Stewart v. Mr. Berkebile et al
Filing
114
ORDER adopting in part 104 Findings and Recommendations; granting 70 Motion for Summary Judgment; denying 76 Motion for Summary Judgment; granting in part and denying in part 80 Motion for Summary Judgment; denying 100 Motion for Protec tive Order; granting 106 Motion for Extension of Time to File Objection to Findings and Recommendations; granting 107 Revised Motion for Extension of Time to File Objection to Findings and Recommendations; denying 111 Motion for Sanctions. CCA Defendants and Stewart shall file supplemental briefing, and accompanying affidavits as described. Signed by Judge Brian Morris on 2/22/2019. Mailed to Stewart. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
CV-15-89-GF-BMM
LAURENCE STEWART,
Plaintiff,
vs.
ORDER
MR. BERKEBILE, MS. ARNOLD,
MR. SPIEGLE, MR. WEAVER,
MIKE BATISTA, LORAINE
WODNIK, and COLLEEN
AMBROSE,
Defendants.
INTRODUCTION
United States Magistrate Judge John Johnston entered Findings and
Recommendations on August 30, 2018, on the following motions: Defendants
Colleen Ambrose, Mike Batista, and Loraine Wodnik’s (“State Defendants”)
Motion for Summary Judgment (Doc. 70); Stewarts’s Motion for Summary
Judgment (Doc. 76); Defendants Mr. Berkebile, Ms. Arnold, Mr. Spiegle, and Mr.
Weaver’s (“CCA Defendants”) Motion for Summary Judgment (Doc. 80); and
Stewart’s Motion for Protective Order (Doc. 100). (Doc. 104.) Stewart filed a
Motion for Extension to File Objection to Findings and Recommendations on
1
September 19, 2018. (Doc. 106.) Stewart further filed a Revised Motion for
Extension of Time to File Objection to Findings and Recommendations on
September 24, 2018. (Doc. 107.) Stewart also filed a Motion for Investigation and
Sanctions on October 1, 2018. (Doc. 111.)
BACKGROUND
Montana State Prison (“MSP”) Warden Leroy Kirkegard served Stewart a
memorandum in regard to Stewart’s abuse of the grievance procedure on May 27,
2015. (Doc. 77-1 at 1.) The memorandum notified Stewart that an abuse of the
grievance procedure “may include, but is not limited to, use of profanity, threats,
abusive or demeaning language; submitting an excessive number of grievances; or,
submitting multiple grievances in reference to the same issues.” Id. The
memorandum explained that Stewart’s past and current grievances demonstrated “a
pattern of abusive and demeaning language, condescending comments, issues that
have been previously addressed, and grievances where [Stewart] attempt[ed to] use
the process in a retaliatory manner when [Stewart] disagree[d] with a prior level
response.” Id. The memorandum warned Stewart that future or current grievances
that continued to demonstrate this “pattern of abuse of the grievance procedure
[would] be returned to [Stewart] unanswered and may result in further restrictions
per MSP 3.3.3.” Id. at 3.
2
Stewart was transferred from MSP to Crossroads Correctional Center
(“CCC”) on June 9, 2015. (Doc. 72-3 at 1.) Stewart filed an Informal Resolution
Form at CCC on July 2, 2015. (Doc. 77-1 at 5.) Stewart’s Informal Resolution
Form, however, was directed to MSP staff. Id. Stewart’s Informal Resolution Form
provided as follows:
I found a very interesting case: Brodheim v. Cry 584 F.3d 1262 (9th Cir.
2009). Please read this case. It states that an I/M cannot be punished for
hostile, abusive, threatening or sexual language in a grievance. This is the
law. All of those grievances not processed and my “restriction” was all
illegal. Now I know I can say that the warden is a little bitch who is too
afraid to come to the high side and confront me like a man. He knows if he
came to the high side, someone would probably punch him in that stupid
fucking mouth of his. Anyone else who follows the warden’s illegal
instructions is a cunt. A dirty diseased cunt, to be more accurate. To the
warden, I am only glad I am not black or you racist sheep fucking hicks
would really be giving me the shaft. Start doing your job and stop looking
for reasons to not process grievances based solely on the fact I called you
mean names. Grow up.
Id. Stewart wrote the following in the “Action Requested” section of his Informal
Resolution Form: “Please learn the fucking law and follow it. Stop being childish
uneducated hicks and investigate issues even if they are presented to you in a less
than robotic way. Cunt Cunt Cunt Cunt.” Id.
