ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants J. Miranda and Rod A. Baillie have filed a motion for summary judgment as to all of plaintiff's claims. Plaintiff has filed a cross-motion for summary judgment as to his claims against Miranda arising out of the first and third incidents of alleged retaliation that are itemized below. He also has filed a motion for judicial notice. Fed. R. Ev. 201. For the reasons explained below, the undersigned recommends that defendants' motions be granted and that plaintiff's motions be denied.
This action involves the following allegations: (1) defendant Baillie set in motion a stream of events that caused other prison officials to subject him to unconstitutional conditions of confinement; (2) defendant Miranda retaliated against plaintiff for filing a grievance by subjecting him to harsh treatment while escorting plaintiff to the showers, delaying plaintiff's access to a shower and disturbing plaintiff's belongings during a cell search.
Plaintiff requests that the court take judicial notice of various matters. Defendants object to this request.
Upon properly supported request by a party, a federal court may take judicial notice of adjudicative facts. Fed. R. Ev. 201(a), (d). Facts subject to judicial notice are those which are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Ev. 201(b). Here, plaintiff requests that the court take judicial notice of the following: (1) plaintiff has limited access to the prison law library; (2) certain sections of the Departmental Operational Manual of the California Department of Corrections and Rehabilitation should be removed; (3) that the attorneys who represented defendants acted as a "tag team" by asking too many questions at plaintiff's deposition; (4) there is no evidence that the reason Miranda lost his job at the California Department of Corrections was because of his alleged conduct in the events giving rise to this action. None of the above alleged facts are facts that are generally known or capable of accurate and ready determination. Furthermore, none are facts appear to have any relevance to the issues in dispute in this case. See Fed. R. Ev. 401, 402. Therefore, the request for judicial notice is denied.
II. Motion for Summary Judgment
Plaintiff's January 25, 2006, amended complaint alleges the following: (1) that defendant J. Miranda delayed releasing plaintiff for a shower in retaliation for plaintiff having exercised his First Amendment rights; (2) that J. Miranda slammed plaintiff against a wall while making racist comments to plaintiff in retaliation for plaintiff's exercise of his First Amendment rights; (3) that J. Miranda searched plaintiff's cell in retaliation for plaintiff having exercised his First Amendment rights; (4) that defendant Baillie passed a note to an unspecified prisoner falsely stating that plaintiff was associated with a gang which ultimately resulted in plaintiff's detention in a dining hall for eight hours under constitutionally unacceptable conditions.
At all times relevant to this action, plaintiff was a prisoner confined at High Desert State Prison ("HDSP"). Amended Complaint ("Am. Compl."), at 1. Defendants Baillee and Miranda were guards at HDSP. Def. Baillie's Answer, ¶ 1; Def. Miranda's Mot. for Summ. J., Stmt. of Undisp. Facts, Attach. B, Decl. of Miranda ("Miranda Decl.").
1. Facts Relevant to Claims Against Baillie
Plaintiff alleges that at some unspecified time, Officer Baillie set in motion a chain of events leading to other prison officials subjecting plaintiff to unconstitutional conditions of confinement. Accordingly to plaintiff, Baillie created a list that falsely identified plaintiff as a member of a prison gang known as the Black Guerrilla Family ("BGF"). Baillie allegedly represented to other prison authorities that this list was a "kite"*fn1 that had been passed to him by "an anonymous" inmate. Am. Compl., at 6; Pl.'s Dep. lodged April 4, 2008, ("Pl. Dep."), at 39. Plaintiff denies being a gang member or associating himself with a gang. Pl.'s Dep., at 20, 23-24. Plaintiff further asserts that the note was passed on to Captain Brittle, who ordered a sweep of all suspected BGF members.*fn2 Am. Compl. at 6. Plaintiff concedes that he never saw the note that Baillie allegedly passed. Pl.'s Dep., at 58-60. At deposition, plaintiff testified that another prisoner, Anthony Little, told him about it and that he intends to call Mr. Little as a witness at trial. Id.
On December 30, 2002, in preparation for a lockdown prison officials confiscated all of plaintiff's and his cellmate's property from their cell. Id. at 30-31. The next day, December 31, 2002, Captain Bittle imposed a lockdown on African-American prisoners. Am. Compl., at 6.
