Pruett v. Mueller et al
Filing
69
ORDER: The Court GRANTS Defendants Motion 33 for Summary Judgment, DISMISSES Plaintiffs Amended Complaint 12 with prejudice, and DENIES Plaintiff leave to file a Second Amended Complaint. Signed on 12/22/2014 by Judge Anna J. Brown. See attached 21 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JUSTIN WAYNE PRUETT,
Plaintiff,
v.
TIM MUELLER (Linn Co. Sheriff);
CAPTAIN BAGGETT (Linn Co. Captain);
SGT. SCHRADER (Linn Co. 1st Sgt.);
SGT. LANGLEY (Linn Co. 1st Sgt.);
SGT. TAYLOR (Linn Co. Sgt.); DOCTOR
MORGAN (Linn Co. Doctor); DON NELSON
(Linn Co. Mental Health); BEN NEWMAN
(Linn Co. Psychiatric Nurse
Practitioner); and MARILYN
STUTZMAN, R.N.,
Defendants.
JUSTIN WAYNE PRUETT
1083 Centennial Boulevard
Springfield, OR 97477
Plaintiff, Pro Se
1 - OPINION AND ORDER
6:13-cv-02157-BR
OPINION AND ORDER
GERALD L. WARREN
Law Office of Gerald Warren
901 Capitol Street NE
Salem, OR 97301
(503) 480-7252
Attorney for Defendants
BROWN, Judge.
This matter comes before the Court on Defendants’ Motion
(#33) for Summary Judgment.
For the reasons that follow, the
Court GRANTS Defendants’ Motion and DISMISSES this case with
prejudice in its entirety.
FACTUAL BACKGROUND
The material facts are undisputed and taken from the
parties’ submissions on summary judgment.
Plaintiff Justin Wayne Pruett was confined in the Linn
County Jail as a pretrial detainee on August 20, 2013.
Plaintiff
remained in the Linn County Jail until October 11, 2013, when he
was transferred to the Oregon State Hospital (OSH) for a mentalcompetency evaluation.
Plaintiff returned to Linn County Jail on
November 8, 2013, where he stayed until he was transferred to the
Oregon Department of Corrections on December 5, 2013.
On August 20, 2013, Lynn Morgan, M.D., prescribed Gabapentin
and Naproxen for Plaintiff’s wrist and back pain and a wrist
brace.
Dr. Morgan saw Plaintiff again on August 27, 2013, at
2 - OPINION AND ORDER
which time Plaintiff requested Dr. Morgan clear Plaintiff to
work.
Dr. Morgan refused because he was concerned work might
exacerbate Plaintiff’s injuries.
On August 22, 2013, Plaintiff was evaluated by Donald
Nelson, Ph.D.
Plaintiff and Dr. Nelson discussed depression,
anxiety, and attention-deficit hyperactivity disorder (ADHD).
Dr. Nelson scheduled Plaintiff to meet with J. Ben Newman, a
psychiatric mental-health nurse practitioner (PMHNP).
Plaintiff
saw PMHNP Newman on August 22, September 3, September 10, and
November 12, 2013.
On August 24, 2013, Plaintiff submitted an Inmate Request
Form (also known as a “kite”)1 to the mental-health unit
requesting an appointment.
After filling out an additional form,
Plaintiff met with Dr. Nelson on August 28, 2013.
At this
appointment Plaintiff primarily discussed his physical
impairments with Dr. Nelson and requested placement on a list of
inmates eligible to work.
On August 27, 2013, Plaintiff submitted a kite to his
supervisor in which he requested a second mattress to help with
his back pain and to be eligible to perform work in the Jail.
Jail personnel denied Plaintiff’s request on August 28, 2013,
because both the decision to provide a second mattress and to
1
The parties and declarants separately refer to this form
as either a “kyte” or “kite.”
3 - OPINION AND ORDER
make Plaintiff eligible for work were medical decisions.
On
August 28, 2013, Plaintiff requested a grievance form from his
supervisor.
His supervisor responded that Plaintiff must submit
a kite to the medical staff before he could be provided with a
grievance form because Plaintiff’s requests concerned medical
determinations.
Linn County Jail grievance procedures require an
inmate to submit a kite to the appropriate staff member before
filing a grievance.
