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HINES v. GOMEZ

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


May 26, 1994

GARY DALE HINES, Plaintiff,
v.
JAMES GOMEZ, et al., Defendants.

The opinion of the court was delivered by: EUGENE F. LYNCH

ORDER DENYING SUMMARY JUDGMENT IN PART AND GRANTING IN PART

 I. Introduction

 Plaintiff, an inmate on death row at San Quentin State Prison, filed this action pursuant to 42 U.S.C. § 1983 alleging numerous civil rights violations. The Court beard defendants' motion for summary judgment on May 6, 1994. The Court granted defendants' motion for summary judgment as to plaintiff's claim for injunctive relief regarding the opening of his legal mail and as to plaintiff's claim of excessive force against defendant Campbell. *fn1"

 The Court denied defendants' motion on the remaining claims: (1) the alleged breaking of plaintiff's television by defendants Jones and Gates in retaliation for filing inmate appeals ("602s"); (2) the alleged retaliatory issuance of a disciplinary rules violation by defendant Shafer several hours after plaintiff filed a 602 concerning the broken television; and (3) the alleged retaliatory rules violation report issued by defendant Pearson which resulted in plaintiff permanently losing his television. *fn2" The Court issues this Order to clarify for the parties the basis of its denial of summary judgment concerning these retaliation claims.

 II. Factual Background

 Plaintiff's claims of retaliation are grounded in a series of events which allegedly occurred in December of 1991. Plaintiff claims that his television was returned to him in early December by defendant Campbell. He claims that the television was not working properly-- it was buzzing, the casing was loose and it blew out the circuit in his tier. He alleges that defendants Gates and Campbell broke his television in retaliation for administrative appeals he had filed. The evidence linking Gates to the alleged breaking of the television is that plaintiff had seen Gates drinking coffee next to the television and when the television was later set down on plaintiff's bed, coffee stains appeared on the sheets. Plaintiff also stated at his deposition that Gates laughed about the broken television. Plaintiff's evidence linking defendant Campbell is that Campbell returned the television to him, although he is not the property officer, and that the plaintiff did not sign for it, as required under San Quentin regulations.

 The second allegedly retaliatory incident arose out of plaintiff's filing of an inmate grievance concerning the broken television on December 6 at approximately 9 a.m.. Three hours after handing the grievance to defendant Campbell, defendant Shafer inspected the television in plaintiff's cell, issued a rules violation report to plaintiff for tampering with the seals of the television, and removed the television. Plaintiff claims he did not tamper with the seals and that defendant Shafer knew that the report was false.

 Defendant Szmaciarz conducted a disciplinary hearing on December 22, 1991, at which Shafer testified that the television was functioning when it was returned to plaintiff. Plaintiff was found guilty of tampering with the seals and lost his television for 90 days; he also allegedly agreed that if an additional rules violation was issued during that time period the television would be shipped out of San Quentin. Plaintiff claims that his requests for witnesses to testify at this hearing were denied in retaliation for his filing the inmate grievance, and that he did not agree to permanently losing his television if a rules violation was issued during the 90 day period.

 Finally, on January 19, 1992, defendant Pearson issued a rules violation report which stated that while escorting plaintiff to his cell plaintiff attempted to stop and retrieve an item from another inmate. An investigative employee was not assigned. On January 23, defendant Szmaciarz conducted a hearing and plaintiff was found guilty. His television was sent home. Plaintiff claims that the disciplinary report was false. He was unaware a violation had been issued until the hearing and he was improperly denied witnesses at the hearing.

 III. Discussion

 The defendants' motion for summary judgment relied primarily on one legal theory: that plaintiff's claim of retaliation must fail because the filing of inmate appeals is not constitutionally protected activity and therefore any retaliation for plaintiff's filings is not actionable under 42 U.S.C. § 1983. *fn3" The defendants argue that because prisoners have no constitutional right to an inmate grievance system, plaintiff has failed to allege any constitutionally protected conduct which could be the basis of his claim of retaliation. The defendants further contend that the filing of an inmate appeal does not implicate plaintiff's first amendment right to petition the government for redress of grievances. For the following reasons, the Court disagrees.

 To establish a claim of retaliation under 42 U.S.C. § 1983, plaintiff must first establish that he engaged in constitutionally protected activity and second that his conduct was a substantial or motivating factor behind the supposedly retaliatory acts. Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); see also, Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). If plaintiff meets this burden, the defendants are entitled to show that they would have taken the same actions even in the absence of the protected conduct. Mt. Healthy, 429 U.S. at 287; Soranno's Gasco, 874 F.2d at 1314.

