FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The gist of his complaint is that he was subjected to retaliation by the defendants for his having refused to become a "snitch" or informant. The defendants have moved for summary judgment and for the reasons explained below, the court finds that the motion must be granted.
This action proceeds on the amended complaint filed November 9, 2007. In that complaint, plaintiff makes five claims. The first four claims allege that Defendant Halverson retaliated against plaintiff for refusing to be an informant. Plaintiff alleges this retaliation took the following forms: (1) that defendant D. Halverson changed plaintiff's custody level from Medium A to Close B, thus causing plaintiff to lose his job assisting a cook; (2) that defendant Halverson confiscated plaintiff's card necessary to obtain a liquid diet; (3) that defendant Halverson caused defendants Lesane and Petrey to deny plaintiff access to the restroom for over two hours; (4) that defendant Halverson caused Lesane to subject plaintiff to a random search of his person; and, (5) that defendant Halverson caused defendants Lesane and Lee to confiscate the card plaintiff needed to obtain a medically necessary special diet. Plaintiff also appears to allege retaliatory acts by Lesane, Lee and Petrey, independent of the retaliation that plaintiff attributes to defendant Halverson. Interwoven with his allegations of retaliation plaintiff also claims that defendants Lesane and Lee subjected plaintiff to cruel and unusual punishment when they handcuffed him and placed him in a holding cell for four hours.
Plaintiff is confined at California State Prison at Corcoran but at the time of the events alleged in this action he was housed at the California Medical Facility (hereafter "CMF"). Plaintiff's Second Amended Complaint*fn1 (hereafter "Am. Compl."), at 3-4. At the time of alleged the events all of the defendants were guards at CMF. Am. Compl., at 4-5. In 2005, defendant Halverson was a sergeant assigned to the kitchen. Def.'s Mot. for Summ. J., Ex. 1, Declaration of Halverson (hereafter "Halverson Decl."), ¶ 2. In 2006, he became a Correctional Counselor. Halverson Decl., ¶ 3. As a correctional counselor, Defendant Halverson served on the Classification Committee that plaintiff appeared before for an annual review on May 11, 2006. Id. Neither defendants Lesane nor Lee elaborate on their positions at the time of the events giving rise to this action. They only state, "I am employed by the California Department of Corrections and Rehabilitation." Lesane Decl., ¶ 1; Lee Decl., ¶ 1.
Plaintiff's allegations of retaliation assert that the defendants failed to comply with the proper procedures for how prison officials within the California Department of Corrections and Rehabilitations (hereafter "CDCR") are to determine prisoners' security classifications. Under the Department's inmate security classification system each prisoner is assigned a "custody designation." See Cal. Code Regs. tit 15, §3377.1. To do this, Unit Classification Committees (hereafter "UCC") meet with each prisoner upon entry in a particular prison and annually thereafter to determine, amongst other things, a prisoner's custody designation. See Cal. Code Regs. tit. 15, § 3376(d)(1), & (d)(2)(A). Quite obviously, these designations are important to prison officials for security and other penological interests. There is a range of custody designations and various factors are used to determine which designation is appropriate for a particular prisoner, including the prisoner's sentence, escape history and whether the prisoner has be found guilty of serious charges in a Rules Violation Report (hereafter "RVR"). Cal. Code Regs. tit. 15, § 3377.2(a)(1). The range of designations include Maximum Custody, Close Custody A or B, Medium Custody A or B, and Minimum Custody A or B. Cal. Code Regs. tit. 15, § 3377.1(a). The court here is concerned with Close Custody A, Close Custody B and Medium Custody A. In particular, plaintiff at various times was classified in the categories of Close Custody A and B.
A prisoner who satisfies more than one of the criteria for Close A must receive that designation "for the longest required amount of time before becoming eligible for Close B Custody consideration." Cal. Code Regs. tit. 15, §§ 3377/2(a)(1), 3377.2(b). Thus, a prisoner serving a sentence of anywhere from 15 to 50 years who presents no "management concerns" must be designated Close A for the first year of his commitment to the CDCR. Cal. Code Regs. tit. 15, § 3377.2(b)(3)(D). Following one year of Close A custody, a prisoner serving a term anywhere from 15 to 50 years who presents no "management concerns" and who has no escape history, must serve the next four years with a Close B designation. Cal. Code Regs. tit 15, § 3377.2(c)(3)(D). Prisoners designated as Close A "are not permitted beyond the work change area."*fn2 Cal. Code Regs. tit. 15, § 3377.1(a)(2)(B). Prisoners designated as Close B, however, may participate in work programs that are outside the "work change area," and may work until later in the evening than may Close A prisoners. Cal. Code Regs. tit. 15, § 3377.1(a)(2)(B), (a)(4)(B).
