United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 36
JAMES DONATO, District Judge.
Plaintiff, a state prisoner proceeding pro se, has brought a civil rights action under 42 U.S.C. § 1983. Plaintiff alleges that defendant correctional officer Brewer retaliated against plaintiff for filing a grievance by referring him to mental health services and writing him up for torn clothing, and defendant correctional officer Mendenhall violated plaintiff's Eighth Amendment rights by loudly stating that plaintiff was gay which placed him in danger. Plaintiff seeks declaratory, punitive, and compensatory relief. Defendants have filed a motion to dismiss and a motion for summary judgment. The motion for summary judgment is granted.
I. MOTION FOR SUMMARY JUDGMENT
Plaintiff was incarcerated at Pelican Bay State Prison ("PBSP"). Motion for Summary Judgment ("MSJ") at 4. Defendants Mendenhall and Brewer were correctional officers at PBSP during the relevant time. Id. On November 26, 2011, Mendenhall was delivering mail in plaintiff's section. Decl. Mendenhall ¶ 2. The parties agree that on that date Mendenhall stated to plaintiff that he looked "gray". Id.; Compl. at 6. Mendenhall contends she observed plaintiff's hair getting gray and stated, "wow [plaintiff] you are starting show some gray. If you are not careful, you are going to start getting old like me. It's a good thing that me and Miss Clairol [the hair coloring product] are best friends." Id. Mendenhall states that plaintiff asked if she called him gay and she responded, "No, I called you gray." Id. She then observed plaintiff laugh and she walked away. Id. Plaintiff states that Mendenhall awkwardly attempted to engage him in conversation at this time. Compl. at 5-6.
After this exchange, plaintiff states that Mendenhall returned several hours later for the evening inmate count and stated, "You are gay." Compl. at 6. Mendenhall denies making this comment. Plaintiff alleges that a few days later on December 3, 2011, Mendenhall was again working in plaintiff's section and loudly stated, "Yeah your gay! I know you are!" Compl. at 7. Plaintiff states that other inmates heard the exchange and he has included an affidavit from another inmate. Opposition, Ex. A. Plaintiff alleges that Mendenhall made this comment after he refused to provide information regarding an upcoming hunger strike. Compl. at 6-7. Mendenhall denies asking plaintiff about a hunger strike or making any comments about his sexuality. Decl. Mendenhall ¶ 3.
Plaintiff alleges that other inmates made inappropriate remarks and threatened to harm him as a result of Mendenhall's statements. Opposition at 4. However, there are no allegations that plaintiff was ever harmed as a result of this or that plaintiff requested a transfer to a different prison, a transfer to a different section of PBSP, or to be placed in protective custody.
On December 4, 2011, Mendenhall conducted a random search of plaintiff's cell for contraband and confiscated state-issued food, paper towels, plastic bags, string, altered ear buds and nonprescription medications from the clinic. Decl. Mendenhall ¶ 3. These objects were confiscated because they can be used to make weapons or alcohol. Id. ¶ 4.
On December 5, 2011, plaintiff was upset and approached defendant correctional officer Brewer to speak with him about the search of his cell and removal of certain items. Decl. Brewer ¶ 2. Brewer responded that the day before had been his day off and he had no control over what cells were searched on his day off. Id. Brewer noted that plaintiff seemed agitated and then plaintiff abruptly returned to his cell. Id. Brewer wrote a note to other staff that stated plaintiff was acting paranoid, agitated and irrational. Decl. Brewer ¶ 3. Later the same day, Brewer noticed that plaintiff seemed to act in a withdrawn and despondent manner. Id. ¶ 4. On December 6, 2011, Brewer completed a referral for mental health services regarding plaintiff. Id. When Brewer made the mental health referral he was not aware that plaintiff had filed a grievance against Mendenhall. Id. ¶ 5.
Several months later, on May 1, 2012, Brewer searched plaintiff's cell as part of a random search. Id. ¶ 7. Brewer discovered multiple pieces of a torn state-issued shirt, which is a violation of California Prison Regulations as a destruction of property. Id. Inmates tear up clothing or mattresses so they can make string, commonly known as "fish-lines, " to pass contraband between cells. Id. ¶ 8. Brewer states that referring plaintiff to mental health services and writing him up for the torn shirt were not in retaliation for the grievance against Mendenhall. Id. ¶ 10. Plaintiff argues that Brewer took these actions in retaliation for plaintiff's protected conduct.
Standard of Review
Summary judgment is proper where the pleadings, discovery, and affidavits show there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id.
A court may grant summary judgment "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[, ]... since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Id. The burden then shifts to the nonmoving party to "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" See id. at 324 (citing Fed.R.Civ.P. 56(e) (amended 2010)).
For purposes of summary judgment, the court views the evidence in the light most favorable to the nonmoving party; if the evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the court must assume the truth of the evidence submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect ...