The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Defendants move for summary judgment (Dkt. No. 69) on plaintiff's Second Amended Complaint ("SAC") (Dkt. No. 17) filed April 11, 2007. Plaintiff is a former state prisoner proceeding without counsel and in forma pauperis with this action filed pursuant to 42 U.S.C. § 1983. Plaintiff was released from prison on March 22, 2009, and now resides in Woodland, California. (Dkt. No. 69-4, at 15; Dkt. Nos. 52, 53, 62-64.) This action proceeds against remaining defendants Amero, Dangler, James and Smith, employees of the California Department of Corrections and Rehabilitation ("CDCR") at High Desert State Prison ("HDSP"), for alleged violations of plaintiff's rights under the First and Eighth Amendments to the United States Constitution.
Plaintiff alleges that he was transferred to HDSP, a Level IV prison, in June 2003, from California State Prison-Solano ("CSP-S"), after correctional officers there "stockpiled" rules violation reports ("RVRs") against plaintiff for refusing to cut his hair. The issues in this case have been narrowed by this court's order filed March 19, 2009 (Dkt. No. 51), adopting findings and recommendations filed January 28, 2009 (Dkt. No. 49). Remaining are plaintiff's contentions that throughout his incarceration at HDSP, defendants acted in retaliation against him for filing administrative grievances ("602s") challenging, inter alia, restrictions placed on plaintiff that were allegedly inconsistent with privileges associated with his program status.*fn1 Plaintiff alleges that defendants retaliated against him when they twice denied him attendance at religious services, and then by transferring him to another housing unit where plaintiff was assaulted by other inmates. Plaintiff contends that defendants violated his First Amendment right to the free exercise of his religion and to file administrative grievances, and his Eighth Amendment right to be free from foreseeable harm and to obtain adequate medical care.
Pursuant to defendants' motion to dismiss filed August 20, 2008 (Dkt. No. 36), the court dismissed as moot plaintiff's motion for injunctive relief to keep his hair long, based on the revision of CDCR's pertinent grooming regulation. See Cal. Code Regs. tit. 15, § 3062(e) ("An inmate's hair may be any length but shall not extend over the eyebrows, cover the inmate's face or pose a health and safety risk. . . ."). The court denied plaintiff's claim that CDCR's prior hair-length regulation violated his rights under the First Amendment Free Exercise Clause, based on the Ninth Circuit's holding in Henderson v. Terhune, 379 F.3d 709, 712 (9th Cir. 2004) (finding that CDCR's prior hair-length regulation was reasonably related to legitimate penological interests). The court also denied plaintiff's damages claim under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") on the ground that defendants were entitled to qualified immunity prior to the Ninth Circuit's decision which clearly established plaintiff's rights, in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) (finding that CDCR's prior hair-length regulation violated RLUIPA). In addition, the court dismissed plaintiff's state law claims for failure to demonstrate compliance with the California Tort Claims Act claim presentation requirements. See Order filed March 19, 2009 (Dkt. No. 51), adopting Findings and Recommendations filed January 28, 2009 (Dkt. No. 49).
Defendants now move for summary judgment on each of plaintiff's remaining claims based on the substantive standards set forth in Federal Rule of Civil Procedure 56 or, alternatively, qualified immunity. For the reasons set forth below, this court recommends that defendants' motion be denied in its entirety.
II. Legal Standards for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed. R. Civ. P. 56(c). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Anderson, 477 U.S. at 248; T.W. Elec. Serv., 809 F.2d at 631.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) Advisory Committee's note on 1963 amendments).
In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).
On June 18, 2008, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 29.) See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
III. Legal Standards for Qualified Immunity
"Qualified immunity balances two important interests -- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 129 S.Ct. 808, 815 (2009). The objective of the qualified immunity doctrine is to ensure "that 'insubstantial claims' against government officials be resolved prior to discovery and on summary judgment if possible." Anderson v. Creighton, 483 U.S. 635, 640 n. 23 (1987), citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982) . Meeting this objective requires that immunity questions be resolved "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).
