Murray v. Terhune, et al

Filing 59

FINDINGS and RECOMMENDATIONS Recommending That Defendants' 47 Motion for Summary Judgment be Denied, signed by Magistrate Judge Dennis L. Beck on 2/3/2009. Motion referred to Judge Lawrence J. O'Neill. Objections to F&R due by 3/9/2009. (Sondheim, M)

1 2 3 4 5 6 7 8 HENRY MURRAY, 9 Plaintiff, 10 v. 11 WALLACE, et al., 12 Defendants. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1
P la i n tiff was provided with notice of the requirements for opposing a motion for summary judgment by the C o u r t in an order filed on June 1, 2006. Klingele v. Eikenberry, 849 F.2d409 (9th Cir. 1988). (Doc. 13.)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA Case No. 1:02-cv-05978-LJO-DLB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE DENIED (Doc. 47) / OBJECTIONS DUE WITHIN THIRTY DAYS

I.

Findings A. Procedural History

Henry Murray ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's amended complaint, filed April 3, 2003, against defendants M. Wallace and R. Corley ("Defendants") on Plaintiff's retaliation claim. On August 15, 2008, Defendants filed a motion for summary judgment. (Doc. 47.) On November 26, 2008, Plaintiff filed an opposition to Defendants' motion, after obtaining an extension of time. (Doc. 55.)1 On December 5, 2008, Defendants filed their reply to Plaintiff's opposition and their objections to Plaintiff's facts in Opposition. (Docs. 56 & 57.)

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B.

Summary Judgment Standard

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a Summary Judgment Motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 2

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T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). In resolving the Motion for Summary Judgment, the Court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 124445 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). // //

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C. 1.

Undisputed Facts2 Plaintiff transferred to Pleasant Valley State Prison (PVSP) on November 14, 2000.

2. 3.

Plaintiff's property arrived at PVSP at a later date. On December 5, 2000, Plaintiff was ducated to Receiving and Release (R&R) to retrieve his property.

4. 5. 6.

Defendants Corley and Wallace were working in R&R. Defendant Corley issued Plaintiff his property. Defendant Corley informed Plaintiff that a number of items were not allowed within the institution.

7.

Plaintiff was informed that the property could be donated, or sent home at his expense.

8.

Plaintiff inquired about the grievance procedure for challenging the confiscated property.

9.

Defendant Corley informed Plaintiff that the property would be held in R&R until the resolution of his grievance.

"Any party opposing a motion for summary judgment or summary adjudication shall reproduce the i t e m i z e d facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those facts t h a t are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, d e p o sitio n , interrogatory answer, admission or other document relied upon in support of that denial." Local Rule 562 6 0 ( b ) . In this instance, Plaintiff did not comply with the Local Rule. Plaintiff submitted an Opposition which in c l u d e d a Facts in Dispute section. However, Plaintiff did not admit undisputed facts or deny facts that are d i s p u t e d . Therefore, Defendants' Statement of Undisputed Facts is accepted except where contradicted by Plaintiff's v e rifie d amended complaint and opposition. Plaintiff's verified amended complaint and opposition may be treated a s opposing affidavits to the extent that they are verified and set forth admissible facts (1) within Plaintiff's personal k n o w l e d g e and not based merely on Plaintiff's belief and (2) to which Plaintiff is competent to testify. Jones v. B la n a s , 393 F.3d 918, 923 (9th Cir. 2004); Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998); McElyea v . Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987); Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985). D e fe n d a n ts object to Plaintiff's Disputed Facts at Opposition p. 2:18-3:6 on the grounds that Plaintiff does n o t provide or cite any supportive evidence. (Doc. 57, p. 1.) As stated previously, a verified opposition to a motion f o r summary judgment may also be considered as an opposing affidavit for purposes of the summary judgment rule if it is based on facts within the pleader's personal knowledge. Johnson, 134 F.3d at 1399-1400. Defendants' o b j e c tio n here is denied. D e fe n d a n ts also object to Opposition p. 3:4-6 on the grounds that it is a legal conclusion. (Id., p. 2.) Legal c o n c lu s io n s are not facts and therefore the Court sustains Defendants' objection here.

