United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S. § 1983. Pending before the court is defendants November 6, 2013 motion for summary judgment, which has been fully briefed. See ECF Nos. 121, 138, 140. Also before the court is plaintiff's motion for appointment of counsel and motion to stay filed May 5, 2014. ECF No. 142.
MOTION TO STAY
Plaintiff brought this motion to stay after filing his opposition to defendants' motion for summary judgment. Plaintiff has repeatedly complained that he has been obstructed at various prisons in his efforts to litigate this and other pending cases. See, e.g., ECF Nos. 10, 19, 33-34, 40, 84, 87, 93. The court has extended itself to meet these frequent complaints, requiring responses to plaintiff's allegations (see ECF Nos. 43, 52, 85, 92), extending plaintiff's deadlines (see ECF Nos. 11, 13, 38, 60, 98, 125, 127), and providing copies of documents (see ECF Nos. 38, 42). Plaintiff has repeatedly sought preliminary injunctive relief and court orders related to the alleged ongoing obstruction, seeking to obtain transfer (ECF No. 20, 22, 24, 28, 31, 40, 45, 49); a specific housing assignment (ECF No. 84); return of legal property (ECF No. 84, 87, 93); law library access, copies of documents, and legal supplies (ECF Nos. 33, 37, 100, 102, 132); specific medical care including pain medication (ECF Nos. 40, 41); a general prohibition on further obstruction (ECF Nos. 34, 95); and an independent investigation of plaintiff's allegations of obstruction (ECF No. 73). All such requests (other than some requests for documents) have been denied, most often as unsupported. See ECF Nos. 21, 23, 27, 35, 36, 42, 55, 71, 85, 92 (specifically finding that plaintiff's complaints of being obstructed in the prosecution of this action have not been substantiated), 98, 113, 134.
In his most recent filing, plaintiff avers that in October of 2013 his legal work, exhibits and evidence were lost or destroyed by prison staff and that he has been denied law library access. ECF No. 142 at 1. Plaintiff references four pending cases, including the instant one, which have been impacted. He also describes an incident that is alleged to have occurred in April of 2014, in which prison staff confiscated his legal material, assaulted him, knocked out his teeth and pepper-sprayed him because he asked to speak to the captain about his legal deadline of April 13, 2014 in the instant case. Plaintiff states that he had (and presumably lost) over 20 declarations which supported his claims in this action that his civil cases are being systematically sabotaged. Id. at 1-2. Plaintiff submits a number of inmate declarations and statements describing the April 2014 incident,  but does not specifically identify or describe materials necessary to oppose summary judgment in this case that were lost or destroyed.
"The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket." Clinton v. Jones , 520 U.S. 681, 707 (1997) (citing Landis v. North American Co. , 299 U.S. 248, 254 (1936)). "The proponent of the stay bears the burden of establishing its need." Id. at 708. When ruling on a request to stay proceedings, the following factors are considered: (1) "the possible damage which may result from the granting of a stay"; (2) "the hardship or inequity which a party may suffer in being required to go forward, " and (3) "the orderly course of justice, measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay." Filtrol Corp. v. Kelleher , 467 F.2d 242, 244 (9th Cir.1972) (quoting CMAX, Inc. v. Hall , 300 F.2d 265, 268 (9th Cir.1962, in turn, citing Landis, supra, at 254-55.)). The court, in considering a stay, should "balance the length of any stay against the strength of the justification given for it." Young v. I.N.S. , 208 F.3d 1116, 1119 (9th Cir. 2000).
Plaintiff's allegations regarding the April 2014 use of force are very serious and very troubling. They might support a separate lawsuit. They do not, however, relate to the claims at issue in this lawsuit. Nor are they germane to the adjudication of the present dispositive motion. The court finds that a stay of this action is unwarranted, primarily because plaintiff has not carried his burden of demonstrating the need for a stay. A stay should not be imposed on the basis of conclusory allegations that non-parties are seeking to impede plaintiff's pursuit of this action. The All Writs Act, 28 U.S.C § 1651, provides authority for this court to inquire into any such interference, as this court has done on prior occasions when appropriate. Here, although plaintiff provides witness declarations to support his excessive force allegations, he has not produced concrete evidence that his ability to prosecute this lawsuit has been impeded by the events of October 2013 or April 2014. Conclusory allegations of interference do not support a stay or require further inquiry at this time.
