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Knapp v. Hickman

September 2, 2010


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Defendants' motion for summary judgment (Doc. 201). Plaintiff filed an opposition to the motion (Doc. 209), and Defendants filed a reply (Doc. 218). Plaintiff also filed a motion to strike (Doc. 220) Defendants' reply, to which Defendants filed an opposition (Doc. 221) and Plaintiff filed a reply (Doc. 222).


A. Plaintiff's Allegations

The claims remaining in this case relate to Plaintiff's allegations that he has been retaliated against for exercising his constitutional rights, including freedom of speech, press, assembly and redress. He claims this retaliation began in June 2000, while he was housed at Mule Creek State Prison (MCSP). He claims the defendants filed false discipline reports, placed him in administrative segregation (ad-seg), confiscated documents, placed him in a holding cage, caused food to be contaminated, confiscated his winter jacket, subjected him to strip searches and public exposure, involuntary medication, witness intimidation, denied him medication, and had him transferred to a higher-security prison. He claims these acts of retaliation were done in response to his constitutionally protected rights, including informally reporting defendant Kaiser's inappropriate behavior, conversing with visitors, posting information on a bulletin board, filing inmate grievances, warning other prisoners about contaminated food, and speaking freely.

B. Undisputed Facts*fn1

1. On June 20, 2000, Plaintiff wrote a letter to Captain Mendoza regarding a mural painting project in the visiting room that had been canceled. In the letter, Plaintiff stated that he was writing to inform Captain Mendoza about the history of the project, to "reveal to you the patience and stamina c/o Kaiser has shown despite the lack of cooperation she has been given by various institution staff members" and to express his regret in beginning the project. (Plaintiff's Ex. B at 24-25, Doc. 213 at 122-23.)

2. On July 2, 2000, July 4, 2000, and July 9, 2000, Plaintiff's visits were terminated early. (Def. Stmt of Material Undisputed Facts ("DUF"), Doc. 202, #6)*fn2

3. On July 10, 2000, Plaintiff submitted a 602 Inmate Grievance regarding his early visit terminations. (Plaintiff's Ex. B at 35-37, Doc. 213 at 132-134; Defense's Ex. A at 2-12, Doc. 202-1.)

4. On July 12, 2000, defendant Kaiser issued Plaintiff a Rules Violation Report (RVR), form CDC 115, for his conduct in the visiting room on July 4, 2000. The charge was "Delaying a Peace Officer in the Performance of His/Her Duties," a division D offense. A hearing was held on July 16, 2000, wherein Plaintiff was found guilty of a reduced charge "Refusing a Direct Order," a division F offense. (Defense Ex. A at 33-39, Doc. 202-1.)

5. Lieutenant Etheredge's only involvement with the rules violation report was the classification decision he made, and referral to the senior hearing officer, on July 13, 2000. (DUF #3)

6. Lieutenant Etheredge was unaware of Plaintiff's inmate appeal at the time he classified and referred the rules violation report to the senior hearing officer.*fn3 (DUF #4)

7. Plaintiff's grievance activity shows that he submitted in excess of thirty inmate appeals before the commencement of this action. (DUF #5)

8. Plaintiff was informed on July 4, 2000, that Officer Kaiser was going to issue a rules violation report for his conduct in visiting on that day.*fn4 (DUF #7)

9. Officer Kaiser issued a CDC 128-A custodial counseling chrono on November 3, 2000, regarding visiting with others. (DUF #8)

10. Officer Kaiser issued a CDC-128-B informational chrono dated March 15, 2001, regarding grooming standards.*fn5 (DUF #9)

11. The chrono also documents that Plaintiff appeared to have a negative attitude toward her. (DUF #12)

12. Under the California Code of Regulations, except for immediate family members, visiting with more than one inmate on the same occasion requires the approval of the warden or regional parole administration where the inmates are confined. (DUF #16)

13. Plaintiff did not have authorization to visit with anyone other than his approved visitor.*fn6 (DUF #17)

14. Officer Kaiser was required to enforce the visitation rules and to report violations. (DUF #18)

15. On November 3, 2000, Officer Kaiser observed Plaintiff conversing with another prisoner and the other prisoner's visitors. (DUF #19 & response thereto).

