U.S. 317, 324 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio 8 Corp., 475 U.S. 574, 586-87 (1986). If the non-moving party fails to 9 make such a showing for any of the elements essential to its case for 10 which it bears the burden of proof, such that the moving party is 11 entitled to judgment as a matter of law, the trial court should grant 12 the summary judgment motion. Celotex Corp., 477 U.S. at 322. as a matter of law.” Fed. R. Civ. P. 56(a). The party III. DISCUSSION 13 Based 14 on the above Defendants. Both facts, Plaintiff Plaintiff and brought Defendants various have now claims 15 against filed 16 motions for summary judgment. The Court will address, in turn, each of 17 Plaintiff’s claims. 18 A. Sixth Amendment Claims 19 As an initial matter, Plaintiff has indicated that he would like 20 to dismiss his claims under the Sixth Amendment. See ECF No. 41 at 1. 21 The Court construes this request as a motion to dismiss under Federal 22 Rule of Civil Procedure 41. The Court finds that the Sixth Amendment 23 is not relevant to the claims raised by Plaintiff in this lawsuit. 24 Accordingly, the Court grants Plaintiff’s motion to dismiss. Given the 25 fact 26 stage, however, the Court finds that dismissal with prejudice as to that ORDER - 6 this case has already advanced to the summary-judgment 1 the Sixth Amendment claims 2 Defendants. 3 dismissed with prejudice. Fed. R. Civ. P. 41(a)(2). 4 B. Accordingly, is appropriate Plaintiff’s Sixth to avoid Amendment prejudice claims to are Calendars, Carbon Paper, and CDs 5 The Court next addresses Plaintiff’s claims related to the use 6 and possession of calendars, carbon paper, and CDs within the CRCC 7 facility. Plaintiff has alleged that restrictions on the use of carbon 8 paper and the inability to obtain CDs through the mail constitute a 9 violation of his rights under the First and Fourteenth Amendments by 10 denying him meaningful access to the courts. See, e.g., ECF No. 1-4 at 11 21–22; ECF No. 41 at 4. Plaintiff alleges that his inability to obtain 12 calendars through the mail interferes with his First Amendment rights 13 of association and free speech. See, e.g., ECF No. 41 at 4. Defendants 14 respond that, due to institutional safety concerns, these restrictions 15 are necessary and do not substantially interfere with Plaintiff’s 16 constitutional rights. See, e.g., ECF No. 26 at 12 (carbon paper and 17 CDs); ECF No. 56 at 9 (calendars). The Court finds that there are no 18 questions of material fact related to these claims, and they are 19 therefore appropriate for resolution by summary judgment. 20 Generally, prison administrators must be given “wide-ranging 21 deference in the adoption and execution of policies and practices that 22 in their judgment are needed to preserve internal order and discipline 23 and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 24 520, 547 (1979). Nevertheless, “[p]rison walls do not form a barrier 25 separating prison inmates from the protections of the Constitution.” 26 Turner v. Safley, 482 U.S. 78, 84 (1987). Accordingly, in order to ORDER - 7 1 determine whether a particular prison policy is permissible — even if 2 it infringes to a degree on the constitutional rights of inmates — 3 courts apply a four-factor test: (1) whether there is a “‘valid, 4 rational connection’ between the prison regulation and the legitimate 5 governmental interest put forward to justify it”; (2) “whether there 6 are alternative means of exercising the right that remain open to 7 prison 8 constitutional right will have on guards and other inmates, and on the 9 allocation of prison resources generally”; and (4) the absence or 10 inmates”; (3) “the impact accommodation of the asserted availability of ready alternatives. Id. at 89–90. 11 1. Carbon Paper 12 CRCC declared carbon paper to be contraband on June 2, 2014, and 13 directed that carbon paper use be limited to the law library. ECF 14 No. 28-2. 15 restrict, deter or deny meaningful access to the courts.” ECF No. 1-4 16 at 21. Defendants respond that the policy was both a reaction to the 17 fact that inmates were using the carbon paper to make tattoos and due 18 to the penological interest in reducing copies of legal pleadings 19 because inmates use pleadings as currency. ECF No. 26 at 12; ECF No. 20 28 at 2–3. Plaintiff argues that there is “no penological interest” 21 served by the restriction on carbon paper. ECF No. 41 at 22. Plaintiff 22 notes 23 tattoos, many other permitted items are used for tattooing, and the 24 restriction acts primarily as a deterrent to litigation because of the 25 increase in copying expenses. ECF No. 41 at 22–23. Plaintiff that 26 ORDER - 8 he has claims never that this witnessed policy anyone “is using meant carbon to hinder, paper for The 1 Court finds that, despite the burden the carbon paper 2 restriction may impose on Plaintiff’s ability to efficiently produce 3 and file court documents, the restriction is permissible. While the 4 restriction 5 copies, the Court finds that the restriction does not interfere with 6 Plaintiff’s access to the courts because Plaintiff can make copies in 7 other ways, including by handwriting, and he has access to carbon 8 paper to make copies while in the law library. Phillips v. Hust, 588 9 F.3d 652, 656 (9th Cir. 2009) (“We thus had no trouble also concluding 10 that inmates had no right to a typewriter to prepare their legal 11 documents where the court rules permitted pro se litigants to hand- 12 write their pleadings.” (referencing Lindquist v. Idaho State Bd. of 13 Corrs., 776 F.2d 851, 856 (9th Cir. 1985))). Regardless, even if the 14 Court 15 constitutional rights, the Court would uphold the restriction under 16 the Turner test, as outlined below. might found make that it the less convenient restriction for Plaintiff impinged on to make Plaintiff’s 17 Applying the Turner test, the prison has a legitimate interest 18 in preventing the use of carbon paper for tattoos and preventing the 19 production of copies of legal documents for use as currency. The 20 restriction imposed — limiting carbon paper use to the law library — 21 is rationally related to these goals. There are also alternatives open 22 to inmates, such as using the carbon paper while in the law library or 23 paying 24 inmates could also handwrite copies of their filings. As to the third 25 factor, accommodating Plaintiff’s request to have access to carbon 26 paper for copies outside ORDER - 9 of to the be law made. While library potentially would time-consuming, effectively negate the 1 restriction and 2 tattooing or to create copies of pleadings that could then be used as 3 currency. 