Plaintiff submitted his opposition to the pending motion for summary judgment on April 6, 2014 (see ECF No. 142 at 2), prior to the alleged assault. Accordingly, the assault cannot have interfered with his ability to oppose the motion. Moreover, although plaintiff states that prison staff confiscated or destroyed 20 declarations, he does not explain how (if at all) any of those declarations related to the summary judgment motion. He fails to specify whose affidavits were destroyed and what they said. In the opposition itself, plaintiff demands that the court order that he be allowed fifty (50) non-collect phone calls and direct all of his witnesses to file declarations and affidavits on his behalf. ECF No. 138 at 120. Plaintiff misunderstands the function of the court. The court cannot act as plaintiff's counsel. It is plaintiff, who has brought this case, who is responsible for compiling the evidence he needs to proceed. In other abbreviated declarations attached to the opposition, plaintiff names staff and inmate witnesses who he states have sworn to testify on his behalf but he does not allege that they have ever provided him with any affidavits or were prevented from doing so. Id. at 122. This record does not support a stay of the proceedings. Plaintiff has not established that the interests of justice weigh against adjudication of the fully-briefed summary judgment motion or otherwise require a stay.
Plaintiff also contends that he cannot proceed because he is undergoing medical treatment. While the court is mindful of the inconvenience to plaintiff of undergoing medical treatment while pursuing this action, this is hardly a unique circumstance. While plaintiff may continue to seek discrete extensions of time related to his medical condition or any other circumstance that interferes with his ability to meet a particular deadline, he has not justified a blanket stay of proceedings.
Defendants' summary judgment motion was filed on November 6, 2013, and plaintiff received extensions of time that gave him a total of five months to oppose the motion. See ECF No. 125, 127, 133. He has done so. ECF No. 138. Moreover, in pro se prisoner cases the court does not rely on a plaintiff's opposition alone, or strictly apply the rules for opposing motions brought under Rule 56 of the Federal Rules of Civil Procedure or with the Local Rules. See, e.g., Thomas v. Ponder , 611 F.3d 1144, 1150 (9th Cir. 2010) (cautioning district courts not to apply, inter alia, "summary judgment rules strictly" to prisoner pro se plaintiffs); McElyea v. Babbitt , 833 F.2d 196, 197 (9th Cir. 1987) (per curiam) (a verified complaint may be considered in opposition to summary judgment if "it is based on personal knowledge and sets forth specific facts admissible in evidence."). In this case the court will consider the entire record of the case, including potentially relevant exhibits that plaintiff has submitted with other filings including previous, now-superseded versions of the complaint. See Fraser v. Goodale , 342 F.3d 1032, 1036 (9th Cir. 2003) (evidence which could be made admissible at trial may be considered on summary judgment); see also Aholelei v. Hawaii Dept.of Public Safety , 220 Fed.Appx. 670 *1(9th Cir. 2007) (district court abused its discretion in not considering plaintiff's evidence at summary judgment, "which consisted primarily of litigation and administrative documents involving another prison and letters from other prisoners" which evidence could be made admissible at trial through the other inmates' testimony at trial). In these circumstances, the court finds that all factors weigh in favor of proceeding with this action, and will recommend plaintiff's motion for a stay be denied.
REQUEST FOR APPOINTMENT OF COUNSEL
Plaintiff again requests that the court appoint counsel. District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court , 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer , 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright , 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether "exceptional circumstances" exist, the court must consider plaintiff's likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez , 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id . Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that warrant a request for voluntary assistance of counsel.
Having considered the factors under Palmer, the court finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time. Plaintiff has been able to set forth colorable claims in his first amended complaint while proceeding pro se, and has opposed defendants' motion for summary judgment. Plaintiff's most recent request for appointment of counsel is denied.
Plaintiff proceeds against twelve defendants. The following claims were found cognizable as to the now-remaining defendants upon screening of the first amended complaint: (1) plaintiff's claim of retaliation against defendants Torres,  Norgaard, and Wright, for placing and retaining plaintiff in the SHU from December 31, 2006 to July 28, 2007 in retaliation for having filed a grievance against defendant Torres; (2) a claim of retaliation against defendant Stallcup for her alleged actions following the filing of a grievance by plaintiff; (3) a claim of an Eighth Amendment violation by defendants Vasquez, Medrano and Barajas for use of excessive force, and a realted First Amendment claim of retaliation, regarding a pepper-spraying incident and its aftermath; (4) a claim of retaliation against defendants Garcia, Lundy, Campbell, Franco and Prior, regarding plaintiff's complaints about having been pepper-sprayed. See ECF No. 35 (Order adopting findings and recommendations at ECF No. 27); see also ECF No. 25 (First Amended Complaint). Plaintiff seeks money damages.