Stewart received a Disciplinary Infraction Report/Notice of Hearing
(“Disciplinary Infraction Report”) from CCC Grievance Coordinator Arnold on
July 2, 2015. (Doc. 77-1 at 9.) The Disciplinary Information Report charged
Stewart with violating Rule No. 4235. Id. Rule 4235 provides as follows:
3
“Threatening any other person to include, staff, volunteers, visitors, vendors,
members of the public, etc. with bodily harm. Verbal or written statements or
engaging in physical conduct causing fear in another person.” Id. Defendant
Weaver determined that Stewart had violated Rule 4235. (Doc. 104 at 7.) Weaver
sentenced Stewart to twenty days disciplinary detention with time served. Id.
Stewart filed a disciplinary appeal on July 7, 2015. Id. CCC affirmed Weaver’s
decision. Id. at 8.
CCC placed Stewart on a grievance restriction on July 10, 2015. Id. The
notice of grievance restriction stated:
You were under a grievance restriction while at MSP. According to MSP
Policy 3.3.3 when an inmate is transferred while on a grievance restriction,
the new facility at which they arrive can decide to continue or discontinue
that restriction. We have decided to continue that grievance restriction. This
means that: You are on a grievance restriction until further notice; all
grievances that you file will not be processed due to the restriction.
(Doc. 77-1 at 28.) CCC subsequently returned several unprocessed informal
resolution forms to Stewart. (Doc. 104 at 8.)
Stewart’s infraction imposed by CCC increased Stewart’s custody level to
maximum. Id. Stewart was transferred back to MSP on August 25, 2015. Id.
Stewart filed his Complaint on October 6, 2015. (Doc. 2.) Stewart ultimately
alleges that the CCA Defendants and the State Defendants violated Stewart’s right
to free speech and right to access the courts when the Defendants placed Stewart
on a grievance restriction. Id. at 8.
4
DISCUSSION
I. Findings and Recommendations
Judge Johnston determined that the action by CCA Defendants and State
Defendants (collectively “Defendants”) to discipline Stewart based on his written
grievance failed to constitute a violation of Stewart’s First Amendment rights.
(Doc. 104 at 20.) Judge Johnston further concluded that Defendants are entitled to
qualified immunity even if Defendants violated Stewart’s constitutional rights. Id.
at 23. Judge Johnston likewise determined that even if Defendants action in placing
Stewart on a grievance restriction violated Stewart’s First Amendment rights, the
Defendants still would be entitled to summary judgment on the basis of qualified
immunity. Id. Judge Johnston recommended that this Court grant both the State
Defendants’ Motion for Summary Judgment and the CCA Defendants’ Motion for
Summary Judgment. Id. at 30. Judge Johnston recommended that this Court deny
Stewart’s Motion for Summary Judgment and Stewart’s Motion for Protective
Order. Id.
CCA Defendants timely filed an objection to a limited portion of Judge
Johnston’s Findings and Recommendations on September 12, 2018. (Doc. 105.)
Stewart likewise timely filed his objections to Judge Johnston’s Findings and
Recommendations on October 1, 2018. (Doc. 110.)
5
The Court reviews de novo Findings and Recommendations to which a party
timely objects. 28 U.S.C. § 636(b)(1). A party makes a proper objection by
identifying the parts of the magistrate’s disposition that the party finds
objectionable, and presenting legal argument and supporting authority, such that
the district court is able to identify the issues and the reasons supporting a contrary
result.” Montana Shooting Sports Ass’n v. Holder, 2010 WL 4102940, at *2 (D.
Mont. Oct. 18, 2010) (citation omitted).
The Court reviews findings and recommendations to which no party objects
for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656
F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a
“definite and firm conviction that a mistake has been committed.” United States v.
Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
A. Summary Judgment Standard
A party may move for summary judgment on all or part of a claim. Fed. R.
Civ. P. 56(a). If no genuine dispute of material fact exists, then summary judgment
is proper, and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). The Court will grant summary judgment where the documentary
evidence produced by the parties only permits one conclusion. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986).
6
A moving party, who does not carry the burden of proof at trial, carries the
“initial burden of production” on a summary judgment motion. Nissan Fire &
Marine Insurance Company, LTD v. Fritz Companies, Inc., 210 F.3d 1099, 1102
(2000). The movant may fulfill her initial burden of production in one of two ways.
Id., at 1106. The movant may produce “affirmative evidence negating an essential
element of the nonmoving party’s claim.” Id., at 1103. The movant alternatively
may show that the “nonmoving party did not have enough evidence to carry” her
burden of proof at trial. Id. If the movant meets her burden of production, the
nonmovant must produce evidence to support her claim. Id. Rule 56 mandates
summary judgment where the nonmovant’s production of evidence fails to create a
genuine issue of material fact. Id. If the movant fails to meet her initial burden of
production, then the nonmovant may defeat the motion for summary judgment
without producing any evidence. Id.
B. First Amendment Analysis
Judge Johnston correctly stated that Stewart must satisfy the following five
elements to assert a viable First Amendment retaliation claim: “(1) An assertion
that a state actor took some adverse action against an inmate (2) because of (3) that
prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise
of his First Amendment rights, and (5) that action did not reasonably advance a
7
legitimate correctional goal.” (Doc. 104 at 10) (citing Rhodes v. Robinson, 408
F.3d 559, 567-68 (9th Cir. 2005)).
Judge Johnston determined that Stewart satisfied the first, second, and
fourth elements of the Rhodes test. (Doc. 104 at 10-11, 14.) The Court will review
for clear error Judge Johnston’s analysis on the first, second, and fourth elements
of the Rhodes test. See McDonnell Douglas Corp., 656 F.2d at 1313. The Court
finds no error and will adopt Judge Johnston’s reasoning on those three factors.
Judge Johnston determined, however, that Stewart had failed to satisfy the
third and fifth elements of the Rhodes test. (Doc. 104 at 14, 20.) Stewart objects
only to Judge Johnston’s determinations on those elements. (Doc. 110 at 6-11.)
The Court will review de novo Judge Johnston’s findings on the protected conduct
and legitimate correctional goal elements of the Rhodes test. See 28 U.S.C. §
636(b)(1).
i.
Element Three: Protected Conduct
Judge Johnston determined that Stewart’s claim failed to satisfy the
protected conduct element of the Rhodes test. (Doc. 104 at 11.) Judge Johnston
reasoned that the language found in Stewart’s grievance constituted a threat and, as
such, was not protected by the First Amendment. Id. Stewart argues that Judge
Johnston arbitrarily determined that Stewart’s grievance failed to constitute
protected conduct under the First Amendment. (Doc. 110 at 6.)
8
Stewart claims that his grievance does not meet the definition of a true
threat. Id. Stewart contends that the language in his grievance proves comparable
to the language at issue in United States v. Bagdasarian, 652 F.3d 1113 (9th Cir.
2011). Stewart argues that Judge Johnston would not have found that Stewart’s
grievance constituted a true threat if Judge Johnston would have analyzed properly
Stewart’s statements and the case law. (Doc. 110 at 7.)
The First Amendment pervades prison walls as they “do not form a barrier
separating prison inmates from the protections of the Constitution.” Turner v.
Safley, 482 U.S. 78, 84 (1987). The First Amendment “right to file prison
grievances” stands among the various rights that inmates retain. Bruce v. Ylst, 351
F.3d 1283, 1288 (9th Cir. 2003). “[P]rison officials may not punish an inmate
merely for using ‘hostile, sexual, abusive or threatening’ language in a written
grievance.” Brodheim, 584 F.3d at 1282. The Ninth Circuit has noted, nonetheless,
that “there may be situations in which prison officials properly discipline inmates
for criminal threats contained in written grievances.” Id.
True threats, however, stand outside the purview of the First Amendment.
Virginia v. Black, 538 U.S. 343, 359 (2003). “‘True threats’ encompass those
statements where the speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a particular individual or group of
individuals.” Id. “The speaker need not actually intend to carry out the threat.” Id.
9
at 359-60. A prohibition on true threats seeks to protect individuals “from the fear
of violence, from the disruption that fear engenders, and from the possibility that
the threatened violence will occur.” R.A.V. v. City of St. Paul, Minnesota, 505 U.S.
377, 388 (1992).
An objective standard governs true threats. See United States v. OrozcoSantillan, 903 F.2d 1262, 1265 (9th Cir. 1990), overruled in part on other grounds
by United States v. Hanna, 293 F.3d 1080, 1088 n.5 (9th Cir. 2002). A statement
constitutes a true threat if “a reasonable person would foresee that the statement
would be interpreted by those to whom the maker communicates the statement as a
serious expression of intent to harm or assault.” Orozco-Santillan, 903 F.2d at
1265. Judge Johnston, in making his determination, juxtaposed the language in
Stewart’s grievance with the language of the grievances in both Bradley v. Hall, 64
F.3d 1276 (9th Cir. 1995), and in Brodheim. (Doc. 104 at 12-13.)