4 restriction. The prison considered the use of carbonless forms to 5 create duplicates, which would have resolved the tattooing issue, but 6 officials ultimately appear to have rejected this alternative because 7 it would not have addressed the issue of pleading copies being used as 8 currency. See 42-5, Ex. 403–408. Thus, the restriction on carbon paper 9 is permissible. Defendants are entitled to judgment as a matter of 10 law, and the Court therefore grants summary judgment in favor of 11 Defendants on this claim. There create are the no risk real of carbon alternatives paper to being the used carbon for paper 12 2. CDs 13 Plaintiff argues that the restriction on inmate receipt of legal 14 CDs, 15 interferes with his right of access to the courts. ECF No. 1-4 at 21– 16 22. Defendants respond that the CD restriction “does not create a 17 legitimate interference with [Plaintiff’s] ability to litigate” and 18 the DOC has “legitimate security concerns” regarding CDs from non- 19 approved vendors because reviewing CDs would require significant staff 20 resources, and the CDs could include viruses that would impair the 21 operations of the prison. ECF No. 26 at 12. In addition, Defendants 22 note that labels and other identifying information on CDs could be 23 replicated, making it difficult to know with certainty the source of 24 any CD. ECF No. 26 at 12. 25 26 including Again, significantly ORDER - 10 CDs the from Court interfere attorneys finds with that and CDs this Plaintiff’s including restriction access to discovery, does the not courts. 1 Plaintiff is generally allowed to possess hard copies of materials 2 that 3 copies may be more cumbersome and more expensive, those factors alone 4 are insufficient to amount to a restriction on Plaintiff’s access to 5 the courts. Cf. Tedder v. Odel, 890 F.2d 210, 211–12 (9th Cir. 1989) 6 (clarifying that, even when a party is indigent and qualifies for in 7 forma 8 witnesses, may be imposed); see also Beck v. Symington, 972 F. Supp. 9 532, 534 (D. Ariz. 1997) (“The touchstone of an inmate’s right of 10 access to the courts is that his access be ‘adequate, effective, and 11 meaningful.’ This right has never been interpreted to mean that an 12 inmate’s 13 omitted)). would otherwise pauperis access be status, must provided other also be on trial free CDs. Although expenses, of obtaining such charge.” as hard fees (internal for citation 14 As with the restriction on carbon paper discussed above, even if 15 the CD restriction affected Plaintiff’s right of access to the courts, 16 it would be valid under the Turner test. The prison has legitimate 17 interests in preventing the exposure of the prison computer system to 18 viruses and in avoiding the substantial time it would require for 19 employees to review the content of CDs prior to permitting inmate 20 access. 21 obtaining documents on CD because he is generally permitted to possess 22 hard copies of documents. Overton v. Bazzetta, 539 U.S. 126, 135 23 (2003) (“Alternatives . . . need not be ideal, however; they need only 24 be available.”). Allowing Plaintiff to have access to a CD would be 25 problematic 26 resources As ORDER - 11 previously to because, review mentioned, even the though content Plaintiff it of may has not an alternative exhaust Plaintiff’s CD, to significant it would be 1 extremely difficult for the prison to accommodate the review of CDs 2 for all 3 policies uniformly. Finally, there are no clear alternatives available 4 to the policy of prohibiting CDs that do not come from authorized 5 vendors. Although it might make sense at some point in the future for 6 the prison to permit CDs from verifiable entities such as attorneys, 7 the Court, or law enforcement agencies, the Court appreciates the fact 8 that there are currently limits on the ability to verify the source of 9 CDs. Accordingly, the DOC’s restriction on CDs is permissible, and 10 inmates, and the prison has an interest in applying its Defendants are entitled to judgment as a matter of law. 11 3. 12 Plaintiff argues that the DOC restriction on calendars not from 13 an approved vendor or a religious organization violates his First 14 Amendment free speech rights. ECF No. 41 at 30. Defendants respond 15 that the calendar restriction ensures compliance with content, size, 16 and material restrictions, and thereby reduces the risk of contraband 17 entering the prison and avoids the significant expenditure of staff 18 time that would be required to review all calendars. ECF No. 56 at 8– 19 10; ECF No. 57 at 2–3. 20 This Calendars restriction does impinge on Plaintiff’s First Amendment 21 right to receive mail, but the Court nevertheless finds that the 22 restriction is appropriate. See Witherow v. Paff, 52 F.3d 264, 265 23 (9th Cir. 1995) (explaining that inmates have a First Amendment right 24 to send and receive mail, but that the right can be limited based on 25 legitimate penological needs). Applying the Turner test, the Court 26 finds that DOC has a legitimate interest in ensuring that calendars ORDER - 12 1 comply with 2 inmates 3 objectives by not allowing certain content and enforcing the prison’s 4 property policy. DOC also has a legitimate interest in limiting the 5 amount of time expended by staff in reviewing incoming mail. The 6 calendar restriction is rationally related to these interests. from While 7 content, size, obtaining the policy and material contraband may not be the to to and restrictions penological least promote restrictive prevent means of 8 furthering CRCC’s interests, a prison is not required to use the least 9 restrictive means possible. Turner, 539 U.S. at 136 (“Turner does not 10 impose a 11 inmates to purchase calendars from an approved vendor ensures that all 12 calendars comply with the prison’s guidelines and generally avoids the 13 need for staff to inspect the calendars. Allowing a limited exception 14 for religious calendars coming directly from a publishing company or 15 book vendor is also reasonable, given the free exercise rights of 16 inmates.2 While the exception would seem to result in the need for 17 staff 18 prison guidelines, the general policy would still effectively limit 19 the materials requiring review. to In 20 least-restrictive-alternative review incoming addition, religious inmates have test . calendars an . . for