MOTION FOR SUMMARY JUDGMENT
Defendants Barajas, Campbell, Franco, Garcia, Torres, Lundy, Medrano, Norgaard, Prior, Stallcup, Vasquez, and Wright move for summary judgment on the grounds that they did not violate plaintiff's rights under the First and Eighth Amendments, contending that (1) Torres, Norgaard, and Wright did not place plaintiff in administrative segregation because of a complaint he filed against defendant Torres, and they would have taken the same action regardless of any complaint he filed; (2) defendant Stallcup did not retaliate against plaintiff by recommending a reduction in his level of mental-health care, and she would have taken the same action regardless of any complaint he filed; (3) defendants Barajas, Medrano, and Vasquez did not use any force on plaintiff on February 4, 2011, and their use of force against others was necessary to restore order; (4) defendants Barajas, Medrano, and Vasquez did not deny plaintiff medical care on February 4, 2011, in retaliation for his assertion that he would report their use of force; (5) defendants Campbell, Franco, Garcia, Lundy, and Prior did not place plaintiff in administrative segregation (ad seg) in retaliation for his having filed a complaint about the events of February 4, 2011, but because of his allegations that staff had threatened him; and (6) all defendants are entitled to qualified immunity. ECF No. 121 (notice of motion and motion for summary judgment).
I. Legal Standard for Rule 56 Motions
Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Securities Litigation , 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case." Oracle Corp. , 627 F.3d at 387 (citing Celotex , 477 U.S. at 325.); see also Fed.R.Civ.P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex , 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id . In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment... is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed.R.Civ.P. 56(c)(1); Matsushita , 475 U.S. at 586 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assoc. , 809 F.2d 626, 630 (9th Cir.1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc. , 818 F.2d 1433, 1436 (9th Cir.1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv. , 809 F.2d at 631. Thus, the "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita , 475 U.S. at 587 (citations omitted).
"In evaluating the evidence to determine whether there is a genuine issue of fact, " the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls v. Central Costa County Transit Authority , 653 F.3d 963, 966 (9th Cir.2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines , 602 F.Supp. 1224, 1244-45 (E.D.Cal.1985), aff'd, 810 F.2d 898 , 902 (9th Cir.1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Matsushita , 475 U.S. at 587 (citation omitted).
In applying these rules, district courts must "construe liberally motion papers and pleadings filed by pro se inmates and... avoid applying summary judgment rules strictly." Thomas v. Ponder , 611 F.3d at 1150. However, "[if] a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, as required by Rule 56(c), the court may:... consider the fact undisputed for purposes of the motion...." Fed.R.Civ.P. 56(e)(2). Plaintiff was provided notice of the requirements for opposing a motion pursuant to Rule 56, as required by Rand v. Rowland , 154 F.3d 952, 957 (9th Cir. 1998) (en banc), Klingele v. Eikenberry , 849 F.2d 409 (9th Cir.1988), and Woods v. Carey , 684 F.3d 934 (9th Cir. 2012). ECF Nos. 53, 122.
II. Plaintiff's Retaliation Claim Against Torres, Norgaard and Wright
Plaintiff claims that defendants Torres, Norgaard, and Wright placed and retained him in the SHU from December 31, 2006 to July 28, 2007 in retaliation for plaintiff's previous grievance against Torres. First Amended Complaint (FAC), ECF No. 25 at 3.
Defendant Torres contends that plaintiff was placed in administrative segregation (ad seg) after plaintiff threatened her, and was thereafter retained in ad seg while related disciplinary proceedings were pending. MSJ, ECF No. 121-1 at 2.
A. Legal Principles Governing First Amendment Retaliation Claim
Inmates have a right to be free from the filing of false disciplinary charges in retaliation for the exercise of constitutionally protected rights. Pratt v. Rowland , 65 F.3d 802, 807 (9th Cir. 1995); Schroeder v. McDonald , 55 F.3d 454, 461 (9th Cir. 1995); Rizzo v. Dawson , 778 F.2d 527, 532 (9th Cir. 1985). The Ninth Circuit treats the right to file a prison grievance as a constitutionally protected First Amendment right. Brodheim v. Cry , 484 F.3d 1262, 1269 (9th Cir. 2009) (citing Rhodes v. Robinson , 408 F.3d 559, 566 (9th Cir. 2005)); Bruce v. Ylst , 351 F.3d 1283, 1288 (9th Cir. 2003); see also, Hines v. Gomez , 108 F.3d 265 (9th Cir. 1997); Hines v. Gomez , 853 F.Supp. 329 (N.D. Cal. 1994) (finding that the right to utilize a prison grievance procedure is a constitutionally protected right) (cited with approval in Bradley v. Hall , 64 F.3d 1276, 1279 (9th Cir. 1995)); Graham v. Henderson , 89 F.3d 75 (2nd Cir. 1996) (retaliation for pursuing a grievance violates the right to petition government for redress of grievances as guaranteed by the First and Fourteenth Amendments); Jones v. Coughlin , 45 F.3d 677, 679-80 (2nd Cir. 1995) (right not to be subjected to false misconduct charges as retaliation for filing prison grievance); Sprouse v. Babcock , 870 F.2d 450, 452 (8th Cir. 1989) (filing disciplinary actionable if done in retaliation for filing inmate grievances); Franco v. Kelly , 854 F.2d 584, 589 (2nd Cir. 1988) ("Intentional obstruction of a prisoner's right to seek redress of grievances is precisely the sort of oppression that section 1983 is intended to remedy" (alterations and citation omitted)); Cale v. Johnson , 861 F.2d 943 (6th Cir. 1988) (false disciplinary filed in retaliation for complaint about food actionable).