 Thus, the issue before the Court is whether the plaintiff's filing of an inmate appeal is constitutionally protected conduct. The Court does not dispute defendants' contention that prisoners are not constitutionally entitled to an inmate appeals system, or to this particular appeals system. Nor does the Court find it necessary to address whether the state has created a protected liberty interest in the inmate appeals system at issue here. However, the Court finds that filing an inmate appeal falls within the plaintiff's first amendment right to petition the government for redress of grievances. *fn4"

 First, several circuits have held that a prisoner's first amendment right to petition the government for redress of grievances encompasses the filing of inmate administrative appeals. *fn5" For example, in Franco v. Kelly, the Second Circuit held that an inmate had stated a claim under 42 U.S.C. § 1983 by alleging that false disciplinary charges were filed against him in retaliation for his cooperation with an administrative investigation by the state Inspector General. Franco v. Kelly, 854 F.2d 584, 585-86 (2d Cir. 1988). The court held that "although those allegations do not directly implicate Franco's right of access to the courts or similar judicial forums, we believe that his complaint does implicate his broader right to petition the government for redress of grievances, as guaranteed by the First and Fourteenth Amendments." Id. at 589.

 The Second Circuit went on to explain, "the right of petition applies with equal force to a person's right to seek redress from all branches of government . . . In the prison context, we have held that inmates must be 'permitted free and uninhibited access . . . to both administrative and judicial forums for the purpose of seeking redress of grievances against state officers.'" Id. (emphasis original). The court held that the intentional obstruction of the right to seek redress of grievances "'is precisely the sort of oppression that . . . section 1983 [is] intended to remedy.'" Id.

 Moreover, the Ninth Circuit has relied on this line of authority in other administrative contexts. In Soranno's Gas Co., plaintiffs alleged that Gasco's petroleum bulk plant permits had been suspended by the Air Pollution Control District ("APCD") in retaliation for their public criticism of the APCD and for filing suit against the defendants. The Ninth Circuit held that the plaintiffs' institution of public hearings before the County Board of Supervisors and the initiation of litigation challenging certain regulations, was protected under the first amendment both as political expression and under the right to petition the government. Soranno's Gasco, 874 F.2d at 1314. *fn6"

 The court then held that plaintiffs had stated a claim of retaliation under § 1983 in alleging that the suspension of their permits was in response to both the public criticism at the hearings and the litigation against the defendants. The court explained that "the right of access to the courts is subsumed under the first amendment right to petition the government for redress of grievances . . . Deliberate retaliation by state actors against an individual's exercise of this right is actionable under section 1983." Id. (citing Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988)). *fn7"

 Finally, the Court is not persuaded by defendants' arguments in favor of rejecting Franco v. Kelly and Sprouse v. Babcock. The defendants argue that including an inmate appeal within the right to petition trivializes the Constitution, penalizes the state for creating the inmate appeal system, and constitutionalizes every interaction between staff and inmates. In addition, the defendants argue that because the state regulations provide that "no reprisal shall be taken against an inmate or parolee for filing an appeal," the issue of retaliation should properly be left to state courts to remedy. See California Code of Regulations, Title 15, § 3084.1(d).

 The Court is not persuaded that these concerns outweigh the authority previously discussed. First, the Court notes that had plaintiff written the governor to complain about prison conditions, that conduct would be protected under the right to petition. The Court can see no reason to hold that the right to petition is no longer implicated simply because the plaintiff utilized the procedure established by the state to file one's grievances against the prison (a part of the executive branch). In the Court's view, to hold otherwise would trivialize the plaintiff's right to petition the government.

 Second, the Court does not believe that following Franco v. Kelly will result in constitutionalizing every interaction between inmates and staff. The inmate still has the high burden of showing that filing the inmate appeal was a substantial motivating factor behind the retaliatory actions taken by defendants. *fn8" Plaintiff has met that burden here by his undisputed testimony concerning the broken television and his denial of committing the actions which were the basis of the disciplinary reports, coupled with the timing of the filing of the disciplinary reports. Moreover, defendants can show by a preponderance of the evidence that they would have taken the same action even in the absence of the protected conduct. See Soranno's Gasco, 874 F.2d at 1315. *fn9" Finally, the availability of the state cause of action for taking reprisals for filing inmate grievances does not affect whether the filing of the grievance is within the plaintiff's right to petition the government for redress of grievances.

 IV. Conclusion

 The Court therefore holds that plaintiff can state a claim for retaliation based upon the allegation that certain retaliatory actions were taken in response to his filing inmate appeals. The cases discussed above indicate that plaintiff's activity of filing an inmate appeal is subsumed under the right to petition the government for redress. Courts have interpreted the right to petition broadly to include the right to petition all branches of government-- executive, judicial and legislative. Moreover, several circuits have specifically held that the act of using an inmate grievance process is protected under the right to petition. Therefore, any action taken in retaliation for the plaintiff's filing of inmate appeals is actionable under 42 U.S.C. § 1983. Defendants' motion for summary judgment is DENIED.

 IT IS SO ORDERED.

 DATED: May 26, 1994.

 EUGENE F. LYNCH

 United States District Judge


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