On August 29, 2013, Plaintiff submitted a kite to the
medical staff requesting an urgent appointment to address muscle
spasms and pain in his back.
The medical staff forwarded the
request to the jail doctor.
On August 30, 2013, Plaintiff submitted a kite requesting to
see Dr. Nelson, whom he had seen two days earlier.
Mental-health
staff responded that Dr. Nelson had requested to see Plaintiff
monthly and that his next appointment was already scheduled.
Also on August 30, 2013, Plaintiff submitted a kite to the
medical staff regarding, among other issues, a second mattress.
Marilyn Stutzman, R.N., responded on September 2, 2013, that
Plaintiff had been examined by a doctor and did not meet the
criteria for a second mattress.
On September 2, 2013, Plaintiff submitted three separate
kites.
In his first kite Plaintiff requested an in-person
meeting with his supervisor to discuss his requests for a second
4 - OPINION AND ORDER
mattress, elbow brace, and “donut” to sit on.
Plaintiff’s
supervisor declined to meet with Plaintiff face-to-face and
instructed Plaintiff to file a grievance concerning his requests.
Plaintiff then submitted a kite to the medical unit in which he
requested a brace for his left elbow and an appointment with a
doctor about his back pain.
The medical unit responded Plaintiff
would be allowed to wear an elbow brace if somebody brought one
for him.
Plaintiff submitted a third kite to the mental-health
unit requesting to see Dr. Nelson for counseling on personal
matters.
On September 3, 2013, the mental-health unit responded
Plaintiff was only scheduled to see Dr. Nelson once per month,
but he was scheduled to see the mental-health nurse practitioner
that day.
Also on September 2, 2013, Plaintiff had an appointment with
R.N. Stutzman and reported having a ruptured disc in his back.
He again requested a second mattress and inquired about being
evaluated to be eligible to work.
R.N. Stutzman denied
Plaintiff’s request for a second mattress.
On September 3, 2013, Plaintiff had an appointment with
PMHNP Newman.
On September 4, 2013, Plaintiff submitted a kite to his
supervisor requesting a form with which to file a grievance
concerning his mental-health care.
In addition, Plaintiff
complained he was not receiving proper mental-health medication
5 - OPINION AND ORDER
and that he wanted to be placed on Adderall or Ritalin to treat
his ADHD.
R.N. Stutzman responded she would speak to PMHNP
Newman about Plaintiff’s mental-health care.
R.N. Stutzman met
with Plaintiff on September 4, 2013, at which time she instructed
Plaintiff to stop submitting multiple kites unless he had a new
or emergent problem.
On September 5, 2013, Plaintiff filed a grievance with five
requests:
(1) to receive a second mattress, (2) to receive
different pain medication and additional medication for posttraumatic stress disorder and ADHD, (3) to receive an elbow
brace, (4) to undergo an x-ray or bone scan on his lower back,
and (5) to see a dentist.
Also on September 5, 2013, Plaintiff sent a kite to the
medical unit repeating the same requests that Plaintiff raised in
his grievance and requesting to see PMHNP Newman.
R.N. Stutzman
responded by informing Plaintiff that the issued he raised had
already been addressed.
On September 7, 2013, R.N. Stutzman denied Plaintiff’s
grievance because Plaintiff’s medical and mental-health needs as
determined by his medical practitioners were being met.
That day
Plaintiff appealed the denial of his grievance and made the
following requests:
(1) to stop the medical unit from
“slandering” him, (2) to see a dentist, (3) to receive a second
mattress; (4) to undergo a bone scan on his right wrist and an
6 - OPINION AND ORDER
x-ray on his lower back; (5) to receive a prescription for
Adderall or Ritalin for ADHD; and (6) to receive an elbow brace.
Also on September 10, 2013, Capt. Baggett responded to
Plaintiff’s appeal and agreed with R.N. Stutzman that Plaintiff’s
medical and mental-health needs were being met.
Capt. Baggett
also warned Plaintiff:
I understand that you continue to use the kite system
to demand the same items that are being dealt with
through the grievance system. If you continue to abuse
the kite system you may be restricted in their use.
In other words you must wait for the grievance system
for your answer.
Of course if you should have a medical emergency please
contact staff and it will be addressed.
Pl.’s Resp., Ex. 17.
That same day Plaintiff sent a kite to his supervisor
seeking to file another grievance on the ground that Plaintiff’s
treatment for ADHD was insufficient because of PMHNP Newman’s
failure to prescribe Ritalin.