In order to state a retaliation claim, a plaintiff must plead facts which suggest that retaliation for the exercise of protected conduct was the "substantial" or "motivating" factor behind the defendant's conduct. See Soranno's Gasco, Inc. v. Morgan , 874 F.2d 1310, 1314 (9th Cir. 1989). The plaintiff must also plead facts which suggest an absence of legitimate correctional goals for the conduct he contends was retaliatory. Pratt at 806 (citing Rizzo at 532). Verbal harassment alone is insufficient to state a claim. See Oltarzewski v. Ruggiero , 830 F.2d 136, 139 (9th Cir. 1987). However, even threats of bodily injury are insufficient to state a claim, because "a mere naked threat" is not the equivalent of doing the act itself. See Gaut v. Sunn , 810 F.2d 923, 925 (9th Cir. 1987). Mere conclusions of hypothetical retaliation will not suffice, a prisoner must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois , 922 F.2d 560, 562 (n. 1) (10th Cir. 1990).
To state a claim for First Amendment retaliation, a prisoner must allege the following five elements: (1) a state actor took an adverse action against him (2) because of (3) the prisoner's protected conduct, and that the action taken against him (4) chilled the prisoner's exercise of his First Amendment Rights and (5) did not reasonably advance a legitimate correctional goal.
Silva v. Di Vittorio , 658 F.3d 1090, 1104 (9th Cir. 2011).
B. Undisputed Facts
The court finds the following facts to be undisputed:
In December 2006, plaintiff was housed in cell 131 of Building 4 on Facility D at High Desert State Prison (HDSP). Motion for Summary Judgment (MSJ), Declaration of defendant S. Torres, ECF No. 123-6, ¶¶ 2-3.
Defendant Torres was a Building 4 floor officer whose duties included supervising and escorting Building 4 inmates and conducting random cell searches in the housing unit. Hazelton Dec. ¶ 2.
Defendant Torres and her partner conducted a search of plaintiff's cell on December 31, 2006, during which plaintiff was removed from his cell and after which he and his cellmate were returned to the cell. Hazelton Dec. ¶¶ 4-5.
According to Torres, during the search plaintiff shouted at the officers, expressing his disagreement with the search. Hazelton Dec. ¶ 4.
On January 1, 2007, plaintiff filed an inmate appeal/staff complaint against Torres, complaining that on Dec. 31, 2006, she had "lied" and been "very disrespectful and unprofessional, " had used a racial epithet against him, had said she would make him "suck her dick, " would pay plaintiff's cellmate to force plaintiff to "suck his dick" and would "kick [his] ass." The inmate appeal states that she had plaintiff placed in ad seg for threatening her but that he had in no way done so. Opposition (Opp.), ECF No. 138 at 19,  HDSP-S log no. 07-0083.
Plaintiff's grievance was processed as a staff complaint, plaintiff was interviewed, witnesses were questioned, the results were kept confidential as a confidential personnel matter and the appeal was ultimately denied, on July 26, 2007, at the third level. Opp., ECF No. 138, HDSP-S log no. 07-0083, at 19-26.
Defendant Torres signed a typed Rules Violation Report (RVR) on January 8, 2007, charging plaintiff with obstructing a peace officer by means of threat and stating that on December 31, 2006 at about 10:50 a.m., she had "just completed conducting a cell search of" plaintiff's cell when "he began to yell obscenities and threatened me by saying, Let me out of this cell and I'll kick yo ass, bitch! Suck my dick!' I took this as a threat to my safety." ECF 123-6, Hazelton Dec. ¶¶ 6, 8; MSJ, Exhibit A, Rules Violation Report (RVR), Log No. FD-06-12-066, ECF No. 123 at 4.
