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Debarr v. Clark

United States District Court, D. Nevada

May 19, 2017

BRIAN JOEL DEBARR, Plaintiff,
v.
STEPHAN CLARK, et al., Defendants.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.

         This Report and Recommendation is made to the Honorable Larry R. Hicks, Senior United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.

         Before the court is Defendants Renewed Motion for Summary Judgment Based on Qualified Immunity. (ECF Nos. 104; exhibits at 105, 106, 107, 125; 116[1]; 124[2].) Plaintiff filed a response. (ECF No. 129, 130 (appendix of exhibits).) Defendants filed a reply. (ECF No. 131.)

         After a thorough review, the court recommends that Defendants' motion be denied.

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), who filed this action concerning events that took place while Plaintiff was housed at Lovelock Correctional Center (LCC) in the Sixth Judicial District Court of the State of Nevada, in and for the County of Pershing, on December 21, 2011. (ECF No. 1-1.) Defendants removed the action to federal court on January 20, 2012. (ECF No. 1.)

         Defendants are Tara Carpenter, Ellie Emmanuel, Don Helling, Jack Palmer, Kirk Widmar, and Greg Cox. (See Screening Order, ECF No. 7.) Defendant Stephen Clark was dismissed without prejudice pursuant to a stipulation between the parties. (ECF Nos. 102, 103.)[3]

         In his complaint, Plaintiff alleges that he is a member of the Pagan faith group at LCC and in January 2009, he and other Pagan faith group members were informed that part of the land authorized for use by the Pagans at LCC would be flattened in connection with construction projects on buildings, including housing units 3A and 3B. He claims that the area initially identified by the LCC administration as being impacted did not include the sacred portions of the Pagan grounds, so the Pagans made preparations to accommodate the construction project. He claims that on October 21, 2009, instead of flattening only a portion of the grounds, the entirety of the grounds behind units 3A and 3B were flattened.

         After learning of the destruction of the grounds, he contends that he filed multiple grievances, containing one issue per grievance, as is required under Administrative Regulation (AR) 740. He subsequently received a notice of charges for abuse of the inmate grievance process. He was convicted and sentenced to fifteen days in disciplinary segregation. He claims that he was identified as one of a group of Pagan inmates who submitted multiple grievances regarding destruction of the grounds and it was recommended that he be transferred to the allegedly more secure and less desirable High Desert State Prison (HDSP). He was transferred to HDSP on January 13, 2010, and was ultimately transferred back to LCC in July 2011.

         On screening, Plaintiff was allowed to proceed with the following claims based on those facts: (1) retaliation for filing grievances; (2) claims under the First Amendment's Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000-cc(1); (3) an Equal Protection Clause claim for alleged discrimination against those of the Pagan faith. (ECF No. 7.) The Screening Order did not address the viability of the State law claims or the federal conspiracy claim brought pursuant to 42 U.S.C. §§ 1985, 1986.

         On June 10, 2013, Defendants filed their initial motion for summary judgment, arguing that the disciplinary action taken against Plaintiff and his transfer to HDSP were based on legitimate penological reasons, and not because of Plaintiff was filing grievances or because of his Pagan beliefs. (ECF No. 35.) On January 13, 2014, the undersigned recommended that insofar as Plaintiff's response to the motion contained a request under what is now Federal Rule of Civil Procedure 56(d), there were insufficient grounds for allowing Plaintiff to conduct further discovery. (ECF No. 48.) The undersigned further recommended that Defendants motion be granted. (ECF No. 48.) On March 7, 2014, District Judge Larry R. Hicks adopted and accepted the report and recommendation. (ECF No. 53, 64.[4]) Plaintiff appealed the order on March 14, 2014. (ECF Nos. 54, 65.)