Plaintiff stated PMHNP Newman
declined to prescribe Ritalin because other inmates had misused
the medication.
Sgt. Schrader responded to the kite by informing
Plaintiff that the kite did not set out an issue on which
Plaintiff could file a grievance because PMHNP Newman was not an
employee of the Sheriff’s Office.
Sgt. Schrader noted,
however, that Plaintiff had an appeal pending on a similar
topic and inquired whether Plaintiff would like to appeal
further.
7 - OPINION AND ORDER
On September 11, 2013, Plaintiff sent a kite to
Capt. Baggett asking him to personally come to Plaintiff's cell
to observe his injuries and again raising the issue of
PMHNP Newman’s failure to prescribe Ritalin and Adderall.
Capt. Baggett responded:
“I could not have made it more clear in
my response to the grievance appeal.
restriction is attached.”
As promised your kite [sic]
Pl.’s Resp. Ex. 18.
Capt. Baggett
attached a Misconduct Report in which he found Plaintiff had
committed a “minor violation” by engaging in behavior that
disrupted routine facility operations and restricted Plaintiff to
two kites per week until September 27, 2013.
Baggett Decl.,
Ex. 1.
Also on September 11, 2013, Plaintiff appealed the denial of
his grievance to the Linn County Sheriff.
On October 3, 2013,
Sheriff Mueller concurred with the medical and corrections staff
and denied Plaintiff’s grievance.
PROCEDURAL BACKGROUND
On December 9, 2013, Plaintiff filed a Complaint (#2)
against Defendants in which he asserted two claims pursuant to
28 U.S.C. § 1983 against Defendants alleging they violated
Plaintiff’s right to be free from cruel and unusual punishment by
(1) denying Plaintiff medical care for a broken wrist and (2)
denying Plaintiff medication to treat his ADHD.
8 - OPINION AND ORDER
By Order (#8)
issued January 10, 2014, the Court dismissed Plaintiff’s claims
for failure to state a claim with leave to amend.
On February 3, 2014, Plaintiff filed an Amended Complaint
(#12) in which he again brings two claims pursuant to 28 U.S.C.
§ 1983.
In Claim One Plaintiff asserts Defendants were
deliberately indifferent to Plaintiff’s serious mental-health
conditions during his confinement in the Linn County Jail from
August 20, 2013, to December 5, 2013, in violation of the Eighth
and Fourteenth Amendments of the United States Constitution.
In
Claim Two Plaintiff alleges Defendants were deliberately
indifferent to his serious back and right-wrist injuries during
his confinement in the Linn County Jail from August 20, 2013, to
December 5, 2013, in violation of the Eighth and Fourteenth
Amendments.
On May 19, 2014, Defendants moved for summary judgment on
both of Plaintiff’s claims asserting Defendants were not
deliberately indifferent to Plaintiff’s medical conditions and,
alternatively, that Defendants were entitled to qualified
immunity.
STANDARDS
Summary judgment is appropriate when there is not a “genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
9 - OPINION AND ORDER
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .
Id.
"This burden is not a light one
The non-moving party must do more than show there is
some 'metaphysical doubt' as to the material facts at issue."
In
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
Sluimer
"Summary
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts
Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
A “mere disagreement or bald assertion” that a genuine
10- OPINION AND ORDER
dispute as to a material fact exists “will not preclude the grant
of summary judgment.”
Deering v. Lassen Cmty. Coll. Dist., No.
2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20,
2011)(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).
2010).
See also Moore v. Potter, 701 F. Supp. 2d 1171 (D. Or.
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citing Blue Ridge
Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
Id.
A pro se plaintiff's complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
construe pro se filings liberally.
Thus, the court must
“A district court should not
dismiss a pro se complaint without leave to amend unless it is
‘absolutely clear that the deficiencies in the complaint could
not be cured by amendment.’”
(9th Cir. 2012).
11- OPINION AND ORDER
Akhtar v. Mesa, 698 F.3d 1202, 1212
DISCUSSION
As noted, Plaintiff raised two claims under 42 U.S.C.
§ 1983.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
To establish a claim under § 1983 against an individual
defendant, a plaintiff must plead facts sufficient to show
personal participation in the alleged constitutional deprivation
by each defendant.
See Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009)(“Because vicarious liability is inapplicable to . . .
§ 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual acts,
has violated the constitution.”).
See also Zellmer v.
Constantine, 520 F. App’x 564, 565 (9th Cir. 2013)(“The district
court properly dismissed defendant Constantine because Zellmer
failed to show that Constantine had any personal involvement in
the alleged violations.”); Arizmendi v. City of San Jose, No.
5:08-CV-05163 EJD, 2012 WL 5471152, at *4 (N.D. Cal. Nov. 9,
2012)(“A plaintiff must establish ‘integral participation’ of the
individual officer in the alleged constitutional violation.
12- OPINION AND ORDER
Summary judgment, therefore, is proper when there is no question
of fact or dispute that specific individual defendants did not
participate personally in an allegedly unconstitutional
search.”)(citation omitted).
"In order to survive a motion for summary judgment on a
§ 1983 claim, the plaintiff must establish a genuine issue of
material fact that the defendant (1) acted under the color of
state law, and (2) deprived him of a constitutional right."
Ewing v. City of Stockton, 588 F.3d 1218, 1223 (9th Cir.
2009)(citing Levine v. City of Alameda, 525 F.3d 903, 905 (9th
Cir. 2008)).
State officials or municipalities are liable for
deprivations of life, liberty, or property that rise to the level
of a "constitutional tort" under the Due Process Clause of the
Fourteenth Amendment.
Johnson v. City of Seattle, 474 F.3d 634,
638 (9th Cir. 2007).
A.
Plaintiff’s Deliberate-Indifference Claims
As noted, in his First Amended Complaint Plaintiff asserts
two claims against Defendants for deliberate indifference to
Plaintiff’s serious medical needs in violation of the Eighth and
Fourteenth Amendments to the United States Constitution.
1.
Standards
Deliberate indifference to serious medical needs is a
cognizable claim for violation of the Eighth Amendment
proscription against cruel and unusual punishment.
13- OPINION AND ORDER
Estelle v.
Gamble, 429 U.S. 97, 104 (1976).
See also Colwell v. Bannister,
763 F.3d 1060, 1066 (9th Cir. 2014)(same).
“Claims by pretrial
detainees[, however,] are analyzed under the Fourteenth Amendment
Due Process Clause, rather than the Eighth Amendment.”
Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
Wolfe, 478 F. App’x 354, 356 (9th Cir. 2012).
Frost v.
See also Young v.
“[P]retrial
detainees’ rights under the Fourteenth Amendment are comparable
to prisoners’ rights under the Eighth Amendment,” and, therefore,
the substantive standards are the same.
Frost, 152 F.3d at 1128.
To sustain [a] deliberate indifference claim, [a
plaintiff must] meet the following test: “First,
the plaintiff must show a serious medical need by
demonstrating that failure to treat a prisoner's
condition could result in further significant
injury or the unnecessary and wanton infliction of
pain. Second, the plaintiff must show the
defendant's response to the need was deliberately
indifferent.”
Peralta v. Dillard, 704 F.3d 1124, 1127 (9th Cir. 2013)(quoting
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
To satisfy
the second prong (i.e., that defendant's response to the
plaintiff’s needs was deliberately indifferent), a plaintiff must
show there was “‘(a) a purposeful act or failure to respond to a
prisoner's pain or possible medical need and (b) harm [was]
caused by the indifference.’”
Jett, 439 F.3d at 1096).
Peralta, 704 F.3d at 1127 (quoting
Deliberate indifference may be
established by showing that prison officials have denied,
delayed, or intentionally interfered with medical treatment or it
14- OPINION AND ORDER
may be demonstrated by the way prison officials have provided
medical care.
Jett, 439 F.3d at 1096.
“Mere negligence in diagnosing or treating a medical
condition, without more, does not violate a prisoner's Eighth
Amendment rights."
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th
Cir. 2004)(citation omitted).
See also Wilhelm v. Rotman, 680
F.3d 1113, 1122 (9th Cir. 2012)(“Medical malpractice does not
become a constitutional violation merely because the victim is a
prisoner.”).
In addition, “a plaintiff's showing of nothing more
than a difference of medical opinion as to the need to pursue one
course of treatment over another [is] insufficient, as a matter
of law, to establish deliberate indifference.”
at 1122 (quotation omitted).