Brodheim submitted an “inmate request for interview” that stated as follows:
This is not a “staff complaint”—any more than was my appeal involving
C/O Lindstrom. I am requesting information (see part B). Any misconduct
by C/O Hearsum or C/O Hernandez was incidental to the “story.” I want to
know why I could not walk thru Unit I and I think I’m entitled to an answer.
You’re such a “stickler” for the rules as you “see” them. Why not teach staff
that they are required to respond informally to 602’s w/in 10 working
days—or is it your position that Title 15 applies only “against” inmates? Or,
is it your position that I am not entitled to the information I request? What
exactly is your position, Mr. Cry—obstruct 602’s at all costs? ? ?
This appeal was timely submitted to C/O Hearsum w/in 15 working days.
(See my 6/18 note.)
10
Thank you for your cooperation.
Brodheim, 584 F.3d at 1265 (emphasis in original).
Bradley’s grievance included similar language as the language in
Brodheim’s grievance. Bradley’s grievance submitted to the prison guard’s
superior provided as follows:
Her [the guard’s] actions shows her misuse of her authority and her
psychological disorder needs attention. Then you wonder why things happen
like that guard getting beat down? I suggest you talk to this woman and have
her act professional instead of like a child.
Bradley, 64 F.3d at 1278.
Judge Johnston ultimately determined that Stewart’s grievance proved
distinguishable from the grievances at issue in Bradley and Brodheim. Judge
Johnston discerned that Stewart, unlike Bradley and Brodheim, “surrounded his
threats with profanity and obscenities to such an extent that it was reasonable to
construe the language [in the grievance] as a true threat.” (Doc. 104 at 14.)
Judge Johnston correctly noted that the language in Brodheim and Bradley
proved distinguishable from the language in Stewart’s grievance as Stewart’s
grievance involved sexually explicit language and profanity. Sexually explicit or
profane language, by itself, however, fails to exist as a touchstone of the First
Amendment true threats analysis. See Brodheim, 584 F.3d at 1271 (citing Bradley,
64 F.3d at 1281-82) (“disrespectful language in a prisoner’s grievance is itself
protected activity under the First Amendment”). Stewart’s grievance, taken as a
11
whole, must demonstrate “a serious expression of intent to commit an act of
unlawful violence.” See Virginia, 538 U.S. at 359. And a reasonable person must
foresee that the language in Stewart’s grievance would be interpreted by the MSP
Warden as a “serious expression to harm or assault.” See Orozco-Santillan, 903
F.2d at 1265.
A reasonable person would not foresee that Stewart’s grievance would be
construed as a serious expression to harm or assault MSP Warden Kirkegard.
Stewart stated: “Now I know I can say that the warden is a little bitch who is too
afraid to come to the high side and confront me like a man. He knows if he came to
the high side, someone would probably punch him in that stupid fucking mouth of
his.” (Doc. 77-1 at 5.) Stewart’s language fails to rise to the level of a “serious
expression of an intent to commit an act of unlawful violence” to the Warden
Kirkegard. Virginia, 538 U.S. at 359.
Stewart never stated that he would punch Warden Kirkegard “in that stupid
fucking mouth of his.” See (Doc. 77-1 at 5.) Stewart likewise did not encourage
others to punch Warden Kirkegard in the mouth. See id. In fact, Stewart’s
grievance was viewed only by Stewart and those involved in the grievance process.
See id. at 9. Stewart instead merely observed that if Warden Kirkegard came to the
high side that a possibility existed that an inmate would punch Kirkegard on his
own volition. See id. at 5. Stewart’s language in his grievance did not rise to the
12
level of a true threat. Stewart’s language in his grievance—though admittedly
coarse and offensive—proves entitled to First Amendment protection. See
Brodheim, 584 F.3d at 1282.
ii.
Element Five: Legitimate Correctional Goal
CCC disciplined Stewart for violating Rule 4235. (Doc. 104 at 15.) CCC
issues a Rule 4235 citation to an inmate for “[t]hreatening any other person to
include staff, volunteers, visitors, vendors, member of the public, etc. with bodily
harm. Verbal or written statements or engaging in physical conduct causing fear in
another person.” (Doc. 72-5 at 13.) Judge Johnston determined that Rule 4235, on
its face, “reasonably advances a legitimate correctional goal.” (Doc. 104 at 15.)
