The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS and RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis, and seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff proceeds on his complaint filed December 11, 2009, in which he alleges that defendant Fields retaliated against him in violation of his First Amendment rights. Plaintiff seeks monetary and injunctive relief.
Plaintiff has moved for summary judgment (Doc. No. 35), which defendant opposes (Doc. No. 48). Defendant has also moved for summary judgment, and to dismiss the complaint for failure to exhaust under Federal Rule of Civil Procedure 12(b) (Doc. No. 45), which the plaintiff opposes (Doc. No. 51).*fn1 For the reasons outlined below, the undersigned recommends that the motion to dismiss be denied, and that the summary judgment motions be denied in part, and granted in part.
Motion to Strike (Doc. No. 52)
Plaintiff has moved to strike certain documents submitted by defendant in camera, arguing that they are irrelevant, or otherwise prejudicial. The court will determine this motion first, before turning to the merits of the dispositive motions.
The documents submitted in camera which plaintiff seeks to exclude are confidential documents from plaintiff's central file which document his gang affiliation activity. Plaintiff appears to allege that the documents should be stricken because, under the Ninth Circuit's decisions in Bruce v. Ylst, 351 F.3d 1283 (9th Cir. 2003), and Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997), the "some evidence" standard does not apply to retaliation claims. Plaintiff appears to argue that defendant should not be allowed to use his central file documents to establish that there is "some evidence" to support defendant's allegedly retaliatory behavior of changing plaintiff's gang affiliation.
In the Bruce case, defendants had actually validated the prisoner based on evidence that was previously determined to be insufficient to conclude that the prisoner was a gang member. That evidence, "while not conclusive of a retaliatory motive, tends to show that the validation was not motivated by any recent gang activity on [plaintiff's] part." See Bruce, 351 F.3d at 1288. Defendants then argued that the district court's decision to grant summary judgment should be upheld because the record included "some evidence" of the plaintiff's gang affiliation. Id. at 1289. The Ninth Circuit concluded that summary judgment on the retaliation claims was in that instance inappropriate, because the plaintiff had raised a jury issue that the stated penological goals -- stopping prison gang activity -- were not legitimate, even though plaintiff "arguably ended up where he belonged." Id.
However, there is nothing in Bruce or in Hines which requires this court to exclude evidence documenting plaintiff's gang affiliations, or to find that documents from plaintiff's own file are irrelevant. Moreover, plaintiff has not been validated as a gang member. Instead, this court reads the cases to provide guidance about the appropriate weight this court must give the evidence.
As to plaintiff's other grounds, plaintiff has failed to articulate sufficient support for his claims that the documents are prejudicial or a waste of time. The motion to strike is denied.
The following facts are undisputed, unless otherwise noted.
At all times relevant, plaintiff was a state prisoner in the custody of the California Department of Corrections ("CDCR") housed at California State Prison at Sacramento ("CSPSac"). Plaintiff's Undisputed Facts ("PUF"), ¶ 2; Defendant's Undisputed Facts ("DUF"), ¶ 1. At all times relevant, defendant was an employee of the CDCR, and held the position of Correctional Officer assigned to CSP-Sac. PUF, ¶ 3; DUF, ¶ 2.
In January 2000, plaintiff was identified as the "shot caller" for the Sac Town 916 Mob, a Blood street gang. DUF, ¶ 4.
On March 3, 2004, plaintiff filed a civil rights complaint alleging that his due process rights were violated when a correctional officer named S. Vance improperly placed plaintiff's name on a list of suspected Blood gang members, associates, or sympathizers. DUF, ¶ 5. According to the Findings and Recommendations entered by the magistrate judge in the 2004 action, plaintiff's inmate grievance regarding plaintiff's subsequent lockdown was granted in part by a correctional sergeant, who stated he had:
Conducted a review of your Central File and could not find any reference or documentation for your being listed as a member of the blood disruptive group or any other gang/disruptive group. Accordingly, I have directed staff to change your designation on all yard listings as being non-affiliated.
See Hunt v. McKay, 2:04-cv-0435 LKK JFM P, Doc. No. 81 at 5; DUF, ¶ 5, Exhibit C.
In January 2005, plaintiff was identified as a respected affiliate of the Sacramento Bloods. DUF, ¶ 6.
In January 2007, plaintiff was observed participating in a large meeting held by "known gang members from all the disruptive groups." See DUF, ¶ 7, Exhibit B, at 13. According to a memo documenting the meeting authored by Sgt. Rios, plaintiff claimed that he is a non-affiliated inmate and has been informed by me and other yard staff that his association with any validated/self-admitted disruptive group members could be grounds to validate him as a disruptive group member. A review of HUNTS central file reveals that he has no information other than Confidential reports that implicate him as an associate of the Bloods disruptive group.
In February 2007, defendant submitted a general chrono documenting her observations of plaintiff on the yard. DUF, ¶ 10, Ex. A. In particular, defendant noted that she had observed plaintiff "to mainly associate with inmates identified as Sacramento Bloods (Black disruptive group.)" Id.