Defendant Torres declares that she informed her supervisor of plaintiff's threats immediately and plaintiff was sent to administrative segregation on December 31, 2006. Hazelton Dec. ¶ 7; ECF No. 123, Ex. A at 17, Administrative Segregation Placement Notice, dated Dec. 31, 2006, attached to, ECF No. 123 at ¶ 2, Declaration of Diana Esquivel.
The placement notice states that plaintiff was being placed in ad seg for "threats toward staff, " further stating, in part, that plaintiff had made the statement "I am going to kick your ass when you open this door, '" which "was perceived as a threat toward staff" for which he was deemed "a threat to the safety and security of this institution." It was stated that plaintiff would remain in ad seg "pending administrative review for your program/housing needs." ECF No. 123 at 17.
Defendant Wright's signature is on the placement notice identifying himself as the correctional administrator who reviewed it on January 2, 2007. Id.
On January 4, 2007, plaintiff appeared before the classification committee for his initial review after his ad seg placement. Defendant Counselor Norgaard and defendant Facility Captain/Acting Associate Warden Wright were members of the committee. ECF No. 123-9, Declaration of M. Norgaard, ¶¶ 2-3; ECF No. 123-13, Declaration of M.Wright, ¶¶ 2-4; ECF No. 123, Ex. A at 18, Classification Chrono, dated Jan. 4, 2007.
The committee recommended keeping plaintiff in ad seg pending because the RVR for threatening staff was pending. Another classification hearing was scheduled for April 5, 2007. The Classification Staff Representative (CSR), on January 23, 2007, agreed with the committee's recommendation, ordering that plaintiff remain in ad seg for ninety days and to return to CSR for a status update "no later than 4/4/2007." Norgaard Dec. ¶¶ 4-6; Wright Dec. ¶¶ 5-7; Classification Chrono, dated Jan. 4, 2007; ECF No. 123, Ex. A at 19, CSR Action Chrono, dated Jan. 23, 2007.
On February 7, 2007, plaintiff was found guilty based on the RVR, Obstructing a P/O by the means of Threat, issued by defendant Torres. ECF No. 123-6, Hazelton Dec. ¶ 10; ECF No. 123 at 4-9, Ex. A, RVR, Log No. FD-06-12-066.
The RVR shows defendant Wright reviewed the report of the hearing on February 16, 2007 and non-party R. K. Wong signed off on it as chief disciplinary officer on February 20, 2007. ECF No. 123 at 1.
Defendants Norgaard and Wright were members of the classification committee before whom plaintiff appeared on April 5, 2007. Norgaard and Wright declare the committee recommended imposing a nine-month term in the security housing unit (SHU) based on the prison disciplinary guilty finding and transferring plaintiff to a prison with a SHU facility. ECF No. 123-9, Norgaard Dec. ¶ 8; ECF No. 123-13, Wright Dec. ¶ 8; ECF No. 123 at 20, Ex. A, Classification Chrono, dated April 5, 2007.
The April 5 classification chrono states that the committee acted to "[a]ssess and impose a 9-month Aggravated SHU Term" based on the Dec. 31, 2006 RVR, also noting that plaintiff was placed in ad seg "on 12/31/06 for threats toward staff, " that he "was found guilty of SHU-able RVR Log # FD-06-12-066 dated 12/31/06 for Obstructing a Peace Officer by means of a Threat...." and that "[t]he SHU term was not mitigated due to prior disciplinary behavior and aggravated 4-months based upon" an October 2000 RVR log #S/XX-XX-XXXX, charging plaintiff with "threat to kill or assault a non-inmate." It was also noted that his credit loss was consistent with "a division D' offense." ECF No. 123 at 20.
In a note on the subject RVR, dated April 5, 2007, the CDO, R.K. Wong, had noted: "per ICC review[:] modify specific charge to "threatening a P.O." Div E offense 60 days LOC [sic] -" ECF No. 123 at 4.
On April 24, 2007, the CSR rejected the committee's recommendation on the ground that plaintiff was found guilty of a charge different from that originally charged in the RVR. The CSR referred the matter back to the Chief Disciplinary Officer for further review and disposition. Norgaard Dec. ¶ 9; Wright Dec. ¶ 10; ECF No. 123 at 21, Ex. A, CSR Action Chrono, dated April 24, 2007.
The April 24, 2007 CSR Action Chrono deferral states:
The case was referred for a SHU Term audit relative to the RVR of 12/31/2006 that originally charged and found the inmate [sic] with Obstructing a P/O by the means of Threat. The RVR was adjudicated on 2/7/07 and sign [sic] off by a ...