FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's complaint, filed July 8, 2011, which contains two claims. First, plaintiff claims that defendants at California State Prison in Solano, California ("CSP-Solano") retaliated against him for writing articles critical of prison officials which were published in online publications. Second, plaintiff claims that defendants at California Correctional Center in Susanville, California ("CCC-Susanville") improperly denied plaintiff possession of a typewriter and improperly intercepted and rejected incoming mail. These claims are before the court on plaintiff's motion for partial summary judgment and defendants' motion for summary judgment.
At all times relevant to this action, plaintiff was an inmate housed first at CSPSolano and then at CCC-Susanville. Defendant Haviland was the Warden of CSP-Solano. Defendant Brown was the Associate Warden over units III and IV at CSP-Solano. Defendant Blackwell was a correctional lieutenant at CSP-Solano. Defendant Arthur was a correctional captain over unit III at CSP-Solano. Defendant Rivas was a Correctional Counselor II assigned to Unit IV at CSP-Solano. Defendant Ferguson was a correctional lieutenant at CSP-Solano. Defendant Bradley was a mailroom sergeant at CSP-Solano. Defendant Brooks was a Classification Staff Representative ("CSR") employed by the California Department of Corrections and Rehabilitation (CDCR). Defendant Barnes was the Warden at CCC-Susanville. Finally, defendant Fleshman was employed in the mailroom at CCC.
A. Facts Arising From CSP-Solano
Plaintiff has been an inmate in the CDCR since 1977. (CDCR Inmate Locator.)
For over two decades, plaintiff has "written about prison life for various prison and outside print and on-line publications", including "the Fresno-based Community Alliance newspaper [(CAN)]". Pl.'s Ex. B in Support of Motion for Partial Summary Judgment*fn2 , Declaration of Robert "Boston" Woodard in Support of Ex Parte Application for TRO, filed April 27, 2012 (Woodard Decl.), at ¶¶ 3, 5. , which has a circulation of 10,000. A number of plaintiff's articles can be found online at www.indybay.org. Id. at ¶ 5. Mike Rhodes, editor of the CAN, regularly publishes plaintiff's articles, which get "more feedback . . . than any other columnist that [CAN has]. Perhaps more comments than all the rest of the articles put together." Pl.'s Ex. D, Rhodes Sept. 10, 2009 Test. at 6, 8.
Plaintiff has been incarcerated at CSP-Solano since April 2006. Woodard Decl. at ¶ 1. On May 18, 2008, an article written by plaintiff entitled "Appealing the Impossible" was published online at www.indybay.org. Pl's Ex. E, Woodard Supp. Decl. in Supp. of TRO ("Woodard Supp. Decl.") at ¶ 5. In this article, plaintiff named six CSP-Solano staff members by their first initials and last names. Id.
On April 16, 2009, another article written by plaintiff entitled "Rogue Prison Staff: Breaking All The Rules" ("the article") was published online at www.indybay.org. Woodard Decl. at ¶ 12. In the article, plaintiff identified the following six CSP-Solano staff members -- whom he called "rogue prison staff" -- by their first initials and last names: M. Vieira,
C. Ferguson, R. Ibarra, R. Coker, S. York, and M. Bradley. A complete copy of the article is attached as Exhibit C to the Woodard Declaration.
On July 9, 2009, defendant Ferguson learned about the article. Pl.'s Ex. A, Attachment 1 to Declaration of J. Haviland in Opposition to Plaintiff's Motion for Temporary Restraining Order (Haviland Decl.). After reading the article, defendant Ferguson prepared a General Chrono, which reads as follows:
On Thursday, July 9, 2009, at approximately 0700 hours, I received information relative to a website article (Prisonmovement Weblog). The article indicated that it was authored by inmate Woodard and provided the website . . . . Upon obtaining this information Correctional Sergeant M. Bradley navigated to the website and reviewed its contents. The article in my possession (attached) was the same article open for public or criminal review, located on the website. In the article, Woodard made reference to two interviews I had conducted with him prior to this date. Woodard named me and the names of several other staff members at California State Prison-Solano (SOL). Woodard falsely accuses me of calling someone (Mike Rhodes), who I do not know, an idiot. Woodard makes other accusations toward staff that are believed to not be true. Nevertheless, after reading this article in its entirety, I believe as as long as this inmate has the capability to have this type of article published over the internet, it presents serious threats to my safety as well as the safety of other staff members who's [sic] names were mentioned in Woodard's article. It is my belief that this inmate has created an environment that could prevent me from being able to effectively perform my duties.
Based on the nature of this article, any interactions with this inmate can be deemed as retaliation for his publications. It is my opinion, by Woodard publishing my name over the internet in this matter; it has the potential to solicit threats and or harm towards me and my family, as this internet blog invites bias comments from former inmates and their families. I believe any further dealing with Woodard would result in negative publications to this website, thereby, causing a condition likely to jeopardize my safety and the safety of my family I believe. Id.