In April 2007, plaintiff filed a grievance regarding Sgt. Rios' January 2007 memo, and defendant's February 2007 chrono. DUF, ¶ 11; PUF, ¶ 6; Declaration of Michael Hunt ("Hunt Decl."), Doc. No. 36, Ex. E. The grievance was partially granted at the second level, but dismissed at the director's level as untimely. DUF, ¶¶ 12-15.
In July 2007, plaintiff was transferred from B-Facility to C-Facility at CSP-Sac. PUF, ¶ 4; DUF, ¶ 16. Sometime in January 2008, defendant was re-assigned from B-Facility to C-Facility, and later became work supervisor of the C-Facility inmate recycle crew where plaintiff was assigned to work. PUF, ¶ 5; DUF, ¶ 17. As such, defendant was plaintiff's direct supervisor. DUF, ¶ 17.
In September 2007, plaintiff was identified by another inmate as being a member or associate of the Sacramento Bloods disruptive group. DUF, ¶ 9.
On January 25, 2008, plaintiff filed a civil rights complaint against defendant and other staff members at CSP-Sac (Hunt v. Reyes, No. 2:08-cv-0181 MCE CKD), alleging that defendants unlawfully retaliated against plaintiff for filing prison grievances and pursuing civil rights litigation by filing false reports of gang membership in plaintiff's central file. PUF, ¶ 8; DUF, ¶ 24.
On February 7, 2008, a riot incident occurred in C-Facility involving Asian and Black inmates. PUF, ¶ 9; Hunt Decl., Ex. J. Prison officials issued a program memorandum, notifying staff and inmates that all Asian and Black inmates were placed on lockdown status. Id. Plaintiff, who is black, appears on the lockdown list. Id. His affiliation is listed as "Non." Id.
On April 22, 2008, an incident occurred in C-Facility involving Blood and Crip gang members. PUF, ¶ 11; DUF, ¶ 18, Ex. E. Prison officials issued a program memorandum which read that "all inmates identified and/or designated as suspected associates of the disruptive groups Crips, Bloods, and those celled with them, are on lockdown status." Id. Plaintiff's name appeared on the April 22, 2008 lockdown list, where he is designated as Blood gang-affiliated. DUF, ¶ 19, Ex. F; PUF, ¶ 11. Plaintiff lost work, yard and outdoor exercise, visiting, use of the law library, and privileges while on lockdown. PUF, ¶ 11.
On April 25, 2008, plaintiff filed a grievance concerning his lockdown on April 22, 2008, denying that he is a Blood associate or suspected associate. PUF, ¶ 13; DUF, ¶ 20; DUF, Ex. A at 14. On July 1, 2008, in his second level response, the Warden noted that plaintiff's central file included five separate chronos or memoranda identifying plaintiff as associating with known Blood disruptive group members and associates. See DUF, Ex. A at 19. The Warden noted that "there may not be enough information to actually validate you as a Blood; however, the Confidential Chrono and numerous Memorandums can still document your suspected affiliation with the disruptive group 'Bloods', and therefore, will not be changed." Id. On November 17, 2008, the Director denied plaintiff's Director's Level appeal. See DUF, Ex. A at 21.
Plaintiff's April 25, 2008 grievance does not allege that defendant was responsible for placement of plaintiff's name on the lockdown list. DUF, ¶ 21; DUF, Ex. A at 14.*fn2
On June 3, 2008, a riot incident occurred in C-Facility involving Blood gang members. PUF, ¶ 15. Prison officials issued a program memorandum and a list of inmates to be locked down. Id. Plaintiff's name appears on the list and he is designated as Blood gang-affiliated. As a result, plaintiff lost privileges while lockdown segregated. Id.
On July 2, 2008, defendant was notified by Cindy Scholl in the Litigation Office at CSP-Sac that defendant had been named in a lawsuit. DUF, ¶ 25. When defendant discovered that plaintiff had filed the suit, defendant advised Ms. Scholl that she was plaintiff's direct supervisor. DUF, ¶ 26. Defendant explained that she was concerned that if plaintiff were injured on the job, it might appear to be intentional. Id. Ms. Scholl advised defendant that she would take the matter up the chain of command. DUF, Ex. D, Declaration of D. Fields ("Fields Decl."), ¶ 9.
Ms. Scholl advised the Chief Deputy Warden of the situation concerning plaintiff's job assignment, and the Chief Deputy Warden had plaintiff assigned to another position. DUF, ¶ 27; DUF, Ex. H, Declaration Of C. Scholl, ¶¶ 5-6. Plaintiff remained on the recycling crew until August 29, 2008. DUF, ¶ 29. Plaintiff was later reassigned to work in the pantry, but he refused to report for work. DUF, ¶ 30. Plaintiff was later reassigned to the upholstery work center, where he worked until January 23, 2010. Id.
On August 29, 2008, plaintiff filed a grievance alleging that he was fired and reassigned from his recycle crew job in retaliation for exercising his First Amendment rights. PUF, ¶ 19; Hunt Decl., Ex. X, Doc. No. 36-1 at 32.*fn3
On October 27, 2008, plaintiff's grievance was denied at First Level Review. Hunt Decl., Ex. X, Doc. No. 36-1 at 27. The decision reads that "[a]ccording to Officer Fields she feels that she is in a compromising position having one of her assigned workers with pending litigation which could result in a monetary award being awarded to you. An Administrative ...