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Morman v. Dyer

United States District Court, N.D. California

May 29, 2018

MICHAEL DYER, et al., Defendants.


          SUSAN ILLSTON, United States District Judge

         In this pro se prisoner's civil rights action under 42 U.S.C. § 1983, Wade Anthony Morman claims that several defendants retaliated against him and others denied him due process. Defendants now move for summary judgment on the merits of Morman's claims and on their defense of qualified immunity, as well as on the ground that Morman did not exhaust administrative remedies for his claims against several defendants. Morman opposes the motion. For the reasons discussed below, defendants' motion for summary judgment will be granted in part and denied in part. Specifically, the motion will be granted as to everything except the retaliation claim against defendants Lee and Heller for the September 14, 2011 search, and their defense of qualified immunity to that claim. The case will be referred to the court's pro se prisoner mediation program.


         The court found cognizable three claims in the amended complaint: a claim that four defendants conducted a retaliatory search on September 14, 2011 (Claim 6); a claim that three defendants retaliated against Morman on September 28, 2011 (Claim 7); and a claim that two defendants denied Morman his right to due process in connection with Morman's placement in administrative segregation on or about December 1, 2011 (Claim 9). See Docket No. 8. Several other claims were dismissed. Id. Although Morman continues to argue the merits of some dismissed claims in his opposition to the motion for summary judgment, the court will refer to the incidents in the dismissed claims only as necessary to provide background for the three claims that it found cognizable.

         A. The Claims

         The following facts are undisputed unless otherwise noted:

         Morman was an inmate at the Correctional Training Facility in Soledad in August and September 2011. In or before December 2011, he was transferred to San Quentin State Prison.

         1. The September 14, 2011 Search

         Correctional staff at the Correctional Training Facility routinely conducted searches of inmates and their property for contraband. Some of the searches were random. See Docket No. 17-4 at 2. Searches of inmates' cells, property, and bodies were authorized by California Code of Regulations, title 15, § 3287. The searches included searches of written materials that could contain contraband. Docket No. 17-4 at 2. Correctional officers conducted random searches to identify and confiscate contraband, and to discourage inmates from bringing more contraband into the facility. Id.; Docket No. 17-5 at 2. Items that are not approved or accounted for are disallowed under California regulations. See Cal. Code Regs. tit. 15, §§ 3190-3192.

         In late August 2011, Morman verbally objected to correctional staff that he had been subjected to too many searches by correctional officer (“C/O”) Quintero and had been given a “wedgy” during one of those searches. Docket No. 7 at 5. Morman states that C/O Heller then told Morman to “‘shut the fuck up; pick up your shit and get out of here!, '” and that Morman responded that it “was not necessary to use such tone and profanity against the plaintiff and that it was in violation of prison policy.” Id. at 6.[1] At the time, C/O Michael Dyer said to Morman and correctional staff, including Heller and Lee, “‘I didn't hear no profanity, '” and C/O Dyer “sarcastically ask[ed] Heller and Lee, “‘did you hear any profanity?'” Id. at 7. Morman accused Dyer of siding with his officers and pretending not to notice their lack of respect for Morman. Id.

         In the several weeks following that late August 2011 search, Lee directed several negative comments toward Morman: While Morman was walking and talking to another inmate on August 25, 2011, C/O Lee stared at Morman and ordered him to “shut the fuck up and keep walking!'” Id. at 8. On or about August 25, 2011, C/O Lee “intruded into Plaintiff's consideration with another inmate” and said that he would not stop another inmate from beating up Morman; insulted Morman because of his sex offenses; and rushed to within two feet of Morman. Id. at 9. On or about September 2, 2011, C/O Lee told Morman that he was staring at him because Morman was ugly. Id. at 10. Although claims based on these incidents have been dismissed for the reasons stated in the order of partial dismissal and service (Docket No. 8), the incidents described in this paragraph are recounted to provide a backdrop for what occurred on September 14, 2011.

         On or about September 14, 2011, C/O Heller selected Morman from among numerous inmates for a search of his person and property, and said to other staff members, “we're harassing him!” Docket No. 7 at 11. C/O Lee “laugh[ed] gloatingly” and searched Morman's property. Id. Lee “shielded his search” of Morman's property so that Morman could not see it. Id. Morman thinks (but does not explain how he could have seen since the search was shielded from his view) that Lee read Morman's legal property, which included written grievances. Id. at 11. C/O Lee also took some personal property and damaged other personal property. Id. at 11-12. C/O Taylor encouraged C/O Lavelle to confiscate art pastels found during the search and verbally insulted Morman. Id. at 12. C/O Lavelle confiscated the art pastels because they were not included on the property card that detailed the inmate's authorized possessions. Docket No. 17-5 at 2. Lavelle provided a property receipt for the confiscated pastels and marked that they had been confiscated because they were “unauthorized.” Id. at 5. Morman presents no evidence that the art pastels were not contraband.