Wilhelm, 680 F.3d
“Rather, to prevail on a claim
involving choices between alternative courses of treatment, a
prisoner must show that the chosen course of treatment ‘was
medically unacceptable under the circumstances,’ and was chosen
‘in conscious disregard of an excessive risk to [the prisoner’s]
health.’”
Toguchi, 391 F.3d at 1058 (quoting Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
2.
Analysis
Although Plaintiff phrases his deliberate-indifference
claims in terms of the Eighth Amendment, those claims actually
arise from the Fourteenth Amendment.
1128.
See Frost, 152 F.3d at
Because the same substantive standard applies in this
15- OPINION AND ORDER
context under the Fourteenth or the Eighth Amendment, the Court
applies the Fourteenth Amendment “deliberate-indifference”
standard to both Plaintiff’s Amended Complaint and Defendant’s
Motion for Summary Judgment.
See id.
Defendants assert they are entitled to summary judgment
on Plaintiff’s deliberate-indifference claims because Plaintiff
fails to demonstrate that he suffered from a serious medical need
and, in any event, there is not any evidence that Plaintiff’s
treatment was medically unacceptable.
In his Response Brief
Plaintiff appears to abandon his deliberate-indifference claims
in favor of a retaliation claim under the First Amendment.2
See
Jenkins v. Cnty. Of Riverside, 398 F.3d 1093, 1095 (9th Cir.
2005)(noting a plaintiff abandoned claims by not defending them
in opposition to a motion for summary judgment).
The undisputed factual record indicates Linn County
Jail officials provided Plaintiff with his prescribed medical
treatment.
Although Plaintiff may have desired different medical
treatment, there is not any evidence in the record from which a
rational jury could conclude such prescribed treatment was
“‘medically unacceptable under the circumstances’” or “‘in
conscious disregard of an excessive risk’” to Plaintiff’s health.
See Toguchi, 391 F.3d at 1058 (quoting Jackson, 90 F.3d at 332).
2
Although this is a sufficient basis on which to award
summary judgment, the Court will address Plaintiff’s claims on
the merits.
16- OPINION AND ORDER
At best Plaintiff has shown a “difference of medical opinion as
to the need to pursue one course of treatment over another,” but
that is insufficient to maintain a claim of deliberate
indifference.
Wilhelm, 680 F.3d at 1122.
Accordingly, the Court concludes on this record that
Defendants are entitled to summary judgment on Plaintiff’s
deliberate-indifference claims.
B.
Leave to Amend Complaint
As noted, in his Response Brief Plaintiff re-characterizes
his deliberate-indifference claims as retaliation claims under
the First Amendment.
“Although courts must construe pro se
complaints liberally . . . , courts should not undertake to infer
in one cause of action when a complaint clearly states a claim
under a different cause of action.”
Bogovich v. Sandoval, 189
F.3d 999, 1001 (9th Cir. 1999)(citation omitted).
See also
O’Guinn v. Lovelock Corr. Ctr., 503 F.3d 1056, 1060 (9th Cir.
2007).
Plaintiff’s Amended Complaint Plaintiff clearly states two
deliberate-indifference claims with considerable precision.
Plaintiff cites both the Eighth and Fourteenth Amendments in both
claims and used variations of the phrase “deliberate
indifference” four times.
Thus, although nothing in his Amended
Complaint indicates Plaintiff intended to state a retaliation
claim under the First Amendment, and the Court has concluded
17- OPINION AND ORDER
Defendants are entitled to summary judgment on Plaintiff’s
deliberate-indifference claims, the Court concludes it should
also consider whether Plaintiff should be permitted leave to
amend again to plead specifically a First Amendment Claim.
See
Akhtar, 698 F.3d at 1212 (“A district court should not dismiss a
pro se complaint without leave to amend unless it is ‘absolutely
clear that the deficiencies in the complaint could not be cured
by amendment.’”).
1.
Standard
The Ninth Circuit has held retaliation against a
prisoner for the exercise of a constitutionally-protected right
is a constitutional violation arising under the First Amendment.
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
See
also Orebaugh v. Caspari, 910 F.2d 526, 528 (8th Cir.
1990)("proper acts are actionable under § 1983 if done in
retaliation for filing a grievance pursuant to established prison
procedures").