Judge Johnston likewise concluded that Rule 4325, as applied to Stewart, proved
“reasonably related to legitimate penological interests.” Id. at 17.
Stewart asserts that Rule 4235 fails to advance a legitimate penological
interest because Rule 4235 penalizes speech that proves protected by the First
Amendment. Id. at 9. Stewart maintains that Rule 4325 fails to “define the
elements of a threat,” and that this failure allows correction officers to decide
arbitrarily the meaning of a threat. Id. Stewart concedes that punishing an inmate
for “true threats” under the “legal definition” would be constitutional. Id. Stewart
argues that using Rule 4235 to penalize speech that is “anything less than a true
threat” would be unconstitutional. Id. Stewart ultimately contends that Judge
13
Johnston’s determination that Rule 4235 proves reasonably related to legitimate
penological interests conflicts with Ninth Circuit case law. Id. at 10.
A prison regulation that infringes on an inmate’s First Amendment rights
remains constitutional so long as the regulation “is reasonably related to legitimate
penological interests.” Turner, 482 U.S. at 89. The Supreme Court has laid out four
factors relevant in determining whether the regulation at issue proves reasonable.
Id. “First, there must be ‘valid, rational connection’ between the prison regulation
and the legitimate [and neutral] interest put forward to justify it.” Id. at 89-90
(quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 3232 (1984)).
Second, the Court should determine “whether there are alternative means of
exercising the right that remain open to prison inmates.” Turner, 482 U.S. at 90.
Third, the Court should evaluate “the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of
prison resources generally.” Id. Fourth, whether ready alternatives exist. Id. at 9091.
The Ninth Circuit in Bradley determined that the rule at issue failed to
satisfy the first factor of the Turner test. 64 F.3d at 1281. Bradley was cited for
using disrespectful language in his grievance. Bradley, 64 F.3d at 1278. The
citation proclaimed that Bradley’s grievance violated a rule that prohibits directing
“hostile, sexual, abusive or threatening language or gestures, verbal or written
14
toward another person.” Id. (citing Or. Admin. R. 291-105-015(2)(g)). The Ninth
Circuit acknowledged that the prison possessed a “valid interest in the peaceable
operation of the prison through the insistence on respect, rather than through
violent confrontation.” Id. at 1281. The Ninth Circuit reasoned, however, that “the
link between this important purpose and the disrespect rules as applied to formal
written grievances is weak.” Id. The Ninth Circuit, in its review of Bradley in
Brodheim, determined that prison rules that penalize disrespectful language in
grievances fail to advance legitimate penological interests. Brodheim, 584 F.3d at
1273.
Rule 4235 proves distinguishable from the disrespect rule at issue in
Bradley. Rule 4235, on its face, prohibits an inmate from “[t]hreatening any other
person to include staff, volunteers, visitors, vendors, members of the public, etc.
with bodily harm. Verbal or written statements or engaging in physical conduct
causing fear in another person.” (Doc. 72-5 at 13.) Rule 4235 equally does not
punish inmates simply for using disrespectful language. See id. The Court must
determine, therefore, whether Rule 4235’s ban on threatening language proves
rationally related to legitimate penological interests. See Turner, 482 U.S. at 89.
Rule 4235 satisfies the Turner test. Defendants assert that “allowing inmates
to threaten prison staff would interfere with staff’s ability to perform their jobs,
impact staff and resource allocation, put staff and inmates at risk, and directly
15
contradict [the Department of Corrections’s] goal of rehabilitation.” (Doc. 104 at
16) (citing Doc. 72 at ¶ 70.) Defendants’ desire to protect prison staff from inmates
constitutes a legitimate and neutral governmental interest. Defendants’ interest
proves rationally connected to Rule 4235’s ban on inmates use of threatening
language directed at prison staff.