         On March 2, 2016, the Ninth Circuit Court of Appeals issued a memorandum reversing and remanding the grant of summary judgment in favor of Defendants.[5] The appellate court concluded that the district court erred “by concluding that the evidence presented no genuine issue of material fact as to whether Plaintiffs abused the prison grievance process.” (ECF No. 70 at 3.) The Ninth Circuit found that the “evidence, when viewed in the light most favorable to Plaintiffs, shows that they had engaged in the prison's informal resolution procedure before filing their grievances, that their grievances were not frivolous, vexatious or duplicative, and that the Defendants failed to follow their own mandated procedures in punishing Plaintiffs.” (Id.) While Defendants argued that AR 740 forbids the filing of duplicative grievances, the Ninth Circuit pointed out that “AR 740 only limits the number of ‘unfounded frivolous or vexatious grievances, ' a disputed issue in this case.” (Id.) The Ninth Circuit also concluded that the district court abused its discretion in denying the request for a continuance of summary judgment pending further discovery under Federal Rule of Civil Procedure 56(d), and stated that on remand Plaintiffs should be allowed to pursue discovery. (Id. at 4.)

         On remand, consistent with the Ninth Circuit's order, the undersigned directed the parties to meet and confer concerning what discovery needed to be undertaken, and subsequently reopened discovery and modified the scheduling order. (See ECF Nos. 84, 88.)

         On December 12, 2016, Defendants filed their Renewed Motion for Summary Judgment Based on Qualified Immunity. Defendants argue that they did not violate Plaintiff's constitutional rights, and even when considered in the light most favorable to Plaintiff, the facts show no violation of a constitutional right clearly established in law at the time the conduct occurred. Plaintiff, on the other hand, argues that Defendants are merely attempting to rehash their motion for summary judgment on the merits, when the Ninth Circuit already determined there was a genuine dispute of material fact precluding summary judgment in Defendants' favor. He further argues that Defendants were on clear notice that their conduct violated Plaintiff's constitutional rights.

         II. DISCUSSION

         A. Qualified Immunity

         “‘In determining whether an officer is entitled to qualified immunity, we consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer's alleged misconduct.'” Ames v. King County, Washington, 846 F.3d 340, 347 (9th Cir. 2017) (quoting Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014)). The court may use its discretion to determine which of the prongs to address first. Id.

         “Qualified immunity attaches when an official's conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” White v. Pauly, 137 S.Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S.Ct. at 308). A case directly on point is not required for a right to be clearly established, but “‘existing precedent must have placed the statutory or constitutional question beyond debate.'” Id. “In other words, immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Id.

         “‘[C]learly established law' should not be defined ‘at a high level of generality.'” Id. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). “[T]he clearly established law must be ‘particularized' to the facts of the case.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity … into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.'” Id. (quoting Anderson, 483 U.S. at 639).

         B. Was There a Violation of a Constitutional Right?

         First, the court will address whether there has been a violation of a constitutional right.

         Preliminarily, Plaintiff claims that Defendants' motion simply rehashes its earlier motion for summary judgment on the merits, the granting of which was reversed by the Ninth Circuit. It is true that many of Defendants' arguments are similar to those raised in the original motion, but in arguing they are entitled to qualified immunity, Defendants are permitted to argue that there was no violation of a constitutional right. See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002) (explaining that the rights-violation prong of the qualified immunity analysis “mirrors the substantive summary judgment decision on the merits”). Therefore, the court does not find Defendants' motion should be denied on this basis.

         As will be discussed in detail below, even after discovery was reopened pursuant to the Ninth Circuit's direction, factual disputes still remain concerning whether there was a violation of Plaintiff's constitutional rights, and viewing the facts in the light most favorable to Plaintiff, a reasonable fact-finder could conclude his constitutional rights were violated. See Chappell v. Mandeville, 706 F.3d 1052, 1057 (9th Cir. 2013) (citations omitted) (when the court conducts a qualified immunity analysis, it must view the facts in the light most favorable to the plaintiff).

         Preliminarily, the following general facts are undisputed: during the relevant time period, Plaintiff was an inmate housed in LCC's protective custody (PC) unit, and designated his faith group as Pagan. The Pagan inmates utilized an area outside the buildings that housed the PC inmates for worship. At some point in 2009, the Pagans were informed that the prison would need to do some work to the exterior of the housing units adjacent to the Pagan grounds.

         On October 20, 2009, the exterior work was performed and resulted in the flattening of the Pagan grounds.