Defendant Ferguson brought the article to defendant Bradley's attention. Id. On July 14, 2009, defendant Bradley prepared a General Chrono which reads as follows:
On Thursday, July 9, 2009, at approximately 0700 hours, Lt. C. Ferguson brought to my attention an article authored by Inmate Woodard, B-88207, 23-F-1L. The article referenced Woodard's outlook on his day to day episodes of prison life. In the article, Inmate Woodard makes false accusations towards me implying preempted interviews and disciplinary tactics. I referenced the still available and published web article by Woodard. The content appears to be the same that was shown to me by Lt. Ferguson. This Web article is a Blog utilized to invite others comments. Inmate Woodard is using this blog to manipulate the Public and Staff by referencing Staff names (without my prior approval for publication). In this article I feel Woodard is attempting to slander my name and the badge I swore upon.
I believe that Woodard's avenues of the Inmate Appeal system, (all levels) were not to his satisfaction and lashed out towards me in particular. I believe that Inmate Woodard's writings published on the Internet, jeopardizes my safety and possible [sic] my families [sic] safety for the reason it is a PRISONMOVEMENT BLOG. This blog he chooses to post on have [sic] links to other Prison resistance Web sites, i.e. http://criticalresistance10.blogspot.com/. I understand that Inmate Woodard has first amendment rights, but the format he chooses to author his articles on misleads his audience to believe that I am the sole source of Inmate Disciplinary or the Inmate Appeal System. The comments on this blog come from bias [sic] inmate families and former inmates. With my name published by him negatively, these individuals can utilize people searches to access my personal information and jeopardize my family's safety as well. This publication is another form of manipulation showing Woodard cannot adjust or reason with the authority appointed to maintain the safety and security of the Institution. Inmate Woodard's continued presence at Solano would allow him the ability to interact with me possibly gaining grounds for more false allegations and possibly retaliation toward myself or my family.
I am requesting that he be transferred to another appropriate Level II Institution where he can continue to program.
Together, defendants Ferguson and Bradley brought the article to the attention of defendant Arthur. Pl.'s Ex. G, Arthur Dep. 14:23--15:5. Defendant Ferguson also brought the article to the attention of defendant Brown. Defs.' Ex. E, Brown Dep. at 40:19-25. On July 9, 2009, defendant Blackwell signed an Administrative Segregation Unit Placement Notice ("Ad Seg Notice") providing that plaintiff would be placed in administrative segregation. Haviland Decl., Attach. 2. The notice reads:
On July 9, 2009, you, Inmate Woodard, B-88207, are being removed from Facility IV General Population pending investigation into you publishing information on the internet that identifies CSP-Solano staff members by name. Therefore, you are being removed from Facility IV General Population (GP) and placed in Administrative Segregation (Ad-Seg). Based on this information, you are deemed a threat to the Level II General Population and the safety and security of this institution. You will remain in Ad/Seg pending Administrative Review for your appropriate program and housing needs. Per CCR 3272, your Custody level is being increased to Maximum to facilitate this move.
Id. Under Part A of the Ad-Seg Notice, which sets forth four possible reasons for an inmate's placement in Ad-Seg, there are check marks next to "presents an immediate threat to the safety of self or others" and "endangers institution security." Id. It is "most likely" that defendant Arthur directed defendant Blackwell to place plaintiff in administrative segregation. Pl.'s Ex. G, Arthur Dep. 34:25--35:8. Defendants Rivas and Brown signed the Ad Seg Notice on July 10, 2009. Id. Haviland Decl., Attach. 2.
On July 10, 2009, defendant Rivas met with plaintiff to discuss plaintiff's placement in Ad-Seg. See Ex. F to Declaration of Michael G. Lee (Decl. of Lee),Rivas Dep. 49:19--50:18. Following this meeting, Rivas approved plaintiff's continued detention in administrative segregation pending a hearing before the Institution Classification Committee ("ICC"). Id.; see also Attach. 2 to Haviland Decl. On July 16, 2009, plaintiff appeared before the ICC for a review of his housing placement. Haviland Decl. ¶ 5 and Attach. 3. Also present at the ICC Hearing were defendants Haviland and Brown, among others. Id., Attach. 3. At the hearing, defendant Haviland told plaintiff that plaintiff was going to be placed for transfer. Pl.'s Ex. D, Haviland Sept. 10, 2009 Test. at 111:22-24. The form CDC 128-G written following the ICC hearing states that recommendation for transfer was "[b]ased on the nature of the article written and the fact that it appears to specifically target a staff member at Solano for slander or written retaliation." Attach. 3 to Haviland Decl. Defendant Haviland subsequently testified that the decision to transfer plaintiff was "based on staff's safety concerns, not because he had violated any rule or regulation." Pl.'s Ex. D, Haviland Sept. 10, 2009 Test. 120:3-5.
At the ICC hearing, plaintiff stated that he did not want to transfer but if he had to be transferred he requested transfer to San Quentin State Prison (San Quentin). Attach. 3 to Haviland Decl. However, San Quentin was "closed for intake due to medical (possible swine flu)" so the ICC did not recommend transfer to San Quentin. Id.
The only measure considered by defendants in response to their concerns about the article was transferring plaintiff to another institution. Id. at. 151:17-25. Defendants did not consider transferring plaintiff to another yard at CSP-Solano because all of the yards at CSPSolano "commingle." See Haviland Sept. 10, 2009 Test. 125:13-17. They did, however, eventually provide help to ...