alternative .”). Requiring compliance to with receiving 21 nonreligious calendars through the mail in that they can purchase the 22 calendars 23 inmate’s request to receive a calendar through the mail may not be 24 2 25 26 from the approved vendor. While accommodating a single It is a separate issue, which is not before the Court, whether the prison’s policy of allowing only religious calendars from publishing companies and book vendors could pose an issue under the Establishment Clause of the First Amendment. See McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005)(explaining that the First Amendment requires “governmental neutrality . . . between religion and nonreligion”). ORDER - 13 1 particularly burdensome for the prison — as it would not be extremely 2 time-consuming 3 prison regulations — CRCC has an interest in the uniform application 4 of policy. Allowing inmates to receive calendars more generally would 5 consume staff resources and increase the likelihood that contraband 6 would be introduced into the facility. Finally, although there are 7 alternatives to reduce the likelihood of contraband — such as allowing 8 calendars more generally from publishers or book vendors or allowing 9 postcard calendars that obviously comply with prison regulations — 10 there are no obvious alternatives that would also advance the interest 11 of reducing the need 12 Accordingly, the Court 13 permissible, despite any infringement of Plaintiff’s First Amendment 14 right to free speech and to receive mail. Defendants are therefore 15 entitled to judgment as a matter of law on this claim. 16 C. to one for calendar staff finds to that and ensure review the compliance incoming calendar with calendars. restriction is Grievances Plaintiff’s 17 review claims against Defendant Fluaitt relate to her 18 handling of the grievance system. Plaintiff argues that the grievance 19 procedure is inadequate, that Fluaitt’s performance was deficient, and 20 that Fluaitt retaliated against Plaintiff in relation to his filing of 21 grievances. As to these claims, the Court again finds that there are 22 no 23 resolution on summary judgment. issues of material fact, making these claims appropriate for 24 1. 25 First, to the extent that Plaintiff criticizes DOC’s grievance 26 Procedures procedures, ORDER - 14 arguments of an entitlement to specific grievance 1 procedures are largely precluded by Ninth Circuit case law holding 2 that “[t]here is no legitimate claim of entitlement to a grievance 3 procedure.” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also 4 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates lack 5 a separate constitutional entitlement to a specific prison grievance 6 procedure.”). “Because inmates . . . do not have a substantive right 7 to prison grievance procedures, the failure of prison officials to 8 comply with those procedures is not actionable under § 1983.” Butler 9 v. Bowen, 58 F. App’x 712 (9th Cir. 2003). 10 A prisoner’s right of meaningful access to the courts does, 11 however, extend to an established prison grievance procedure. Bradley 12 v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). The Ninth Circuit has 13 held that the right to file prison grievances is “[o]f fundamental 14 import to prisoners.” Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 15 2005). Accordingly, to the extent Plaintiff argues that he was not 16 permitted to use the grievance procedure, due to Defendant Fluaitt’s 17 conduct or otherwise, that claim is actionable. 18 A Ninth Circuit panel has noted, however, that an inmate’s 19 grievance rights may be limited “in order to allow prison officials to 20 achieve 21 security.” Schroeder v. Smythe, 29 F.3d 634, at *1 (9th Cir. 1994) 22 (table) (quoting Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990)). 23 In that case, the Ninth Circuit held that a restriction on filing 24 grievances 25 Amendment rights when “[i]t simply affected the number of grievances 26 [the inmate] could file each day without censoring the content of his legitimate ORDER - 15 was correctional permissible and goals did not and maintain violate an institutional inmate’s First 1 one daily grievance” because the restriction prevented a “drain on 2 prison 3 enforcing prison rules.” Schroeder, 29 F.3d 634, at *2; see also Clark 4 v. Beard, No. 11-CV-03520-YGR (PR), 2015 WL 4452470, at *4 (N.D. Cal. 5 July 20, 2015) (finding that an inmate has “no First Amendment right 6 to file appeals” of grievance decisions and that the inmate in that 7 case had failed to demonstrate “a constitutional right to file an 8 unlimited number of non-emergency appeals”). 9 resources” Here, and Plaintiff “maintain[ed] argues that discipline his rights in were the prison violated by when 10 Defendant Fluaitt chastised Plaintiff for filing too many grievances 11 on the same topic and threatened an infraction if Plaintiff continued 12 to file multiple grievances on the same topic. Plaintiff notes that 13 the practices engaged in by CRCC grievance officials also include: 14 “grievances not being returned, or untimely returned then summarily 15 dismissed as not meeting five day deadline window for appeal; changing 16 Log ID numbers midstream; not filing grievances or losing them when 17 they are critical of staff; summarily dismissing grievances at the 18 second level to avoid headquarters review, especially when critical of 19 practices and procedures to reduce litigation for lack of exhaustion.” 20 ECF No. 41 at 37. 21 As to Plaintiff’s primary claim, Plaintiff’s rights were not 22 violated because he was chastised and threated with an infraction for 23 filing numerous grievances on the same topic. Plaintiff claims that 24 each grievance raised a distinct issue — which appears to be true — 25 but the grievances at issue all addressed the same topic of access to 26 the law library. It was not unreasonable for CRCC to limit the number ORDER - 16 1 of grievances Plaintiff could file on that topic within a short period 2 of 3 Defendants. ECF No. 56 at 8; see also Schroeder, 29 F.3d 634. time, given the need to conserve prison resources noted by 4 As to the list of other practices included in Plaintiff’s Cross- 5 Motion for Summary Judgment, the return of grievances, the Log ID 6 numbers, and the dismissal of grievances are the type of specific 7 grievance procedures to which inmates do not have a right. The alleged 8 practice of not filing grievances or losing grievances could interfere 9 with an inmate’s right of access to the courts, which applies to 10 access to the grievance system. In this case, however, there is no 11 evidence that Defendants have failed to file or have lost Plaintiff’s 12 grievances — many of his filed and processed grievances are included 13 in the record — and, more importantly, Plaintiff has failed to allege 14 any 15 system. See Al-Hizbullahi v. Nimrod, 122 F. App’x 349, 350–51 (9th 16 Cir. 2005) (citing Lewis v. Casey, 518 U.S. 343, 353–55 (1996)). 