         After they observed the flattening of the grounds, Plaintiff and fourteen other Pagan inmates each submitted twenty-one grievances about various issues concerning the PC Pagan inmates. Emmanuel consulted with Palmer, and prepared a memorandum for Helling, recommending that the inmates be served with a notice of charges for abuse of the prison grievance process. Helling agreed with the recommendation and the inmates, including Plaintiff, were served with the notice of charges. A disciplinary hearing was held with Widmar serving as the assigned disciplinary hearing officer. Plaintiff pled not guilty to the charge. Plaintiff gave a statement explaining that his intent in filing the grievances in that manner was to exhaust his administrative remedies prior to filing a lawsuit. He was ultimately convicted of the charge and sentenced to fifteen days in disciplinary segregation. He was also transferred to HDSP.

         1. Retaliation

         “Section 1983 provides a cause of action for prison inmates whose constitutionally protected activity has resulted in retaliatory action by prison officials.” Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015). Such a claim consists of the following elements: (1) an assertion that a state actor took some adverse action against an inmate; (2) because of; (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.

         Jones, 791 F.3d at 1035 (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)). “The First Amendment guarantees a prisoner a right to seek redress of grievances from prison authorities as well as a right of meaningful access to the courts.” Id. (citation omitted).

         An inmate must submit evidence, either direct or circumstantial, to establish a link between the exercise of constitutional rights and the allegedly retaliatory action. Pratt v. Rowland, 65 F.3d 802, 806-07 (9th Cir. 1995). The plaintiff “need only ‘put forth evidence of retaliatory motive, that, taken in the light most favorable to him, presents a genuine issue of material fact as to [the defendant's] intent[.]'” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)). Restated, in order to raise a triable issue as to motive, the plaintiff must offer “either direct evidence of retaliatory motive or at least one of three general types of circumstantial evidence [of that motive].” McCollum v. Ca. Dep't of Corr. and Rehab., 647 F.3d 870, 882 (9th Cir. 2011) (citation and quotation marks omitted). Circumstantial evidence may include: “(1) proximity in time between protected [activity] and the alleged retaliation; (2) [that] the [defendant] expressed opposition to the speech; [or] (3) other evidence that the reasons proffered by [the defendant] for the adverse … action were false and pretextual.” Id. (internal citation and quotation marks omitted).

         Defendants do not contest that adverse action was taken against Plaintiff. Nor do they make an argument concerning the chilling of Plaintiff's First Amendment rights. Instead, they argue that Plaintiff cannot establish he was retaliated against when he was subject to disciplinary sanctions following the grievance incident because he cannot demonstrate he was punished because he engaging in protected activity. They maintain that he was disciplined for conspiring with other inmates in an organized, group protest. In addition, they contend that Plaintiff cannot establish that Defendants' conduct did not reasonably advance the legitimate correctional goals of safety and security of the institution when faced with this coordinated effort among the fourteen inmates. Plaintiff, on the other hand, argues that the evidence reveals that he was punished not for conspiring to create an organized group protest, but for filing grievances.

         Insofar as Defendants argue that Plaintiff was not punished for engaging in First Amendment activity, but for conspiring with other inmates in an organized group protest, they contend that Plaintiff admits that NDOC prohibits the filing of a petition.

         The court notes, however, that Plaintiff was not charged with filing a petition, but with abuse of the grievance process. While Plaintiff admits that he knew inmates were not allowed to file a petition, he went on to testify that is not what he and the other inmates were doing. (Pl. Decl., ECF No. 129 at ¶¶ 13, 14.) He insists they were following the rules by filing one issue per grievance so they could exhaust their administrative remedies before filing a lawsuit. (See Pl.'s Depo., ECF No. 105 at 19, pp. 60:8-12, 60:21-25; Pl.'s Decl., ECF No. 129 at 19 ΒΆ 14.) Plaintiff explains that they did not want to have an issue with an inmate who was part of the group not being able to pursue a claim in the lawsuit for failure to exhaust administrative remedies; therefore, they exchanged a document between themselves where each person wrote out the issues they thought should be included (in the lawsuit), and using that document agreed on twenty-one issues for which each inmate needed to file a grievance. (Pl.'s Decl., ECF No. 129 ...


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