Within the prison context, a viable claim of First
Amendment retaliation entails five basic elements:
(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) the action did
not reasonably advance a legitimate correctional
goal.
Rhodes, 408 F.3d at 567-68 (citing Resnick v. Hayes, 213 F.3d
443, 449 (9th Cir. 2000)).
18- OPINION AND ORDER
See also Brodheim v. Cry, 584 F.3d
1262, 1269 (9th Cir. 2009).
“To prevail on a retaliation claim, a plaintiff must
show that his protected conduct was ‘the substantial or
motivating factor behind the defendant’s conduct.’”
Brodheim,
584 F.3d at 1271 (quoting Soranno’s Gasco, Inc. v. Morgan, 874
F.2d 1310, 1314 (9th Cir. 1989)).
Thus, to survive summary
judgment as to a retaliation claim, Plaintiff must “‘put forth
evidence of retaliatory motive, that, taken in the light most
favorable to [the plaintiff], presents a genuine [dispute of
material] fact as to [the defendant’s] intent.’”
Id. (quoting
Bruce v. Ylst, 351 F.3d 1282, 1289 (9th cir. 2003)).
See also
Bryant v. Ochoa, 506 F. App’x 635, 636 (9th Cir. 2013).
2.
Analysis
“[P]risoners have a First Amendment right to file
prison grievances,” and “[r]etaliation against prisoners for
their exercise of this right is itself a constitutional
violation, and prohibited as a matter of ‘clearly established
law.’”
Brodheim, 584 F.3d at 1269.
Plaintiff asserts the “crux of Plaintiff’s complaint is
that Defendants retaliated against him for seeking to address his
medical problems through the Linn County Jail’s grievance
system.”
Pl.’s Resp. (#56) at 4.
As Defendants note, however,
there is not any evidence of retaliation against Plaintiff for
filing a grievance.
19- OPINION AND ORDER
Plaintiff states in his Declaration that he “believed
that Baggett imposed a kite restriction in retaliation for my
efforts to utilize the grievance system and because I was
persistent in seeking adequate medical care.”3
Pruett Decl.
(#57) at ¶ 41.
To the contrary, however, the record is clear that
Defendants imposed the kite restriction because Plaintiff
continued to file repetitive kites concerning the same issues as
in his pending grievance.
In fact, when Capt. Baggett rejected Plaintiff’s first
grievance appeal on September 10, 2013, he warned Plaintiff that
he was not allowed to submit kites concerning the same issues
that were in his pending grievance and that if he continued to do
so, he would be restricted in his use of the kite system.
When
Plaintiff submitted another kite the next day concerning the same
issues that were in his grievance, Capt. Baggett restricted
Plaintiff’s use of kites for three weeks.
Thus, the record
indicates Defendants took action in direct response to Plaintiff
repetitively filing kites while his grievance(s) concerning the
3
Plaintiff also asserts Sheriff Mueller’s response to his
grievance appeal was untimely because Sheriff Mueller was
supposed to respond within fifteen days “exclusive of weekends
and holidays.” Sheriff Mueller, however, responded to
Plaintiff’s September 11, 2013, grievance appeal on October 2,
2013, which was the fifteenth day (exclusive of holidays and
weekends) after Plaintiff submitted his appeal. Accordingly,
Sheriff Mueller’s response was timely.
20- OPINION AND ORDER
same issues were pending.
Filing a repetitive kite with a
pending grievance is not protected conduct, and even if it was,
Defendants’ action in restricting Plaintiff’s kite privileges
would serve the reasonable correctional goal of considering
prisoner grievances in a streamlined manner.
On this record the Court concludes it is “absolutely
clear that the deficiencies” in Plaintiff’s newly-asserted First
Amendment retaliation claim “could not be cured by amendment” of
Plaintiff’s Complaint.
See Akhtar, 698 F.3d at 1212.
Thus, the
Court denies Plaintiff leave to file a Second Amended Complaint
and grants Defendants’ Motion for Summary Judgment.
CONCLUSION
For these reasons, the Court GRANTS Defendants’ Motion (#33)
for Summary Judgment, DISMISSES Plaintiff’s Amended Complaint
(#12) with prejudice, and DENIES Plaintiff leave to file a Second
Amended Complaint.
IT IS SO ORDERED.
DATED this 22nd day of December, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
21- OPINION AND ORDER
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