The Court likewise determines that Rule 4235 provides for alternative means
for inmates to exercise their First Amendment rights as Rule 4235 prohibits only
threatening speech. See (Doc. 72-5 at 13.) Rule 4235’s penalization of threatening
speech also stands to benefit other inmates, the guards, and prison resources. See
(Doc. 72 at 11-12.) Finally, no other ready alternatives prove available to achieve
Defendants’ stated objectives. See id. at 12. Threats must be judged by an objective
standard. See Orozco-Santillan, 903 F.2d at 1265. As such, the legitimate security
concerns created by grievances that contain threatening language cannot be served
by procedures that would allow the threatened prison employee to be shielded from
the grievance. See Bradley, 64 F.3d at 1281 (“legitimate security concerns would
be largely served by procedures that require grievances to be in writing and shield
those prison officials who are in direct contact with the inmates from reading any
insulting remarks that might be contained in those grievances.”) Rule 4235 proves
constitutional on its face.
16
The Court affirms Judge Johnston’s conclusion that Rule 4235, on its face,
proves constitutional. See (Doc. 104 at 17.) The Court disagrees with Judge
Johnston’s determination, however, that Rule 4235 remains constitutional as
applied to Stewart. See id. As the Court noted above, the language in Stewart’s
grievance failed to rise to the level of threatening language. Rule 4235 as applied
to Stewart’s grievance represents an “exaggerated response” to furthering the
prison’s legitimate penological interest in maintaining the safety of its employees.
Bradley, 64 F.3d at 1280. Rule 4235 proves unconstitutional as applied to the
language in Stewart’s grievance.
C. Qualified Immunity
Judge Johnston determined that State Defendants and CCA Defendants
proved entitled to qualified immunity even if Stewart’s First Amendment rights
were violated by being punished pursuant to Rule 4235 and by being placed on a
grievance restriction. (Doc. 104 at 23.)
CCA Defendants object to the qualified immunity portion of Judge
Johnston’s Findings and Recommendations on the basis that the law precludes
CCA Defendants from the protection of qualified immunity. (Doc. 105 at 2.) CCA
Defendants request that this court modify pages twenty through twenty-seven to
reflect that only State Defendants prove entitled to qualified immunity. Id. at 3.
17
CCA Defendants still maintain, nonetheless, that they remain entitled to summary
judgment. Id.
Stewart likewise contends that CCA Defendants are not entitled to qualified
immunity. (Doc. 110 at 12.) Stewart asserts that what constitutes a criminal threat
proves clearly established under First Amendment precedent. Id. at 12-13. Stewart
also contends that Brodheim and Bradley clearly prove that the grievance
restriction placed on Stewart was unconstitutional. Id. at 15.
i.
State Defendants
Qualified immunity seeks to balance two competing interests: (1) the interest
in holding “public officials accountable when they exercise power irresponsibly;”
and (2) the interest in shielding “officials from harassment, distraction, and liability
when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
231 (2009). Qualified immunity “protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’” Id.
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Government officials may invoke qualified immunity upon satisfaction of
the following two prongs: (1) “whether the facts that a plaintiff has alleged . . . or
shown . . . make out a violation of a constitutional right;” and (2) “whether the
right at issue was clearly established at the time of the defendant’s alleged
18
misconduct.” Saucier v. Kantz, 533 U.S. 194, 201 (2001). The Court possesses the
discretion to decide which of the Saucier prongs “should be addressed first in light
of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
Whether a right proves clearly established “turns on the objective
reasonableness of the action, assessed in the light of the legal rules that were
clearly established at the time it was taken.” Id. at 244 (internal quotations and
citations omitted). “The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 463 U.S. 635, 640 (1987). “The protection of qualified
immunity applies regardless of whether the government official’s error is a mistake
of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”
Pearson, 555 U.S. at 231 (internal quotations and citation omitted).
CCC cited Stewart for violating Rule 4235 for using threatening language
towards MSP Warden Kirkegard in Stewart’s Informal Resolution Form while
incarcerated at CCC. (Doc. 77-1 at 5, 7.) Stewart alleges that he was cited for
using language in his Informal Resolution Form that proved protected by the First
Amendment as Stewart’s language failed to rise to the level of a true threat. (Doc.
110 at 10.) As noted by the Court above, Stewart was punished under Rule 4235
for using sexually explicit language and profanity rather than for making a true
threat. The facts at issue make out a violation of Stewart’s First Amendment rights.
19
Stewart’s First Amendment rights likewise were clearly established at the
time Stewart filed his Informal Resolution Form. [T]he prohibition against
retaliatory punishment is ‘clearly established law’ in the Ninth Circuit.” Pratt v.
