The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FURTHER FINDINGS RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On September 2, 2010, the undersigned issued findings and recommendations (Doc. 224) that the defendants' motion for summary judgment (Doc. 201) be granted in full. On April 7, 2011, those findings and recommendations were adopted by the court in part (Doc. 235). The court declined to adopt the recommendations as to claims 9, and 10m, o, and x, and those claims were referred back to the undersigned for further consideration. Prior to issuing further findings and recommendations, the undersigned allowed the parties an opportunity to file further briefs on the remaining issues in light of the District Judge's decision. Those briefs have now been filed (Docs. 237, 238).
A. PRIOR FINDINGS AND RECOMMENDATIONS
The background of this case, the undisputed facts, and the evidence, were set forth in the prior findings and recommendations. It is unnecessary to repeat them here. In the prior findings and recommendations, the undersigned set forth the following as to the remaining four claims/subclaims:
The defendants named in the Supporting
Allegations (Counts) below then deprived Plaintiff and his associates further of secured rights, privileges, and immunities by causing the campaign of retaliatory oppression alleged above at Claims 1-8 to continue being perpetrated against them as follows in direct relation to their documenting, reporting, publicizing though UNION's Internet web site (1union1.com), and otherwise petitioning for redress of the unlawful events, circumstances, and conditions alleged in Claims 1-8 above and in the Supporting Allegations (Counts) below which occurred after and because Plaintiff and his prisoner associates petitioned for redress of their food being repeatedly defiled by other prisoners. 9b: On 1/7/03, 1/11/03 & 1/15/03, ETHEREDGE, . . . GUTIERREZ . . . caused Plaintiff and his prisoner associates to be served food which prisoners on MCSP's "C" facility had contaminated with what was reported, identified, &/or said to be, respectively, "pubic hairs" & at least one rock-like object, fragmented razor blades, & at least one hook-shaped length of wire embedded within bitesize meat. 9c: On 1/11/03, . . . GUTIERREZ . . . caused several MAC members (see above, Claims 4 & 6) to be unlawfully threatened by GUTIERREZ with retaliatory disciplinary action and confinement in ad-seg for lawfully alerting their prisoner constituents entering the dining area to the razor blade fragments just discovered in that evening's dinner entree.
Here, Plaintiff's retaliation claims are again unclear. To the extent Plaintiff is claiming defendant Gutierrez threatened MAC members with disciplinary action, he has been denied third party standing to raise issues related to other prisoners. In support of his claims, Plaintiff again submitted his journal entries. In his journal entry for January 11, 2003, the day Plaintiff alleges defendant Gutierrez made threats, he states that he heard of the threats from MAC members, not that Gutierrez made the threats directly to Plaintiff. (Pl. Ex B at 558). There is nothing to support an interpretation of this claim that defendant Gutierrez threatened Plaintiff. Therefore, Claim 9 does not appear to include any retaliation claim.
In addition, as discussed below, defendants argue that the investigation into the alleged food contamination determined that it was Plaintiff and another inmate who were contaminating the food, and trying to incite other prisoners to revolt in order to transfer the food preparation duties to Facility B instead of Facility C where the kitchen facilities were. Therefore, any threat or actual disciplinary action was based on a legitimate penological goal, and Plaintiff was not actually engaged in protected activity. In support of this argument, defendants submit the investigation report, including the confidential statement reports, and Plaintiff's disciplinary proceedings wherein he was found guilty of the conspiracy to contaminate the food. Plaintiff contends that the investigation and report resulting therefrom were falsified. However, he fails to support these contentions with any evidence, such as a decision overturing the guilty disposition.
Therefore, the undersigned finds no retaliation claim remains in Claim 9. Even if one could be construed therein, Defendants provide evidence supporting their contention that the response to the contaminated food was a legitimate penological goal, and Plaintiff fails to provide any evidence to the contrary. Accordingly, defendant's summary judgment motion should be granted as to Claim 9.
The defendants named in the Supporting
Allegations (Counts) below then deprived Plaintiff and his associates further of secured rights, privileges, and immunities by causing the campaign of retaliatory oppression alleged above at Claims 1-9 to not merely continue being perpetrated against them but rather escalate and intensify as follows in direct relation to their documenting, reporting, publicizing through UNION's Internet web site (1union1.com), and otherwise petitioning for redress of the unlawful events, circumstances, and conditions alleged in Claims 1-9 above and in the Supporting Allegations (Counts) below which occurred after and because Plaintiff and his associates documented, reported, publicized through UNION, and otherwise grieved the recent food contaminations and related deliberate indifference, endangerment, and retaliatory acts alleged above at Claim 9. . . . 10m: Beginning 2/20/03, ETHEREDGE, . . . GUTIERREZ, . . . HOGAN, . . . LATTIMORE, POE, . . . WARREN . . . jointly caused Plaintiff and MAC Vice Chairman Bristow (see above, Counts 9f &10c) to suffer retaliatory & false disciplinary action which deprived them of rights and liberty without adequate Due Process and Equal Protection in direct retaliation to their having documented, reported, and otherwise grieved not only the previously discussed food contamination of 1/7/03, 1/11/03, & 1/15/03, but also the related retaliation they and their prisoner associates had suffered as a result. 10o: During the "investigation" supposedly conducted on Plaintiff's behalf by an assigned guard, ETHEREDGE, . . . GUTIERREZ, . . . HOGAN, . . . LATTIMORE, POE, . . . WARREN, .. . . jointly caused Plaintiff's requested prisoner witnesses to be threatened, intimidated, & otherwise prevented from answering discovery questions asked by Plaintiff through the assigned guard. . . . 10x: On 4/29/03, ETHEREDGE, . . . GUTIERREZ, . . . LATTIMORE, . . . WARREN . . . caused Plaintiff to suffer retaliatory transfer to a higher-security prison where he was put in ad-seg for 9 days and then deprived of several expensive items of personal property allowed at MCSP, as well as many of the liberties and privileges he had earned his first several years in prison before being transferred to MCSP in 1999 to facilitate his mental condition & prescribed needs as previously stated at ¶ 1 of this Section E.
Here Plaintiff argues that he suffered from several retaliatory acts because he reported contaminated food. As mentioned above, the defendants completed an investigation in to the alleged food contamination and determined it was Plaintiff and another inmate who conspired together to contaminate the food in an attempt to have the food preparation responsibilities transferred from Facility C to Facility B. While Plaintiff contends this investigation was falsified, he has not provided any support for that position. ...