All prisoners who were, or suspected to be, associated with the BGF were subjected to a sweep. Id. According to plaintiff, he was included in this sweep solely because of the note Baillie allegedly passed. Pl.'s Dep., at 35, 52. Thus, plaintiff asserts, in response to this falsified list, guards removed plaintiff from his cell, stripped him, searched him, handcuffed him and placed in the dining hall. Def. Baillie's Mot. for Summ. J., Stmt. of Undisp. Facts ("SUF") 5; Pl.'s Dep., at 27. Plaintiff says that his handcuffs were tight enough that they broke his skin, Am. Compl., at 33-34, but did not cause bleeding. Pl.'s Dep., at 33, 45. After sitting on a stool in the dining hall for about 8 1/2 hours, a guard returned plaintiff to his cell and removed the handcuffs. Id. at 37. Thereafter, he was placed in administrative segregation because he was suspected of gang activity. Id. at 31, 40. After one week, plaintiff was released because there was no evidence that he was associated with the BGF. See also Id. at 42.
It is undisputed that Baillie did not remove plaintiff from his cell, strip him, search him, handcuff him or place him in the dining hall. Id. at 31. It is also undisputed that Baillie did not order any of these things. Id. at 19-24, 68. Defendant Baillie had no part in deciding who would be subject to the sweep and who would ultimately be placed in administrative segregation. Id. at 67, 68. Nonetheless, plaintiff claims that Baillie is responsible for how plaintiff was treated on December 31, 2002. This claim is based solely on plaintiff's belief that Baillie passed the falsified "anonymous" note associating plaintiff with the BGF. Id. at 28, 30, 52, 67-68. For purposes of this motion, defendant Baillie does not deny plaintiff's treatment or that he passed such a note up the chain of command.
2. Facts Relevant to Claims Against Miranda
On November 2, 2003, plaintiff called defendant Miranda, who was collecting outgoing mail, over to his cell. Pl.'s Dep., at 70. They had a disagreement over whether plaintiff's outgoing mail had to be unsealed. Miranda directed plaintiff to pass his mail in an unsealed envelope through the slot in the door. Id. Plaintiff believed that he could give it to Miranda in a sealed envelope because mailroom staff would inspect the sealed mail anyway for contraband.
Id. Therefore, plaintiff refused Miranda's order. Id. Miranda again ordered plaintiff to pass the mail through the slot without sealing the envelope, and plaintiff complied. Id. at 71. Plaintiff filed a grievance about the incident. Id.
Plaintiff had no more contact with Miranda until January 11, 2004, when a lockdown*fn3 was ending. See Def. Miranda's Mot. for Summ. J. Stmt. of Undisp. Facts, Attach B, Miranda Decl., at ¶¶ 4, 5; Pl.'s Dep., at 76. Ending a lockdown is a gradual process during which there is a heightened risk of prisoners attacking each other. Miranda Decl., at ¶¶ 4-5. For security reasons, guards escort prisoners to and from showers one at a time. Id. at ¶ 4. They also conduct random searches of prisoners' cells. Id. at ¶¶ 5, 6. Sometimes guards search a cell while its occupants are in the shower, in which case the prisoners are held in shower stalls until the search is finished. Id. at ¶ 7. Sometimes when prisoners are held in shower stalls during searches, all the stalls are occupied. Id. When this happens the time for other prisoners to shower is delayed. Id.
At approximately 2:15 p.m. that day, Miranda offered plaintiff and his cellmate, Washington, an opportunity to shower. Pl.'s Dep., at 72. Plaintiff accepted; Washington declined. Id. at 72-73. Plaintiff told Miranda that he wanted a shower to accommodate his disability.*fn4 Id. at 72. At around 8:00 p.m., Miranda escorted plaintiff to the shower. Id. at 73. Plaintiff says that he was accustomed to using a shower on a lower level and he headed in that direction. Id. at 73-74. Miranda demanded to know where plaintiff was going. Id. at 74. Plaintiff asserts that Miranda grabbed him and threatened to "slam [plaintiff's] black ass to the concrete," while "snatching, pushing and pulling . . . plaintiff to the shower . . . ." Id. at 74, 76, 79. For purposes of this motion, defendant Miranda does not dispute that he made racial slurs directed at plaintiff nor dispute using the force ...