The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS and RECOMMENDATIONS
Plaintiff, a state prisoner, proceeds pro se in this action filed pursuant to 42 U.S.C. § 1983. Defendant has moved for judgment on the pleadings (Doc. No. 47), and plaintiff has moved for summary judgment (Doc. No. 48). For the reasons outlined below, the undersigned recommends that the plaintiff's motion be denied, and defendant's motion be granted in part, and denied in part.
On October 23, 2008, plaintiff filed his original civil rights complaint in this action, alleging that his due process and equal protection rights were violated when he was not re-assigned to a prison job at his prior rate of pay after being released from administrative segregation. See Doc. No. 1 at 7-8. Plaintiff alleged that he was found not guilty of the infraction for which he was segregated, and that, while he had been returned to a paying position, prison officials had failed to return him to a position at his prior level, despite several pay positions becoming available. See Doc. No. 1 at 8.
On January 13, 2009, the court dismissed the complaint with leave to amend because plaintiff had failed to state a claim upon which relief could be granted. See Doc. No. 6. In particular, the court found that, because plaintiff had no constitutional right to work, he was not entitled to: (1) due process procedural protections prior to being deprived of work; (2) back wages; or (3) placement or reinstatement in any position. See Doc. No. 6 at 3.
Plaintiff subsequently amended his complaint twice, and the action now proceeds on the second amended complaint.
Plaintiff alleges that defendant Scott Chesser is employed as the Superintendent I of Prison Industries Authorities ("PIA") at California State Prison - Solano ("CSP-Solano"). See Doc. No. 19 at 5. In January 2007, when plaintiff was a state prisoner housed at CSP-Solano, defendant Chesser interviewed plaintiff about a grievance plaintiff had filed. Id. Plaintiff does not provide the court with any other information about the grievance.
According to plaintiff, at that time, "Scott Chesser stated to plaintiff Oliver that if he drop the 602 inmate appeal he can guarantee plaintiff Oliver B-Slot of $0.65 per hour....Plaintiff refuse[d] to accept defendant Scott Chesser offered [sic] and the outcome of plaintiff refusal was likely resulted in no promotion." See Doc. No. 19 at 5-6.
As of this date September 03, 2009 plaintiff have not been promoted to his original pay position of $0.65ó per hour (B-Slot), Just because plaintiff refused to drop his inmate appeal. Plaintiff have newly trained newly arrived inmates and watch them be promoted to the position that plaintiff should have been in. .....
There is still a reasonable dispute as to whether plaintiff's grievance was the actual cause of him not being promoted. Similarly, although plaintiffs' [sic] is not entitled to a job in the prison system or a paying position, there is also a reasonable dispute as to whether and to what extend [sic] plaintiff grievances played a role in defendant Scott Chesser [sic] ultimate decision. Plaintiff is informed and believes, and thereon alleges, that defendant Scott Chesser have acted intentionally in the manner described above, and with knowledge of plaintiff's suffering and the risk of further serious harm that could result from his action or refusal to act.
According to plaintiff, he has been employed since May 2007 with the PIA. See Doc. No. 19 at 5. Plaintiff does not provide the court with any other details about his current job in his amended complaint, nor does he provide any information regarding the availability of "B" slot positions since May, 2007.*fn1
Plaintiff seeks monetary damages and injunctive relief on account of defendant's retaliatory conduct, and discrimination in violation of the Fourteenth Amendment.
Plaintiff's Motion for Summary Judgment
Plaintiff makes additional allegations in his motion for summary judgment. Specifically, he alleges that Subsequent to his appeal of his right to equal treatment in promotion within the Prison Industries Authority, he was targeted, coerced, and threatened to drop his appeal or suffer further punitive action. Plaintiff had trained numerous other inmates, and watched as those inmates were promoted to higher pay scales, while he remained in the same job status. Defendant CHESSER offered Plaintiff a higher pay if he would drop his appeal with respect to the disparate treatment. Plaintiff's subsequent refusal to drop the appeal resulted in no promotion.
In support of his motion, plaintiff attaches: (1) the declaration of D. Garbutt; (2) the declaration of John B. Estep; (3) Appeal Log. #CSP-S-10-00884, in which plaintiff appealed a May 5, 2010 chrono signed by Gary Huff writing plaintiff up for being out of bounds at work; and (4) Appeal Log #CSP-S-10-0462, in which plaintiff appealed a February 3, 2010 chrono signed by defendant writing plaintiff up for failing to report to work.
The declaration of D. Garbutt reads that declarant is a prisoner at CSP Solano, that he has worked with plaintiff and that plaintiff trained him. See Doc. No. 48 at 11. He additionally declares
I have personally witness [sic] plaintiffs' Oliver being pass over for promotion on numerous occasion, while myself continue to be promoted. I also witness other inmates being promoted and given a pay raise who started in the saw and shear department way after plaintiff Oliver, and yet plaintiff Oliver remain at the lowest pay scale rate. During the period I work in the saw and shear department, plaintiffs' Oliver was performing at the skill level required of his current level of "B" (special Skills), as outlined by the Prison Industry Authority pay scal [sic]. The "B" skill is defined in part as set-up and layout craftmen who are responsible for difficult and technical work and have limited supervision. Plaintiffs' Oliver was and can perform in this criteria.
The declaration of John B. Estep reads that declarant is a prisoner housed at CSPSolano. See Doc. No. 48 at 13. Declarant writes that on October 26, 2007, declarant was released from Administrative Segregation into general population, and returned back to his same job assignment at the same rate of pay. Id. Declarant writes that he was not required to wait to receive his same rate of pay, and did not have to submit an application to be re-hired. Id.
Appeal CSP-S Log No. 10-00884 concerns a CDC-128 chrono plaintiff received on May 5, 2010, from plaintiff's supervisor Gary Huff for being out of bounds at work. According to the chrono, "[o]n 5/04/2010, at approximately 1310 hours, I observed inmate Oliver Out of Bounds in the Welding department....during his assigned work hours. I have verbally counseled inmate Oliver on several occasions in the past regarding PIA policy, and told him that the next violation would result in a CDC-128." See Doc. No. 48 at 20.
Appeal CSP-S Log No. 10-00462 concerns a CDC-128 chrono plaintiff received on February 3, 2010, signed by defendant, after plaintiff failed to report for his work assignment on February 2, 2010. The chrono reads that "[plaintiff's] housing unit officer, C/O Williams, stated Oliver refused to go to work. Oliver has been ...