17 Defendants are entitled 18 issues. 19 2. 20 Second, to the extent Plaintiff claims that Defendant Fluaitt injury suffered due to an inability to judgment as to access a matter the of law grievance on these Retaliation 21 retaliated 22 system, the Court finds that there is no question of material fact and 23 that Defendant Fluaitt is entitled to judgment as a matter of law. 24 Plaintiff 25 letter advising Plaintiff that if he continued to submit multiple 26 grievances on the same topic, he would be subject to sanction. The ORDER - 17 against and Plaintiff Defendants for agree his that valid Ms. use Fluaitt of the sent grievance Plaintiff a 1 Court finds that, as a matter of law, this action does not constitute 2 retaliation. 3 “[P]urely retaliatory actions” taken against an inmate due to 4 the inmate’s valid use of the grievance process constitute a violation 5 of 6 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009); see also Knight 7 v. 8 (“[D]isciplinary 9 grievance violate the right of access to the courts.” (citing Bradley, 10 64 F.3d at 1279)). An inmate can bring an action for such conduct if 11 the 12 exercising his constitutional rights and that the retaliatory action 13 does not advance legitimate penological goals, such as preserving 14 institutional order and discipline.” See Barnett v. Centoni, 31 F.3d 15 813, 816 (9th Cir. 1994); see also Gomez v. Vernon, 255 F.3d 1118, 16 1127 17 because of [the plaintiff’s] complaints about the administration of 18 the [prison] library” were sufficient to support a retaliation claim). 19 an inmate’s Nimrod, inmate (9th The 14 constitutional F. can Cir. Ninth App’x rules 921, that demonstrate 2001) 922 Rhodes, (9th discourage “that (holding Circuit rights. he that applies a Cir. a 408 2001) prisoner was F.3d from filing against threats five-element 567; (unpublished) retaliated “repeated at of test a for transfer for First 20 Amendment retaliation: “(1) An assertion that a state actor took some 21 adverse action against an inmate (2) because of (3) that prisoner’s 22 protected 23 exercise of his First Amendment rights, and (5) the action did not 24 reasonably advance a legitimate correctional goal.” Rhodes, 408 F.3d 25 at 567–68 (internal footnote omitted). In Garcia v. Maddock, the Ninth 26 Circuit conduct, held ORDER - 18 that and that “the such prison’s action (4) attempts chilled to the restrict inmate’s excessive 1 nonemergency grievances support legitimate penological goals.” 64 F. 2 App’x 10, 12–13 (9th Cir. 2003) 3 Plaintiff’s claim fails under this test for multiple reasons. 4 Defendant Fluaitt did not clearly take an “adverse action” against 5 Plaintiff because Ms. Fluaitt only advised Plaintiff that he would be 6 subject to sanction in the future. In addition, and most importantly, 7 Plaintiff’s conduct was not “protected conduct” because, as discussed 8 above, Plaintiff did not have a constitutional right to file multiple 9 grievances on the same topic, even if the grievances differed slightly 10 in their details. 11 Amendment rights were chilled or that he has suffered some other 12 injury because he has continued to file numerous grievances on a 13 variety 14 firmness” would not have been deterred from filing valid grievances 15 based on Ms. Fluaitt’s letter. See Rhodes, 408 F.3d at 568–69 (“[T]he 16 proper First Amendment inquiry asks whether an official’s acts would 17 chill or silence a person of ordinary firmness from future First 18 Amendment activities.” 19 omitted)). Finally, 20 legitimate correctional goal of limiting the number of grievances and 21 conserving prison resources. Overall, Plaintiff has failed to present 22 evidence of a retaliatory act by Defendant Fluaitt. See Schroeder, 29 23 F.3d 634, at *2 (“[The Plaintiff] has offered no evidence, other than 24 bare allegations, to raise a genuine issue of material fact regarding 25 his of topics. retaliation 26 ORDER - 19 It is The as also Court not finds (internal explained claim.” clear that that “a quotation above, (internal the Plaintiff’s person marks DOC quotation of and ordinary emphasis Defendants marks First had a omitted)). 1 Defendants are therefore entitled to judgment as a matter of law on 2 this issue. 3 D. Plaintiff raises claims under the First, Eighth, and Fourteenth 4 5 Law Library Amendments based on issues related to the law library at CRCC. 6 Inmates possess a “fundamental constitutional right of access to 7 the courts,” and prison authorities must either provide adequate law 8 libraries or adequate assistance from legally trained individuals in 9 order to satisfy this right. Bounds v. Smith, 430 U.S. 817, 828 10 (1977). There is, however, no “abstract, freestanding right to a law 11 library or legal assistance.” Lewis, 518 U.S. at 352. Instead, the 12 right to an adequate law library or legal assistance exists only when 13 necessary to promote an inmate’s right of access to the courts. Id. An 14 inmate must therefore demonstrate that any “alleged shortcomings in 15 the prison library or legal assistance program have hindered, or are 16 presently 17 claim.” Id. An inmate’s right of access to the courts is also limited 18 to 19 ‘require[ ] to be provided are those that the inmates need in order to 20 attack their sentences, directly or collaterally, and in order to 21 challenge the conditions of their confinement.’” Hebbe v. Pliler, 627 22 F.3d 338, 343 (9th Cir. 2010) (internal citation omitted). certain hindering, types of his efforts claims: “The to pursue ‘tools’ a that nonfrivolous Lewis and legal Bounds 23 Plaintiff alleges that he was given insufficient access to the 24 law library, such that he was unable to meet a filing deadline in a 25 case. Plaintiff also claims that the law library is deficient because 26 it lacks certain resources. As a result of these issues, Plaintiff ORDER - 20 1 argues that he has been denied his constitutional right of access to 2 the courts under the First and Fourteenth Amendments. Plaintiff also 3 argues that his Eighth Amendment rights have been violated because 4 Defendants 5 problems 6 Defendant Gonzalez retaliated against him by removing books from the 7 law library. The Court addresses these claims in turn. were with deliberately the law indifferent library. to Finally, injuries Plaintiff caused claims by that 8 1. 