"An official is entitled to summary judgment on the ground of qualified immunity where his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Until recently, courts considering an official claim of qualified immunity followed the two-step protocol established in Saucier v. Katz, 533 U.S. 194 (2001), which required a court first to determine whether the defendant violated a constitutional right and then to determine whether that right was clearly established. In Pearson v. Callahan, the Supreme Court reversed this earlier rule and gave courts discretion to grant qualified immunity on the basis of the 'clearly established' prong alone, without deciding in the first instance whether any right had been violated. Id. Thus, a court may grant qualified immunity if "the facts that a plaintiff has alleged or shown [do not] make out a violation of a constitutional right" or if "the right at issue was [not] 'clearly established' at the time of defendant's alleged misconduct.'" James v. Rowlands, 606 F.3d 646, 650-51 (9th Cir. 2010), quoting Pearson, 129 S.Ct. at 816, 818 (internal citations omitted). Conversely, a motion based on qualified immunity will be denied if, construing the facts in the light most favorable to the party asserting the injury, defendant violated a constitutional right that was clearly established at the time of the alleged injury. Saucier, 533 U.S. at 201.
IV. Undisputed and Disputed Facts
All facts, both disputed and undisputed, are set forth as pertinent to each of plaintiff's claims and defendants' motion for summary judgment thereon. Facts designated undisputed were presented by defendants in their "Statement of Undisputed Facts" ("SUF") (Dkt. No. 69), and were either expressly not disputed by plaintiff in his "Statement of Disputed Facts" ("PDF") (Dkt. No. 75) or, following the court's review of the submitted evidence, are deemed undisputed.
The parties agree on the following threshold facts. At all times relevant to this action, plaintiff was a prisoner in the custody of CDCR at HDSP in Susanville, California. (SUF 1.) Plaintiff began his most recent term of incarceration on December 14, 2000, following revocation of his parole. (SUF 6.) Plaintiff was transferred to HDSP as a Level IV inmate on June 25, 2003. (SUF 7.)
A. First Amendment Right to Religious Freedom/Retaliation
The Second Amended Complaint alleges that plaintiff was denied his First Amendment right to the free exercise of religion when, on March 21, 2004, defendant Amero ordered that plaintiff not be permitted to attend religious services. (SAC, at 10). Defendants contend that summary judgment should be granted on this issue because Amero's refusal to allow plaintiff to attend religious services was based on plaintiff's failure to sign up for services in accordance with established procedures. Plaintiff contends that he did sign up for services and that he was denied attendance in retaliation for filing administrative grievances. The court addresses plaintiff's claim as to both March 21, 2004, and May 2, 2004, because, as discussed herein, both appear to be administratively exhausted. Amero is the only defendant against whom this claim is made.
The following facts are undisputed. At all times relevant to this cause of action, plaintiff was housed in B-Facility and classified in Work Group "C"/Privilege Group "C." Any inmate, including a Privilege Group "C" inmate, wishing to attend religious services must sign up to so attend. (SUF 17, 18; see also, Def. Exh. A (Dkt. No. 69-2, at 12) (setting forth Cal. Code. Regs. tit. 15, § 3210 (establishment of religious programs), and § 3274 (inmate count and movement).) A sign-up sheet is kept in each building, and every inmate has access to the sheet. (SUF 19.) At the end of the week, an inmate clerk collects the sign-up sheets for each housing unit and types a master roster with the names of those inmates who have signed up for services. (SUF 20.) The typed roster is given to the Sergeant, who reviews the roster and compares it to the sign-up sheet to make sure that every inmate who signed up is on the typed roster, and that inmates who did not sign up are not on the roster. The Sergeant then signs off on the roster and copies are distributed to all facility officers. (SUF 21.) During the relevant period, defendant Amero was the Correctional Sergeant who reviewed and signed off on the religious services roster for B-Facility. (SUF 3, 23.)
Inmates are required to sign up for services to maintain order and security within the institution. Use of sign-up sheets allows staff to track inmates' movements within the facility, and provides for the orderly release and return of inmates to and from their housing. If an inmate fails to attend services and his name is on the list, staff can call the housing unit to ensure that the inmate is not in an area where he should not be. Knowing the exact movements of inmates helps staff prevent the possibility of an undetected escape and assists officers in deterring inmates involved in illegal activity by monitoring which inmates are scheduled to be on the yard, inside their housing units, or in the program area where the chapel is located. (SUF 22.)