The regulations do not provide information on the criteria for designating a prisoner as Medium Custody A. However, it is clear that such a designation allows for much more freedom of movement than do Close Custody A and B. A prisoner designated Medium Custody A may be housed in a dormitory within the facility's "security perimeter,"*fn3 and must be assigned to activities within that perimeter. Cal. Code Regs. tit. 15, § 3371.1(a)(6).
The application of this classification system to plaintiff begins with his initial commitment. On May 1, 2003, he was sentenced to a term of 19 years and committed to the custody of the CDCR. Am. Compl., Ex. C, at 8, 11. Upon his arrival at CMF in July 2003, prison officials mistakenly designated plaintiff as Medium A. It is undisputed that he should have been designated as Close A. See Am. Compl., Ex. A, at 7, 10. The result of this error is that plaintiff had more freedom and was able to work in areas that he otherwise would have been denied. He was at the Medium A level of custody in May 2005, when he began working as a cook in one of the CMF kitchens. Notwithstanding the mistaken classification he apparently performed satisfactorily in the kitchen job. According to a note written by his supervisor in 2006, plaintiff was a good worker in that he "has contributed to the daily success of the Food Service Department." See Id.; Am. Compl., at 6, & Ex. E.
Plaintiff alleges that while he worked in the kitchen as a cook, defendant Halverson approached him and requested that he provide information about alleged gang members who also worked in the kitchen. Am. Compl., at 6. Plaintiff declined, explaining that prisoner informants risk violence at the hands of other prisoners. Id. According to plaintiff, defendant Halverson responded to this refusal with a promise that plaintiff would regret his decision. Am. Compl., at 6-7. Plaintiff further claims that on May 26, 2005, after he refused to be an informant but while he still worked in the kitchen, defendant Halverson confiscated the card plaintiff needed to obtain a liquid diet. Am. Compl., at 7 (citing to Ex. D); Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. (hereafter, "Pl.'s Mem."), at 1. On June 14, 2005, the dietician returned it to him after receiving a grievance from plaintiff. Pl.'s Mem, at 1. Plaintiff claims that once he received the card, defendant Halverson told him that "he [Halverson] will get plaintiff." Am. Compl., at 7. Defendant Halverson denies that statement and denies that he asked plaintiff to become an informant.*fn4 Halverson Decl., ¶ 5.
On May 11, 2005, plaintiff appeared before a UCC for an annual review of his security classification, work and housing assignment, mental health participation and custody level. Am. Compl., Ex. A, at 7. At the time, plaintiff was still designated as Medium A for custody purposes. The Committee reviewed the factors for determining plaintiff's custody level and declined to change it, noting "MED A custody remains appropriate." Id. One year later, on May 11, 2006, plaintiff appeared before another UCC for his annual review. Id., Ex. A, at 8. The Committee again reviewed the factors relevant to plaintiff's custody level. Id. At this review, the Committee noted that:
Subject was initially assigned to MED-A custody due to an administrative error, therefore today's UCC elects to increase Subject's custody from MED-A to CLOB noting Subject will be eligible for MED-A custody effective 8-4-08. In addition, UCC notes that the Subject is currently assigned to work position # MKWF1059, which work hours conflict with Subjects CLO-B custody, therefore committee elects to a non-adversely unassign Subject from position # MKWF1059 and place on the food handlers waiting list.
Am. Compl., Ex. A, at 8. The captain overseeing the review, Captain St. Germain, ordered the change. Halverson Decl., ¶ 3. Defendant Halverson was present, but he merely served as the committee recorder. Am. Compl., Ex. A, at 8; Halverson Decl., ¶ 4. Defendant Halverson asserts that he had no influence over the proceedings, including the decision to change plaintiff's custody designation. Halverson Decl., ¶ 4. However, as a result of the change in the custody designation, plaintiff was removed from his job as a cook in the kitchen and placed in a job with more restrictions on his movement and no pay. Pl.'s Mem., at 3.