9 The Court first addresses Plaintiff’s claims against Defendant 10 Sherbo. Plaintiff argues that Defendant Sherbo, as an employee of the 11 Washington 12 between DOC and the State Library, violated his right of access to the 13 courts by failing to adequately staff the law library. ECF No. 41 at 14 11. Defendants argue that Ms. Sherbo has no duty to provide for 15 Plaintiff’s access to the courts because she is not a Department of 16 Corrections 17 Plaintiff has failed to demonstrate a violation by Defendant Sherbo of 18 any duty owed to Plaintiff. 19 In Defendant Sherbo State Library employee. order to and ECF bring No. a project 26 claim at manager 17–18. under under The § 1983, the Court a contract finds plaintiff that must 20 demonstrate that he was deprived of his rights due to the conduct of a 21 state actor. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (“A 22 person 23 right, within the meaning of section 1983, if he does an affirmative 24 act, participates in another’s affirmative acts, or omits to perform 25 an act which he is legally required to do that causes the deprivation 26 of which complaint is made.”). A supervisor may be liable under § 1983 ‘subjects’ ORDER - 21 another to the deprivation of a constitutional 1 only “if there exists either (1) his or her personal involvement in 2 the constitutional deprivation, or (2) a sufficient causal connection 3 between 4 violation.” 5 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). “[A] 6 plaintiff must show the supervisor breached a duty to plaintiff which 7 was the proximate cause of the injury.” Id. (quoting Redman v. Cty. of 8 San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991)) (internal quotation 9 marks omitted)). the supervisor’s Starr v. wrongful Baca, 652 conduct F.3d 1202, and the 1207 constitutional (9th Cir. 2011) 10 In the context of law libraries, “the fundamental constitutional 11 right of access to the courts requires prison authorities to assist 12 inmates in the preparation and filing of meaningful legal papers by 13 providing prisoners with adequate law libraries or adequate assistance 14 from persons trained in the law. Bounds, 430 U.S. at 828 (emphasis 15 added). This duty applies to “prison authorities,” and the Court finds 16 no support for Plaintiff’s argument that Defendant Sherbo, as a non- 17 prison authority, can be liable for a violation of an inmate’s right 18 of access to the courts. 19 First, there is no indication that Defendant Sherbo owed a duty 20 to Plaintiff regarding access to the courts. In addition, there is no 21 evidence that Defendant Sherbo took any affirmative action under color 22 of state law or failed to take a required action that resulted in a 23 deprivation of Plaintiff’s rights. Defendant Sherbo, working for the 24 Washington State Library, did have a contractual duty to provide law 25 library services to CRCC, but it was still ultimately the duty of DOC 26 officials to ensure that Plaintiff’s right of access to the courts was ORDER - 22 1 not impaired. Cf. Gilmore v. Lynch, 319 F. Supp. 105, 112 (N.D. Cal. 2 1970), 3 (“Assuming that the Department provides adequately for inmate legal 4 needs, the back-stopping function now performed by the State Library 5 will become superfluous.”). Plaintiff is not otherwise entitled to 6 enforce 7 Plaintiff’s § 1983 claim against Ms. Sherbo fails.3 aff’d sub Defendant nom. Younger Sherbo’s v. Gilmore, contractual 404 U.S. obligations. 15 (1971) Accordingly, 8 2. Access to Law Library 9 Plaintiff claims that he was not allowed access to the library 10 when he had a pending deadline in state court, and that the case was 11 dismissed as a result of his failure to comply with that deadline. ECF 12 No. 41 at 7–9; ECF No. 42 Ex. 5. Defendants respond that Plaintiff did 13 not have a substantive deadline, but only a deadline to pay a filing 14 fee, and that access was not required for the type of claims involved. 15 ECF No. 56 at 2–3. Plaintiff also argues that, subsequently, the law 16 library was often closed and he was denied access due to the frequent 17 closures. DOC Defendants respond that closures were due to a contract 18 with the Washington State Library and staffing difficulties that, once 19 discovered, 20 relationship and allowing staffing vacancies to be satisfied by DOC 21 employees. 22 disputes 23 summary judgment. of were The remedied Court material finds fact by making that and changes these are to claims appropriate that present for contractual no genuine resolution on 24 3 25 26 Regardless of the Court’s findings as to Defendant Sherbo, the Court finds that no violation of Defendant’s right of access to the courts occurred, as explained below. Accordingly, even if the Court had found that Defendant Sherbo was a proper defendant for Plaintiff’s § 1983 claim, that claim would fail. ORDER - 23 1 In order to establish a violation of the right of access to the 2 courts, an inmate must demonstrate that he was attempting to bring a 3 qualifying claim — related to his crime of conviction, conditions of 4 confinement, 5 provide an adequate law library or legally trained assistance hindered 6 the inmate’s ability to bring such a claim. Hebbe, 627 F.3d at 342–43. 7 “[T]he Constitution does not guarantee a prisoner unlimited access to 8 a law library. Prison officials of necessity must regulate the time, 9 manner and place in which library facilities are used.” Lindquist, 776 10 F.2d at 858. Nevertheless, “[t]he existence of an adequate law library 11 does not provide for meaningful access to the courts if the inmates 12 are not allowed a reasonable amount of time to use the library.” Id. 13 at 854. Thus, the following efforts can all constitute unreasonable 14 restrictions on adequate access to a law library: (1) arbitrarily 15 denying 16 availability, 17 library, 18 (4) scheduling 19 (5) arbitrarily removing inmates from the library. 20 951 F.2d 1504, 1508 (9th Cir. 1991). 