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HINES v. GOMEZ

May 26, 1994

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



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

 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

 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.

 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, ...


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