         Morman states that the defendants' actions were taken because of (a) Morman's August 2011 complaints about the searches and correctional officers, (b) Morman's convictions for sex offenses, and (c) “information included in plaintiff's prison record.” Docket No. 7 at 11.[2]

         2. September 28, 2011 Search and Hearing on CDCR-22s:

         When inmates are subject to movement within a prison outside of the regular schedule, such as when they are taken to an appointment or interview, they must be escorted by staff. Docket No. 17-4 at 2; Cal. Code Regs. tit. 15, § 3274(b)(2) (“If unscheduled movement of an inmate is necessary, such movement shall not take place unless the inmate is escorted by staff, or a pass has been issued by staff authorizing the movement.”). C/O Lee states that he “regularly searched for contraband in connection with the escort to ensure [his] own safety, the safety of other officers, and the safety of other inmates during the escort. [He] also secured inmates in holding cells to ensure the safety of officers and inmates.” Docket No. 17-4 at 3.

         Sometime before September 28, Morman filled out several CDCR-22 forms. The CDCR-22 form is an “inmate/parolee request for interview, item or service, ” and is described in California Code of Regulations, title 15, § 3086. That regulation provides: “Inmates and parolees may request interviews with staff and/or request items and services via a written request process. The objectives of timely resolution of routine matters through an effective and non-conflictive communication process shall be facilitated by the practices set forth in this article.” Id. at § 3086(a). The CDCR-22 form process works separately from the inmate appeal process that is commenced with the filing of a CDCR-602 form. See Id. at § 3086(e)(2).

         Morman was subjected to a search on September 28, 2011 by C/O Lavelle. Docket No. 7 at 14. C/O Lee ordered Morman to go to a job location in the medical facility. Id. At the medical facility, C/O Lee gathered copies of three CDCR-22 forms that Morman had written about the conduct of Lee, Dyer and other officers. Lee ordered Morman to go upstairs with him to have a hearing on the CDCR-22 forms. Id. at 15. Morman refused, saying he was afraid to be alone with Lee and wanted the grievances heard by a supervisor or to be responded to in writing. Id. C/O Lee threatened to drag Morman up the stairs. Id. Pursuant to sergeant Dyer's orders, C/O Lee handcuffed Morman, took him upstairs, and put him in a holding cell. During the escort, Lee pushed Morman into a wall and left him in tight handcuffs in the holding cell for about 30 minutes. Id. Sergeant Dyer took “an aggressive stance” and “chased [Morman] around in attempts to provoke [Morman] to physically fight him, ” but no physical contact occurred. Id. at 16. Dyer also attempted to convince Morman to leave him (Dyer) out of the complaints. Id. at 17. Morman refused to drop the complaints. The CDCR-22 forms were returned to him, without Dyer having “record[ed] any facts regarding the forced [] hearing.” Id.

         Morman states that the defendants' actions were taken because of (a) Morman's earlier complaints about the searches and correctional officers, (b) Morman's convictions for sex offenses, (c) “information included in plaintiff's prison record;” and (d) because Morman had filed the grievances. Id. at 17.

         3. December 1, 2011 Administrative Segregation Placement

         Morman was transferred to San Quentin State Prison some time after the above described incidents. On or about December 1, 2011, correctional captain Evans and correctional sergeant Kilmer caused documents to be filed at San Quentin State Prison to “falsely reflect” that Morman was properly housed in administrative segregation. Id. at 19. Morman was not provided a proper notice or hearing in connection with his placement in administrative segregation. Id.

         B. Inmate Appeals

         Morman pursued three inmate appeals starting in late 2011. He filed an inmate appeal dated September 22, 2011 (log # CTF-11-01755), in which he complained about C/O Lee's behavior on August 25, 2011. See Docket No. 17-3 at 8-11. He filed another inmate appeal dated October 5, 2011 (log # CTF-11-01820), in which he complained about a search on September 28, 2011. See Docket No. 19-1 at 8-11. He filed a third inmate appeal, also dated October 5, 2011 (log # CTF-11-01821), in which he complained about a search and other events occurring on September 14, 2011. See Docket No. 19-1 at 15-17. The third-level appeal for this last appeal was signed by Morman on January 5, 2012. Id. (§ F). Morman submitted his January 5, 2012 third-level appeal after his December 1, 2011 placement in administrative segregation. All three inmate appeals were denied at the third level of review.

         Morman did not file any inmate appeal pertaining to his placement in administrative segregation or mentioning captain Evans and correctional sergeant Kilmer.


         Summary judgment is proper where the pleadings, discovery and affidavits show 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). The court will 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).

         Generally, as is the situation with defendants' challenge to the retaliation claims, the moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. 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.'” Celotex, 477 U.S. at 324.

         When a defendant moves for summary judgment on an affirmative defense on which he bears the burden of proof at trial, he must come forward with evidence that would entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). The failure to exhaust administrative remedies is an affirmative defense that must be raised in a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for summary judgment for nonexhaustion, the defendant has the initial burden to prove “that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172. If the defendant carries that burden, the “burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id. The ultimate burden of proof remains with the defendant, however. Id. If material facts are disputed, summary judgment should be denied, and the “district judge rather than a jury should determine the facts” on the exhaustion question, id. at 1166, “in the same manner a judge rather than a jury decides disputed factual questions relevant to jurisdiction and venue, ” id. at 1170-71.

         The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be ...

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