21 or The or civil ignoring rights requests (2) permitting (3) providing Court and for to that prison’s access with Plaintiff’s of time library other claim failure despite insufficient notice conflict addresses the library prisoners inadequate turnouts first — to space in the turnouts, activities, or Gluth v. Kangas, that Defendants 22 interfered with his ability to meet a case deadline, which resulted in 23 the case being dismissed. As an initial matter, the Court finds that 24 Plaintiff’s relevant case, which involved a challenge to child support 25 payment calculations ECF Nos. 33-1 & 33-2, is not the type of case for 26 ORDER - 24 1 which access to the courts is guaranteed for inmates. Accordingly, the 2 Court finds that Plaintiff is not entitled to relief on this claim. The 3 Court notes, however, that CRCC should be cautious in 4 determining what types of case deadlines merit priority access for 5 inmates. Though Plaintiff’s deadline was facially a deadline to pay a 6 filing fee, Plaintiff claims that he needed library time in order to 7 effectively 8 procedural deadlines, like the deadline to pay a fee, may thus require 9 research. When cases raise claims for which inmates have rights of 10 access to the courts, priority access to the law library should not be 11 denied simply because a deadline appears to be procedural if the 12 inmate can explain why research is necessary and prison administrators 13 find that such an explanation is valid and made in good faith.4 contest Regardless, 14 in the this requirement instance, to pay Plaintiff the has fee. not Seemingly demonstrated 15 that he suffered any injury as a result of not being granted access to 16 the 17 relevant case, ECF No. 33-1 at 14, and it appears that Plaintiff filed 18 his order of indigency with the Washington Court of Appeals in order 19 to demonstrate an inability to pay the filing fee. Plaintiff does not law library. Defendants submitted the docket in Plaintiff’s 20 21 4 22 23 24 25 26 Defendants also indicate that when there is a question as to whether an inmate requires access to the library for a court deadline, prison officials sometimes contact the attorney general’s office. See ECF No. 31 at 3; ECF No. 42 Ex. 12 at 1–2. Although attorneys are bound by ethical requirements and must not make misrepresentations that would be adverse to pro se opposing parties, the state assistant attorney generals may often have a different view of the case than does the opposing party inmate, and a state attorney’s opinion as to whether research is required may not adequately reflect the inmate’s case strategy and view of the issues. Prison officials should generally defer to an inmate’s good faith representation that research is necessary if the inmate provides a sufficient explanation. ORDER - 25 1 articulate what — if anything — he could have submitted to avoid the 2 dismissal of his case. 3 Given the fact that Plaintiff’s child support case was not the 4 type of case in which inmate access to the courts is guaranteed, and 5 because the uncontested evidence does not reveal any injury resulting 6 from Plaintiff’s inability to access the law library, rather than as a 7 result of failing to pay a required fee in compliance with court 8 order, 9 entitlement to relief on this claim. the Court finds that Plaintiff has failed to demonstrate 10 Plaintiff also argues that he has been denied access to the 11 courts more generally due to numerous closures of the law library. In 12 this case, the Court finds that, although the law library at CRCC was 13 closed and unavailable to inmates for significant periods of time, 14 Plaintiff has failed to demonstrate any injury as a result of the 15 closures. As discussed above, there is no freestanding right to a law 16 library apart from a need to access the library in order to exercise 17 one’s 18 Plaintiff has not demonstrated that the restrictions on access due to 19 the numerous closures of the library hindered his ability to access 20 the courts. right to access the courts. See Lewis, 518 U.S. at 351. 21 In addition, there is significant evidence in the record that 22 Defendants were making efforts to accommodate inmates and ensure that 23 the law library closures did not affect inmates’ abilities to access 24 the courts. See, e.g., ECF No. 42 Ex. 13, Ex. 32, Ex. 33. While 25 staffing issues for the CRCC law library did arise — primarily due to 26 the illness and death of one staff member and limitations in the ORDER - 26 1 contract between DOC and Washington State Library — Defendants took 2 steps to resolve the issues. See, e.g., ECF No. 28-4, 28-6 at 148; ECF 3 No. 42 at Exs. 13, 33, 76. There is no evidence that the library 4 closures actually denied Plaintiff access to the courts. 5 3. Adequacy of Law Library 6 Plaintiff also alleges that the law library at CRCC is 7 inadequate because it does not include certain reference materials, 8 including 9 Defendants argue that DOC provided “adequate research tools through 10 the Washington Practice Series. ECF No. 41 at 15–21. case law, statute and other references materials.” ECF No. 26 at 11. 11 First, the Court finds that the condition of the CRCC library 12 does not implicate a liberty or property interest under the Fourteenth 13 Amendment Due Process Clause. The holdings regarding liberty interests 14 in the cases cited by Plaintiff, Olim v. Wakinekona, 461 U.S. 238 15 (1983), and Hewitt v. Helms, 459 U.S. 460 (1983), were significantly 16 constrained by Sandin v. Conner, 515 U.S. 472 (1995). In Sandin, the 17 Supreme Court held that liberty interests protected by the Due Process 18 Clause in the prison context “will generally be limited to freedom 19 from restraint which . . . imposes atypical and significant hardship 20 on the inmate in relation to the ordinary incidents of prison life.” 21 Sandin, 515 U.S. at 484. Under the rule announced in Sandin, the DOC 22 Law Library Resource List does not create a liberty interest in access 23 to the resources on that list because the resources do not relate to 24 an inmate’s freedom from restraint, and deprivation of the resources 25 does 26 Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir. 1996). not ORDER - 27 impose atypical or significant hardship on inmates. See In addition, the DOC has not created a property interest in the 1 2 Offender 3 monies from the fund “will be used solely for offender betterment 4 activities 5 facility by reducing idleness and encouraging positive development of 6 family and community ties.” ECF No. 42 Ex. 15 at 215. In addition, 7 “[t]he 8 vested with the 9 therefore does not have a protected property interest in the monies in 10 the Offender Betterment Fund or the items purchased through the fund. 11 See 12 Accordingly, Defendants’ decision to remove the Washington Practice 13 Series 14 Betterment Fund monies related to the law library — did not violate 15 Plaintiff’s procedural due process rights under the Due Process Clause 16 of the Fourteenth Amendment. 