16. The grooming regulations, then in effect, provided that an inmate's face was to be clean shaven at all times, except for a mustache or medical exception, neither of which applied to Plaintiff. (DUF #27)

17. Upon receipt of information that Plaintiff may intend to take his own life, Plaintiff was escorted to the main infirmary and referred for evaluation. (DUF # 32)

18. Medical staff determined that Plaintiff did not pose an immediate threat to himself. (DUF # 33)

19. Personnel from the CIA indicated they would contact the institution and schedule an interview with Plaintiff. (DUF #34)

20. Plaintiff was confined to the ASU pending further review. (DUF #35)

21. Captain Warren's only involvement in this decision was an administrative review two days later. (DUF #36)

22. Plaintiff met with the Institutional Classification Committee (ICC) on September 26, 2001, for his initial ad-seg placement review. (DUF #37)

23. The committee elected to release Plaintiff to Facility B general population. (DUF #38).

24. Associate Warden Brown's only involvement in Plaintiff's ad-seg confinement was as a member of the committee that reviewed his placement and released him back to his yard. (DUF #39)

25. As the result of Plaintiff's inmate appeal, Log No. MCSP 01-03110, Warden Knowles ordered the amendment of the September 2001, classification chrono. (DUF #40)

26. AW Brown did not prepare the original classification chrono. (DUF #41)

27. Officer Hogan actually removed the materials from the bulletin board upon Captain Warren's order. (DUP #44)

28. The California Code of Regulations, Title 15, section 3250 allows for the publication and distribution of an inmate publication only with the institution head's specific approval. (DUF #47)

29. Additionally, section 3230 allows for the distribution of Inmate Advisory Council material upon the approval of the warden or his designee. (DUF #48).

30. Plaintiff posted personal documents on facility bulletin boards. (DUF #49)

31. These documents did not meet the criteria as an inmate publication nor Inmate Advisory Council material. (DUF #50)

32. Further, the posting of these materials was not approved by facility staff. (DUF #51)

33. These items were confiscated. (DUF #52)

34. Defendants Kaiser, King, and Warren were not personally involved in Plaintiff's claim concerning Officer Smith requiring him to have his ID card on display instead of in his pocket when he entered the dining facility, on May 29, 2002. (DUF #56)

35. Section 3019 provides that inmates must carry on their person any identification and privilege card issued for purposes of identification, and surrender his identification card at the request of any employee. (DUF #60)

36. Plaintiff admits that on May 30, 2002, Officer Ellis, not Officer Smith, escorted him to the program office and placed him in a cage. (DUF #62)

37. Plaintiff admits that on May 30, 2002, Sergeant Murray was the only correctional officer involved in his claim that he was made to eat standing up in a holding cage. (DUF #63)

38. Neither Lieutenant Gutierrez nor Officer Smith were personally involved in the screen out of Plaintiff's inmate appeal on May 31, 2002. (DUF #64)

39. An appeal dated May 31, 2002, complaining of harassment by Sergeant Murray and Officer Smith on May 29 and 30, 2002, was screened out as a duplicate appeal by E.A. Reyes, CCII. (DUF #65)

40. Neither Lieutenant Gutierrez nor Officer Smith were aware of the December 6, 2001, letter to State Senator Vasconcellos. (DUF #66)

41. They were neither the recipient of the letter nor did they receive a courtesy copy. (DUF #67)

42. Neither Lieutenant Gutierrez nor Officer Smith were aware of the January 18, 2002, lawsuit. (DUF #68)

43. Neither of them was named as a defendant, nor served with a copy of the complaint. (DUF #69)

44. None of the named defendants -- Kaiser, King, and Warren -- mentioned the lawsuit to them. (DUF #70)

45. Captain Lattimore did not mention this lawsuit to either Lieutenant Gutierrez or Officer Smith. (DUF #71)

46. Neither Lieutenant Gutierrez nor Officer Smith were aware of the March 11, 2002, letter to the senate public safety committee. (DUF #72)