Rowland, 65 F.3d 802, 806 (9th Cir. 1995). The Ninth Circuit likewise clearly
established that “prison officials may not punish an inmate merely for using
hostile, sexual, abusive or threatening language in a written grievance.” Bradley,
64 F.3d at 1282 (internal quotations omitted).
The Ninth Circuit has yet to clearly establish, however, whether “prison
officials may properly discipline inmates for criminal threats contained in written
grievances.” Id. at 1281-82. Given that the Ninth Circuit has prohibited prison
officials from punishing inmates for using “hostile, sexual, abusive or threatening
language in a written grievance,” no reasonable prison official could believe that
the language in Stewart’s grievance was not protected by the First Amendment.
Bradley, 64 F.3d at 1282. Qualified immunity, nonetheless, covers “mere mistakes
in judgement, whether the mistake is one of fact or one of law.” Butz v. Economou,
438 U.S. 478, 507 (1978). State Defendants prove entitled to the protections of
qualified immunity in regard to punishing Stewart for the language in his Informal
Resolution Form.
State Defendants equally prove entitled to qualified immunity for imposing a
grievance restriction on Stewart. MSP placed Stewart on a grievance restriction
20
pursuant to MSP 3.3.3 which provides as follows: “Abuse of the grievance
procedure by an inmate may include, but is not limited to, the use of profanity,
threats, abusive or demeaning language; submitting an excessive number of
grievance forms; or, submitting multiple grievances in reference to the same
issue(s). (Doc. 72-8 at 9.) State Defendants notified Stewart that his grievances
would not be processed if they continued to demonstrate an abuse of the grievance
process. (Doc. 77-1 at 1-2.)
The Ninth Circuit recently established that a prison official’s refusal to
process a grievance that failed to conform to the official’s “personal conception of
acceptable content” constituted “content-based discrimination that runs contrary to
First Amendment protections.” Richey v. Dahne, 733 Fed. Appx. 881, 883-84 (9th
Cir. 2018). The First Amendment prohibits State Defendants from refusing to
process grievances because the language in the grievances fails to conform to the
prison’s conception of acceptable content. See Richey, 733 Fed. Appx at 883-84.
The Ninth Circuit did not clarify this prohibition, however, until 2018. See Richey,
733 Fed. Appx at 881. State Defendants placed Stewart on a grievance in May of
2015. (Doc. 77-1 at 1.) Qualified immunity protects State Defendants.
ii.
CCA Defendants
Private prison guards, unlike government prison guards, may not invoke
qualified immunity. Richardson v. McKnight, 521 U.S. 399, 412 (1997). The
21
Supreme Court has yet to “express a view” on whether private defendants prove
entitled to such defenses in lieu of qualified immunity. Richardson, 521 U.S. at
414. The Supreme Court has noted, nonetheless, that there exists a “possibility that
private defendants faced with § 1983 liability . . . could be entitled to an
affirmative defense based on good faith and/or probable cause.” Id. at 413 (citing
Wyatt v. Cole, 504 U.S. 158, 169 (1992)).
The Ninth Circuit in Clement v. City of Glendale, 518 F.3d 1090, 1097 (9th
Cir. 2008), determined that a private towing company could assert a good faith
defense. The police department in Clement authorized Monterey Tow Service to
tow Virginia Clement’s 1981 Cadillac Eldorado Biarritz from a hotel parking lot.
518 F.3d at 1092.
Clement had filed a “planned non-operation” certificate (“PNO”) with the
California Department of Motor Vehicle. Clement, 518 F.3d at 1092.The PNOs
“allow vehicle owners to avoid paying for registration and insurance, so long as
they don’t drive on public roads or park in publicly accessible parking lots.” Id.
(citation omitted). The police officer ordered Clement’s vehicle towed as her
vehicle’s registration had expired and the officer believed that the vehicle was
parked in a publicly accessible parking lot. Id. The Ninth Circuit reasoned that
Monterey Tow Service “did its best to follow the law and had no reason to suspect
that there would be a constitutional challenge to its actions.” Id. at 1097.
22
CCA Defendants, as employees of a private prison, concede that they are not
entitled to qualified immunity. (Doc. 105 at 2.) CCA Defendants maintain,
however, that an award of summary judgment in their favor remains appropriate.
Id. CCA Defendants argue they are entitled to assert a good faith defense of the
type recognized by the scenario in Clement. See id.
CCA Defendants prove entitled to assert a good faith defense for their
placement of Stewart on a grievance restriction when Stewart was transferred to
CCC. Stewart was placed on a grievance restriction pursuant to MSP 3.3.3. while
he was incarcerated at MSP. (Doc. 77-1 at 1-2.) CCA Defendants, in July of 2015,
continued Stewart’s grievance restriction, as authorized by MSP 3.3.3. Id. at 28.