Plaintiff filed two related administrative grievances alleging that defendant Amero refused to allow him to attend religious services on March 21, 2004, and again on May 2, 2004. (SUF 24; SAC, at 58-61, 89-91; Def. Exh. A-1, Dkt. No. 69-2, at 8-11; Pltf. Exhs at PDF, Dkt. No. 75, at 8-16, 44-48, 60-62.)*fn2 The first grievance was filed (or at least signed) on March 21, 2004. (See, e.g., Dkt. No. 17, at 42, 55; Dkt. No. 75, at 60.) The second grievance, filed May 2, 2004, alleged that plaintiff's denial of access to religious services was "out of retaliation for filing Appeal 602s." (Dkt. No. 17, at 58; Dkt. No. 69-2, at 8.) Interim grievances alleged, inter alia, denial of access to religious services "for filing grievances" and include those grievances filed April 8, 2004 (Dkt. No. 17, at 56, 72; Dkt. No. 75, at 50), and April 11, 2009 (Dkt. No. 75, at 40). Another grievance, filed on April 28, 2004, alleged that correctional officer Miranda (not a defendant in this action) acted in retaliation by improperly posting one of plaintiff's administrative grievances. (Dkt. No. 75, at 34-35.)
The parties agree that plaintiff's grievances were partially granted at the first level response, which noted that inmates assigned to C/C status are allowed to attend religious services in compliance with regulatory requirements. (SUF 26.) Plaintiff elevated the grievance to the second level of review, claiming his original grievance had not been returned. (SUF 27.) Plaintiff submitted the grievance to the Director's level of review on August 9, 2004, claiming that inmate Hogan had placed plaintiff's name on the religious services sign-up sheet, but still plaintiff was denied release to attend services. (SUF 29.) Plaintiff's appeal was denied at the Director's level, with a finding that on each of the occasions when plaintiff was refused release to the chapel, his name was not on the religious services sign-up lists. (SUF 30.)
The parties dispute the following facts. Defendants contend that plaintiff admitted to Sergeant Brewer, when he interviewed plaintiff relative to these grievances, that he had merely assumed that staff had intentionally refused to allow him to attend religious services. (SUF 25, citing Def. Exh. A (Dkt. No. 69-2, at 10) (Second Level Review, finding "Sergeant Brewer asked you about staff intentionally not letting you go to service. . . . you stated that you assumed that it was intentional due to the fact that you were not allowed to go [and] requested that this matter be investigated").) Plaintiff contends that he "never admitted that he assumed staff had intentionally refused to allow him to attend religious services. Staff refused to allow him to attend religious services because of his 602 Appeals." (PDF 25, citing Pltf. Exh. A (administrative appeals) (Dkt. No. 75, at 8-17); Exh. D (plaintiff's declaration in which he states in pertinent part that he was retaliated against for filing administrative grievances) (Dkt. No. 75, at 56)); and Exh. E (administrative appeals) (Dkt. No. 75, at 59-73)).
The parties also dispute whether the absence of plaintiff's name from the religious services sign-up sheets may have been attributable to clerical error. Defendants contend that plaintiff's May 2004 administrative appeal against Sergeant Amero "was partially granted, but the second level response noted that Nelson's name was not on the list of inmates to be released for services on either March 21, 2004 or May 2, 2004, and that this could have been due to a clerical error. DX A-1, p. 12." (SUD 28, citing Def. Exh. A (Dkt. No. 69-2, at 13 (Second Level Review, finding that plaintiff was denied access to religious services "due to his failure to sign up for religious services, or due to a clerical error in not placing his name on the list of inmate's (sic) to be released to the religious services")).) Plaintiff contends that "[t]here was not any clerical error, Nelson had Jason Hogan sign his name to the attendance service sheet on March 21, 2004 and May 2, 2004." (PDF No. 28, citing Pltf. Exh. D (plaintiff's declaration in which he states in pertinent part that he was retaliated against for filing administrative grievances) (Dkt. No. 75, at p. 56, ¶ 7).)
In support of his factual allegations, plaintiff has submitted the declaration of inmate Jason Hogan, who states in pertinent part that he was plaintiff's cellmate on March 21, 2004, and May 2, 2004; that "I personally signed Raymond Paul Nelsons' name to the religious service attendance sheet on March 21, 2004 and May 2, 2004 as I had done every Sunday (sic);" and that "Sergeant Amero refused to allow Raymond Paul Nelson access to religious services in retaliation for filing 602 Appeals." (Hogan Decl., Dkt. No. 75, at 6.) While Hogan's second assertion does not appear to be based on personal knowledge or meet the other requirements of Federal Rule of Civil Procedure 56(e) ("[a] supporting or opposing affidavit must be made on personal ...