47. They were neither the recipient of the letter nor did they receive a courtesy copy. (DUF #73)

48. Plaintiff was found guilty of disruptive behavior during an emergency count as a result of MCSP RVR B09/02-013. Officer Poe was the reporting employee, Lieutenant Gutierrez was the senior hearing officer, and Captain Lattimore was the reviewer. (DUF #78)

49. Emergency counts are only conducted based upon information that an inmate has possibly escaped from the institution. (DUF #80)

50. When this occurs, it is necessary to confirm that all inmates are accounted for as soon as possible. (DUF #81)

51. In the event of an escape, it is imperative that the escapee be identified as quickly as possible to assist in apprehending the escapee. (DUF #82)

52. An investigation into a food contamination incident concluded on February 6, 2003. (DUF #86)

53. The central kitchen is located on Facility C and is staffed by Facility C general population inmates. (DUF #89)

54. On February 10, 2003, Plaintiff was placed in ad-seg. (DUF #92)

55. Lieutenant Etheredge reported that on the day of the razor blade incident, Inmate Bristow and Inmate Ramos were observed entering the dining hall together. (DUF #105)

56. After receiving their food trays and sitting at the same table, a piece of razor blade was discovered by Inmate Ramos in his food tray. (DUF #106)

57. Inmate Bristow immediately stood up and yelled out to the other inmates that there were razor blades in the food. (DUF #107)

58. After Inmate Ramos found a second piece of a razor blade in his tray, sergeant Gentile took the tray and contents to the cook's office. (DUF #108)

59. Staff cook Sampson found a third piece upon further inspection of Ramos' food tray. (DUF #109)

60. A search of the remaining main dish in the serving trays in the kitchen did not produce evidence of any other contamination. (DUF #110)

61. In February 2003, Officers Hein and Keeland did search Plaintiff's cell and confiscated a state issue, blue quilted nylon jacket. (DUF #114)

62. A review of Plaintiff's property records indicated that he was issued such a jacket in November 2001, while assigned to the Facility B yard crew. (DUF #115)

63. In January 2002, Plaintiff was reassigned to the vocational mill and cabinet shop. (DUF #116)

64. The confiscated jacket was intended only for inmates assigned to the yard crew, and Plaintiff was not entitled to possession of it. (DUF #117-118)*fn7

65. Plaintiff submitted two inmate appeals claiming retaliatory cell searches by Officers Keeland and Hein in February: MCSP Log No. 03-00855, and an unlogged appeal, both submitted February 2, 2003. (DUF #119)

66. Captain Lattimore participated in the first level response to Plaintiff's appeal No. 03-00885. (DUF #120)

67. Captain Warren and Lieutenant Gutierrez had no involvement in the processing of either appeal (DUF #121)

68. Appeals Coordinator Hansen, a non-party, was responsible for processing these appeals. (DUF #122)*fn8

69. Defendants Etheredge, Gutierrez, Lattimore, Sauceda, and Warren were not personally involved in the day to day operation of the ad-seg unit in which Plaintiff was housed commencing February 10, 2003. (DUF #123)

70. Correctional Officer M. Roberts was the assigned investigative employee for Plaintiff's RVR Log #B02/03-025, and his report was reviewed by Facility Captain Lattimore. (DUF #124)

71. Plaintiff submitted questions for Captain Warren and Lieutenant Gutierrez, and for his inmate witnesses. (DUF #125)

72. Some of Plaintiff's questions were disallowed, others were asked. (DUF #128)

73. Seven of Plaintiff's inmates witnesses responded to Plaintiff's questions. (DUF #129)

74. Other inmate witnesses Plaintiff had requested were unwilling to respond to his questions. (DUF #130)

75. Plaintiff was placed on involuntary medication beginning February 11, 2003 (DUF #134)

76. In March 2003, Plaintiff appealed the involuntary medication, stating on March 5, 2003, that he was "neither gravely disabled nor mentally incompetent." (DUF #137)

77. Also on March 5, 2003, Plaintiff stated that he wanted to stop taking all psychotropic ...

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