Plaintiff also alleges that at some unspecified time, defendant Halverson made telephone calls to the kitchen and encouraged kitchen staff to take adverse action against plaintiff for his refusing to become an informant. Am. Compl., at 9. He alleges that thereafter, defendant Lesane prevented him from using the bathroom for nearly two and one-half hours. Id. There apparently was some disagreement about whether plaintiff should have to use a kitchen restroom rather than the one in his cell. Plaintiff states that he was attempting to leave the kitchen when defendant Lesane threatened plaintiff that if he did not move away from the gate, he would handcuff plaintiff and put him in a holding cell. Id. Plaintiff alleges that given his age, 50, he suffered attempting to control his bladder for the time he was not allowed to use the restroom. Id. According to defendant Lesane, plaintiff told Lesane that he wanted to use the restroom in his cell. Lesane Decl., ¶ 2. However, as defendant Lesane explains it, prisoners have access to a restroom in the kitchen area, and Lesane told plaintiff to use that one but plaintiff refused to use it. Lesane Decl., ¶ 3. Plaintiff does not deny knowing that there was a kitchen restroom available or explain why he would not use it. He does, however, deny complaining that it was unsanitary and lacked privacy. Pl.'s Mem., at 4. This refusal made defendant Lesane skeptical about the reasons for plaintiff's desire to leave the kitchen area. Lesane Decl., ¶ 4. Defendant Lesane did not believe that plaintiff intended to use the facilities in his cell. Id. Therefore, defendant Lesane ordered Petrey, who controlled the gate, not to open it. Lesane Decl., ¶ 4. Pl.'s Mem., at 4. Instead, defendant Lesane handcuffed plaintiff and placed him in a holding cell near the kitchen area because plaintiff persisted with his insistence that he be permitted to use the restroom in his cell.*fn5 Am. Compl., at 9; Lesane Decl., ¶¶ 1, 2, 5.*fn6
At around 6:30 a.m. on February 23, 2007, plaintiff was released from the holding cell for breakfast. Am. Compl., at 10. He had specific authorization for a liquid diet because he has no molars. Id. In order to obtain his special meals, however, plaintiff had to present a card proving his entitlement to a special diet. Id. He alleges that as he was waiting to receive his meal, defendants Lesane and Lee "accosted" him, handcuffed him behind his back, placed him in a holding cell for four hours and confiscated his diet card. Id. He claims that he was in handcuffs the entire time he was in the cell. Id. He further alleges that the confiscation was "per orders of Def Haverson [sic]." Am. Compl., at 11. Plaintiff claims that as a result of remaining handcuffed in the holding cell for four hours he suffered from shoulder pain.*fn7 Am. Compl., at 10.
The parties agree that defendants Lesane and Lee confiscated plaintiff's food card during the February 23 incident. Am. Compl., at 11; Lesane Decl., ¶ 6; Lee Decl., ¶ 2. Plaintiff asserts that as a result, he did not eat for five days. Am. Compl., at 11.
Although defendants Lesane and Lee's accounts of the events do not differ from plaintiff's in material ways, they provide additional context and detail. Defendant Lesane asserts that when plaintiff was detained, he should have been in an area designated for those who receive special diets. Lesane Decl., ¶ 6. Lesane says that he found plaintiff "out of bounds"*fn8 attempting to obtain food that was not part of his liquid diet, i.e., chicken. Id. After confiscating plaintiff's card, defendants Lesane and Lee handcuffed plaintiff, and placed him into a holding cell. Lesane Decl., ¶ 6, 7; Lee Decl., ¶¶ 2, 3. Lesane and Lee assert that they did not know handcuffing a prisoner in a routine manner could result in an injury to the rotator cuff. Lesane Decl., ¶ 8; Lee Decl., ¶ 4.
Without specifying when, plaintiff asserts that defendant Lesane ordered another guard to search plaintiff immediately after plaintiff had been subjected to a strip search. Am. Compl., at 9. He states that defendant Lesane was present when he was "fully searched completely down to my bare skin." Id. Plaintiff alleges that no sooner had plaintiff left the strip search room when defendant Lesane, who had followed him out of the room, ordered another guard, Vermosa, to "put [him] on the wall" and search plaintiff again. Am. Compl. 9-10. Lesane explains that plaintiff was subjected to a strip-search pursuant to a policy requiring such searches of prisoners who work in the kitchen. Lesane Decl. 1, ¶ 10. The purpose of this policy is to ensure that prisoners do not take items from the kitchen and later use them as weapons. Id. Lesane does not deny ordering the clothed search performed on plaintiff immediately following the strip search. Lesane Decl. 1, ¶ 11.
III. Summary Judgment Standards
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 a judgment ...