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10.

Plaintiff claims he filled out a trust account slip to send the property home, and prepaid the postage by giving defendant Corley stamps.

11.

A few weeks later, Plaintiff received the trust account slip and the unused stamps with a note from Corley that the total cost was only $5.07, but he used 17 stamps totaling $5.61 "just to be safe."

12. 13. 14.

Plaintiff's confiscated property was boxed and sealed. Plaintiff filed a grievance regarding the confiscated property. When Plaintiff contacted R&R and asked that his property be sent home, he was informed that R&R did not have his property.

15.

The alleged retaliation by defendants Corley and Wallace has "absolutely not" affected Plaintiff's willingness to file administrative grievances.

16.

Since December 2000, Plaintiff has filed approximately eighty-two administrative grievances.

17.

The alleged retaliation by defendants Corley and Wallace has not affected Plaintiff's willingness to file lawsuits.

18. 19.

Since December 2000, Plaintiff has filed at least four civil rights lawsuits. If Plaintiff feels an adverse situation is affecting him he will file an appeal or a lawsuit, or do whatever he has to do to better the situation.

D.

Analysis 1. Summary of Amended Complaint

In his amended complaint, Plaintiff alleges that defendants Corley and Wallace retaliated

22 against Plaintiff for inquiring about and filing grievances concerning some of Plaintiff's 23 confiscated property. Plaintiff grieved the confiscation of his property. Corley allegedly 24 informed Plaintiff that Plaintiff's confiscated property would remain at R&R pending the 25 resolution of Plaintiff's grievance. Plaintiff alleges that he completed the grievance process and 26 lost. Plaintiff alleges that he requested his confiscated property be sent home. Plaintiff alleges 27 that his property was no longer at R&R, but had not been sent home. Plaintiff alleges that 28 defendants Corley and Wallace lost or destroyed Plaintiff's confiscated property because Plaintiff 5

1 filed a grievance against them. 2 3 2. Claim for Relief - Retaliation Allegations of retaliation against a prisoner's First Amendment rights to speech or to

4 petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 5 (9th Cir. 1985); see also Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Valandingham v. 6 Bojorquez, 866 F.2d 1135 (9th Cir. 1989). "Within the prison context, a viable claim of First 7 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 8 adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that 9 such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did 10 not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 56711 68 (9th Cir. 2005). An allegation of retaliation against a prisoner's First Amendment right to file 12 a prison grievance is sufficient to support claim under section 1983. Bruce v. Ylst, 351 F.3d 13 1283, 1288 (9th Cir. 2003). 14 Plaintiff transferred to Pleasant Valley State Prison (PVSP) on November 14, 2000.

15 (Undisputed Fact (UF) 1). Plaintiff's property arrived at PVSP at a later date. (UF 2). On 16 December 5, 2000, Plaintiff was ducated to Receiving and Release (R&R) to retrieve his 17 property. (UF 3). Defendants Corley and Wallace were working in R&R. (UF 4). Defendant 18 Corley issued Plaintiff his property. (UF 5). Defendant Corley informed Plaintiff that a number 19 of items were not allowed within the institution. (UF 6). Plaintiff was informed that the property 20 could be donated, or sent home at his expense. (UF 7). Plaintiff inquired about the grievance 21 procedure for challenging the confiscated property. (UF 8). Defendant Corley informed Plaintiff 22 that the property would be held in R&R until the resolution of his grievance. (UF 9). Plaintiff 23 claims he filled out a trust account slip to send the property home, and prepaid the postage by 24 giving defendant Corley stamps. (UF 10). A few weeks later, Plaintiff received the trust account 25 slip and the unused stamps with a note from Corley that the total cost was only $5.07, but he used 26 17 stamps totaling $5.61 "just to be safe." (UF 11). Plaintiff's confiscated property was boxed 27 and sealed. (UF 12). Plaintiff filed a grievance regarding the confiscated property. (UF 13). 28 When Plaintiff contacted R&R and asked that his property be sent home, he was informed that 6