The Ninth Circuit determined in 2018 that prison officials were barred from
refusing to process grievances based on their content. See Richey, 773 Fed. Appx.
at 883-84. CCA Defendants “did [their] best to follow the law and had no reason to
suspect that there would be a constitutional challenge to [their] actions.” Clement,
518 F.3d at 1097. A good faith defense shields CCA Defendants from liability to
Stewart’s claim that CCA Defendants’ action in placing Stewart on a grievance
restriction violated his First Amendment rights.
It remains unclear on the record before the Court, however, as to whether
CCA Defendants may shield themselves from liability by having established a
good faith defense to their actions in sanctioning Stewart under Rule 4235. The
23
Court will defer a decision on this issue. CCA Defendants shall file a supplemental
brief, and accompanying affidavits, within thirty days of the date this order is filed.
Stewart shall have thirty days from receipt of CCA Defendants’ supplemental brief
to respond with his own brief and accompanying affidavits.
D. Motion for Protective Order
Judge Johnston determined that Stewart’s Motion for Protective Order (Doc.
100) should be denied. (Doc. 104 at 29.) Neither party filed objections. The Court
will review for clear error. See McDonnell Douglas Corp., 656 F.2d at 1313. The
Court finds no error and adopts in full Judge Johnston’s Findings and
Recommendations on Stewart’s Motion for Protective Order.
II. Motion for Investigation and Sanctions
Stewart requests that the Court “investigate and deliver appropriate
sanctions/ discipline” to Judge Johnston and “anyone else responsible for writing/
preparing” Judge Johnston’s Findings and Recommendations. (Doc. 111.) Stewart
contends that sanctions prove appropriate “due to a clear lack of due diligence in
citations and research and a biased analysis in clear opposition to established law.”
Id. CCA Defendants argue that Stewart’s motion proves frivolous as it stands
barred by judicial immunity. (Doc. 112 at 1-2.)
Judicial immunity shields judges from liability “for acts within the judicial
role.” Pierson v. Ray, 366 U.S. 547, 554-55 (1967). A plaintiff may overcome
24
judicial immunity in only two situations. Mireles v. Waco, 502 U.S. 9, 11 (1991).
First, a judge would not be immune from liability for “actions not taken in the
judge’s judicial capacity.” Id. Second, a judge would “not [be] immune for actions,
though judicial in nature, taken in the complete absence of all jurisdiction.” Id. at
11-12.
Judge Johnston remains shielded from liability by judicial immunity. Judge
Johnston issued his Findings and Recommendations in his judicial capacity. See
Mireles, 502 U.S. at 11. Judge Johnston possessed jurisdiction to issue his Findings
and Recommendations on the three pending motions for summary judgment and
Stewart’s motion for a protective order. See Mireles, 502 U.S. at 11-12. Stewart’s
Motion for Investigation and Sanctions must be denied.
ORDER
IT IS ORDERED that:
1. Stewart’s Motion for Extension to File Objection to Findings and
Recommendations (Doc. 106) is GRANTED.
2. Stewart’s Revised Motion for Extension of Time to File Objection to
Findings and Recommendations (Doc. 107) is GRANTED.
3. Judge Johnston’s Findings and Recommendations (Doc. 104) is
ADOPTED IN PART and OVERRULED IN PART.
25
4. State Defendants’ Motion for Summary Judgment (Doc. 70) is
GRANTED.
5. Stewart’s Motion for Summary Judgment (Doc. 76) is DENIED.
6. CCA Defendants Motion for Summary Judgment (Doc. 80) is
GRANTED IN PART and DENIED IN PART.
7. Stewart’s Motion for Protective Order (Doc. 100) is DENIED.
8. Stewart’s Motion for Investigation and Sanctions (Doc. 111) is
DENIED.
9. CCA Defendants and Stewart shall file supplemental briefing, and
accompanying affidavits, on whether CCA Defendants should be
shielded from liability by having established a good faith defense to their
actions to sanction Stewart under Rule 4235. CCA Defendants shall file
their brief, and accompanying affidavits, within thirty days of the filing
date of this order. Stewart shall file his brief, and accompanying
affidavits, in response to CCA Defendants within thirty days of Stewart’s
receipt of CCA Defendants’ brief.
DATED this 22nd day of February, 2019.
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?