17 Betterment that authority St. Hilaire from The the Court Fund. enhance to Prison the spend security from the Secretary.” ECF v. Lewis, CRCC now law turns policy 26 library to and 132 — (9th Plaintiff’s operation Betterment Ex. 15 and establishes orderly [Offender No. 42 F.3d clearly claim of Fund] a is at 215. Plaintiff Cir. other that 1994) use that of (table). Offender Defendants’ 18 failure to provide certain reference materials affected Plaintiff’s 19 right of access to the courts. The resources that must be provided in 20 a prison law library in order to avoid impairing the right of access 21 to the courts are “those that the inmates need in order to attack 22 their sentences, directly or collaterally, and in order to challenge 23 the conditions of their confinement.” Lewis, 518 U.S. at 355. A prison 24 “need not provide its inmates with a library that results in the best 25 possible access to the courts.” Lindquist, 776 F.2d at 856; Phillips, 26 588 F.3d at 656 (“[W]hat Bounds required was that the resources meet ORDER - 28 1 minimum constitutional standards sufficient to provide 2 meaningful, though perhaps not ‘ideal,’ access to the courts.”). 3 As explained above, there is no independent constitutional right 4 to a prison law library. Instead, law libraries or legal assistance 5 are “only the means for ensuring ‘a reasonably adequate opportunity to 6 present claimed violation of fundamental constitutional rights to the 7 courts.’” Lewis, 518 U.S. at 351 (citations omitted). 8 cannot establish relevant actual injury simply by establishing that 9 his prison’s law library or legal assistance program is subpar in some 10 theoretical sense.” 11 guarantee 12 litigating 13 derivative actions to slip-and-fall claims.” Id. at 355. Instead, “a 14 library that meets minimum constitutional standards” is all that is 15 required. Lindquist, 776 F.2d at 856. inmates engines Id. “[A]n inmate the The right of access to the courts “does not wherewithal capable of to filing transform everything themselves from into shareholder 16 In Lindquist, the Ninth Circuit held that a prison library need 17 not contain the Pacific Reporter 2d, Shepard’s Citations, a number of 18 other reference books, and early editions of the Federal Supplement. 19 Id. at 856. Other circuits have addressed the adequacy of prison law 20 library resources on a case-by-case basis and found that law libraries 21 are 22 reporters, statutes, and secondary sources. See Petrick v. Maynard, 11 23 F.3d 991, 994 n.3 (10th Cir. 1993)(compiling cases). Although the 24 American Association of Law Libraries collection list or other lists 25 of recommended resources may be relevant to determining whether a law 26 library’s resources are adequate, see Bounds, 430 U.S. at 819 n.4, adequate ORDER - 29 when they contain a reasonable combination of case 1 compliance with any particular list, including the DOC Law Library 2 Resource List, is not required. 3 In this case, Plaintiff fails to demonstrate that he suffered an 4 actual injury based on the condition of the CRCC law library. While 5 Plaintiff notes that he was denied access to the courts based on the 6 inadequacy of the resources in the law library, he does not point to a 7 qualifying case that he was unable to bring or that was dismissed 8 based 9 inability to demonstrate an actual injury regarding access to the 10 on the lack of resources in the library. By itself, this courts would defeat Plaintiff’s claim. 11 It is also not clear that the law library violated the terms of 12 the DOC Law Library Resource List, as it appears that Defendants 13 attempted, in good faith, to provide the resources on that list. See 14 ECF Nos. 28-9 at 188 (LexisNexis contract bid demonstrating that DOC 15 requested that any contractor provide the Washington Practice Series 16 and that LexisNexis indicated that “Washington Criminal Practice in 17 Courts of Limited Jurisdiction” was a comparable resource), 28-11 18 (August 19 Washington Practice Series). DOC policy itself appears to only require 20 that the law library include “relevant and up-to-date constitutional, 21 statutory, 22 practice treatises.” ECF No. 41 Ex. 16 at 233. 23 15, 2016 and Regardless, order case the law form reflecting materials, Court finds DOC’s applicable that the law purchase court of rules, library at the and CRCC 24 complied with the access to court requirements as announced in Bounds. 25 “Unless there is a breach of constitutional rights, . . . § 1983 does 26 not provide redress in federal court for violations of state law.” ORDER - 30 1 Samson v. City of Bainbridge Island, 683 F.3d 1051, 1060 (9th Cir. 2 2012) (quoting Schlette v. Burdick, 633 F.2d 920, 922 n.3 (9th Cir. 3 1980)). Here, even if Defendants violated DOC policy by failing to 4 provide the Washington Practice Series or other resources to inmates, 5 there was no breach of Plaintiff’s constitutional rights. The CRCC 6 library appears to have, at all times, provided adequate materials to 7 enable Plaintiff to access the courts. Even if the LexisNexis system 8 was difficult for Plaintiff to use or not as helpful as the Washington 9 Practice Series, it provided access to numerous cases, statutes, and 10 secondary sources sufficient to satisfy the Bounds requirement. ECF 11 No. 28-10 Ex. J. 12 Although Plaintiff is understandably frustrated by the changes 13 to the law library and the removal of resources that he found helpful, 14 he has failed to present facts demonstrating a violation actionable 15 under § 1983. Accordingly, the Court finds that there is no dispute of 16 material fact, and that Defendants are entitled to judgment in their 17 favor on this claim as a matter of law. 18 4. Deliberate Indifference 19 Plaintiff also regarding argues the that Defendants deficiencies of the were law deliberately 20 indifferent library, in 21 violation of the Eighth Amendment. Defendants argue that this claim 22 should be dismissed as frivolous. 23 The Eighth Amendment of the U.S. Constitution prohibits “cruel 24 and unusual punishments.” Two conditions must be satisfied to prove an 25 Eighth Amendment claim against prison officials. Farmer v. Brennan, 26 511 U.S. 825, 834 (1994). First, “a prison official’s act or omission ORDER - 31 1 must result in the denial of ‘the minimal civilized measure of life’s 2 necessities.’” 3 (1981)). 4 sentenced prisoners with adequate food, clothing, shelter, sanitation, 5 medical care, and personal safety.” Hoptowit v. Ray, 682 F.2d 1237, 6 1246 (9th Cir. 1982), abrogated on other grounds by Sandin, 515 U.S. 7 472; Farmer, 511 U.S. at 833. Second, a prison official must have a 8 sufficiently 9 conditions cases as a state of mind of “‘deliberate indifference’ to 10 inmate health or safety.” Id. The Eighth Amendment “requires neither 11 that prisons be comfortable nor that they provide every amenity that 12 one might find desirable.” Rhodes, 452 U.S. at 347, 349. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 This standard is satisfied when the institution “furnishes culpable Here, 13 Id. state Plaintiff of argues mind, which that is Defendants defined were in prison- deliberately 14 indifferent by failing to provide adequate library materials. While 15 the 16 concerns — as discussed above — a prison is not required to provide 17 legal resources under the Eighth Amendment. Such resources do not 18 constitute “life’s necessities.” In addition, even if Defendants were 19 deliberately indifferent to the situation — and the Court finds that 20 Defendants 21 situation — any indifference would not be in reliation “to inmate 22 health 23 Amendment. 24 sufficiency of the CRCC law library fails. The Court therefore grants 25 summary judgment on this claim in favor of Defendants. 26 / adequacy or ORDER - 32 of were a not safety,” Thus, prison law library indifferent as required Plaintiff’s and made for Eighth raises a other efforts violation Amendment claim constitutional to of remedy the the Eighth regarding the 1 5. Retaliation Claims 2 Plaintiff also raises a retaliation claim against Defendant 3 Gonzalez based on the removal of the Washington Practice Series from 4 the CRCC law library. Plaintiff argues that the books were removed as 5 a result of Plaintiff exercising his right to file grievances and 6 grieving the out-of-date quality of the books. ECF No. 41 at 30. 7 Defendants respond that the removal of the books was not ordered to 8 punish or otherwise affect Plaintiff, but simply because Defendant 9 Gonzalez had ordered the books removed years before when the DOC 10 switched to electronic legal resources. ECF No. 26 at 15–16; see also 11 ECF No. 28-7. 12 As explained above, to prove a claim of First Amendment 13 retaliation, a plaintiff must prove that a state actor took an adverse 14 action against an inmate based on the inmate’s protected conduct, and 15 that the adverse action did not advance a legitimate correctional 16 goal. Brodheim, 584 F.3d at 1269. The Court finds that Plaintiff has 17 failed to present sufficient facts to support his claim of retaliation 18 by Defendant Gonzalez. Defendant 19 Gonzalez because not take 22 their 23 Further, because Defendant did not have a right to the Washington 24 Practice 25 “adverse” 26 advanced a legitimate correctional goal. As cited by Plaintiff, a ORDER - 33 Series to books, Plaintiff removal in any of of these meaningful grievances. against Gonzalez had previously ordered the books removed, ECF No. 28-7, so regardless of action 21 required, filing adverse Plaintiff was Plaintiff’s an 20 removal of did Plaintiff’s books way. was The Defendant grievances. not clearly removal also 1 panel of the Ninth Circuit has indicated that a prison may be required 2 to update the legal reference materials that it provides to inmates, 3 see Mead v. Reed, 946 F.2d 898, *1 (9th Cir. 1991) (table) (affirming 4 a district court order that all materials at a prison law library “be 5 kept current in order to meet constitutional standards”). Further, the 6 Court 7 relevant to a court’s finding as to whether a prison law library was 8 adequate and DOC policy requires that resources be kept up-to-date, 9 ECF No. 41 Ex. 16 at 233. Defendant Gonzalez therefore had an interest 10 in removing the books, rather than allowing out-of-date resources to 11 be present in the law library after the transition to electronic legal 12 resources. finds that resource materials being out-of-date would be 13 While Plaintiff suggests that Defendant Gonzalez did not order 14 removal of the books until Plaintiff had filed his complaint, ECF 15 No. 41 at 30, and Defendant Gonzalez presents evidence that he had 16 previously ordered removal of the books, ECF No. 28-7, the Court finds 17 that these discrepancies do not create a material dispute of fact. 18 Plaintiff’s 19 authenticity of which has not been disputed. In addition, as explained 20 above, 21 Gonzalez ordered the removal of the books as a result of Plaintiff’s 22 claim because the action was not adverse to Plaintiff and Defendant 23 Gonzalez had a legitimate penological interest in ordering the books 24 removed. Defendants are entitled to judgment as a matter of law. 25 // 26 / position Plaintiff’s ORDER - 34 is contradicted claim fails by documentary regardless of evidence, whether the Defendant IV. 1 2 CONCLUSION In sum, the Court finds that there are no genuine disputes as to 3 any issue of material fact in 4 entitled to judgment as a matter of law on all claims raised by 5 Plaintiff. 6 granted. Plaintiff’s Cross-Motion for Summary Judgment is denied to 7 the extent Plaintiff requests that summary judgment be granted in his 8 favor and granted to the extent Plaintiff requests dismissal of his 9 Sixth Amendment claims. Defendants’ Motion this case and that Defendants are for Summary 10 1. is therefore Accordingly, IT IS HEREBY ORDERED: 11 judgment GRANTED. 12 13 Defendants’ Motion for Summary Judgment, ECF No. 26, is 2. Plaintiff Donald Hunt’s Cross-Motion for Summary Judgment, 14 ECF No. 41, is DENIED IN PART AND GRANTED 15 Plaintiff’s request that summary judgment be granted in his 16 favor is denied. To the extent the Court construes the 17 motion as a Motion to Dismiss Sixth Amendment Claims under 18 Federal Rule of Civil Procedure 41, the Motion is granted. 19 3. 4. This case shall be CLOSED. 21 IT IS SO ORDERED. PART. Plaintiff’s claims are DISMISSED WITH PREJUDICE. 20 IN The Clerk’s Office is directed to enter this 22 Order, enter judgment in favor of Defendants and provide copies to 23 Plaintiff and all counsel. 24 DATED this 20th day of July 2017. s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 25 26 Q:\EFS\Civil\2016\5125.Hunt.ord.summ.judg.lc02.docx ORDER - 35

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