1 R&R did not have his property. (UF 14). The alleged retaliation by defendants Corley and 2 Wallace has "absolutely not" affected Plaintiff's willingness to file administrative grievances. 3 (UF 15). 4 Defendants argue that they are entitled to summary judgment on the grounds that

5 Plaintiff's First Amendment rights were not chilled. Plaintiff in his deposition stated that the 6 alleged retaliation by Corley and Wallace has "absolutely not" affected his willingness or ability 7 to file administrative grievances. (UF 15). Plaintiff continued to file grievances, approximately 8 eighty-two since December 2000. (UF 16.) Plaintiff also stated in his deposition that the alleged 9 retaliation has not affected his willingness to file lawsuits. (UF17.) He has filed at least four 10 civil rights lawsuits since the alleged retaliation. (UF 18.) Plaintiff stated in his deposition that 11 he will file an appeal or a lawsuit, or do whatever he has to do to better the situation. (UF 19.) 12 Defendants argue that Plaintiff's First Amendment rights were not chilled by Defendants' alleged 13 actions because Plaintiff continued to file grievances and lawsuits after the alleged incident. 14 15 a. Chilling the Exercise of First Amendment Rights

One of the necessary elements of a retaliation claim is that the defendants' adverse action

16 chilled the plaintiff's exercise of his First Amendment rights. Rhodes v. Robinson, 408 F.3d 17 559, 567-68 (9th Cir. 2005) ("Rhodes"). However, "[s]peech can be chilled even when not 18 completely silenced." Id. at 568. "[It] would be unjust to allow a defendant to escape liability 19 for a First Amendment violation merely because an unusually determined plaintiff persists in his 20 protected activity . . . ." Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th 21 Cir. 1999) ("Mendocino"). The correct inquiry to determine liability is "whether an official's 22 acts would chill or silence a person of ordinary firmness from future First Amendment 23 activities." Id. at 1300 (internal quotation and citation omitted). 24 In reaching its conclusion in Rhodes, the Ninth Circuit cited to Mendocino, where the

25 Ninth Circuit, inter alia, reversed a grant of summary judgment on claims of First Amendment 26 violations. There, the Ninth Circuit concluded that while the description of the elements of a 27 First Amendment claim may be read to suggest that a plaintiff must demonstrate that his speech 28 was actually inhibited or suppressed, it requires only a demonstration that defendants "intended 7

1 to interfere with [plaintiff's] First Amendment rights." (Id.) (citation omitted) (emphasis in 2 original). 3 Here, Plaintiff alleges that defendants Corley and Wallace lost or destroyed Plaintiff's

4 confiscated property without justification in order to retaliate against him for exercising his First 5 Amendment right to file a grievance against a correctional officer. A trier of fact could find that 6 seizure and destruction of property is adverse action that would chill or silence a person of 7 ordinary firmness from future First Amendment activities. See Rhodes, 408 F.3d at 568 8 (arbitrary confiscation and destruction of plaintiff's property constituted an adverse action that 9 could chill a plaintiff's First Amendment rights). Viewing the evidence in the light most 10 favorable to the nonmoving party, defendants have failed to demonstrate that they are entitled to 11 summary judgment as a matter of law. 12 II. 13 Conclusion and Recommendation Based on the foregoing, the Court HEREBY RECOMMENDS that Defendants' motion

14 for summary judgment, filed on August 15, 2008, be DENIED. 15 These Findings and Recommendations will be submitted to the United States District

16 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 17 thirty (30) days after being served with these Findings and Recommendations, the parties may 18 file written objections with the court. The document should be captioned "Objections to 19 Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file 20 objections within the specified time may waive the right to appeal the District Court's order. 21 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 26 27 28 8 IT IS SO ORDERED. Dated: 3b142a

February 3, 2009

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE