United States District Court, D. Arizona
ROBERT C. BROOMFIELD, Senior District Judge.
In January 2011, Plaintiff Ammar Dean Halloum filed this civil rights action under 42 U.S.C. § 1983 against various Arizona Department of Corrections (ADC) employees (Doc. 1). In 2012, the parties filed and briefed cross-motions for summary judgment (Docs. 52, 55). On November 28, 2012, before ruling on the motions, the Court dismissed the action without prejudice under Federal Rule of Civil Procedure 41(b) due to Plaintiff's failure to pay the civil filing fee after his release from custody and failure to respond to an Order to Show Cause directing him explain why he was unable to pay (Doc. 74). Accordingly, the summary judgment motions were denied as moot (id.).
Two months later, in January 2013, Plaintiff filed motions indicating that he did not have notice of the Order to Show Cause or the Order dismissing the action (Docs. 76-77). On April 25, 2013, the Court vacated the judgment entered on November 28, 2012 and the Order entered that same date (Doc. 81 at 8). The April 25, 2013 Order stated that the parties' summary judgment motions will once again be pending (id.). Thereafter, Plaintiff paid the filing fee in full (Doc. 83).
Pursuant to the Court's April 25, 2013 Order, the parties' cross-motions for summary judgment are again before the Court (Docs. 52, 55).
Defendants' motion will be granted in part and denied in part, and Plaintiff's motion will be denied.
From December 2009 to July 8, 2010, Plaintiff was confined at the Arizona State Prison Complex (ASPC)-Florence North Unit, and thereafter he was confined at ASPC-Tucson, Whetstone Unit (Doc. 1 at 3, 5B). In his Complaint, Plaintiff named the following Defendants: (1) librarian Kerry Hernandez; (2) WIPP Coordinator Denise Huggins; (3) Correctional Officer (CO) III Tara Turner; (4) Master Chaplain Bruce Brier; and (5) Lieutenant Debra Riharb (id. at 2A).
Plaintiff alleges numerous First Amendment violations, some of which relate to his status as a Muslim of Syrian origin (id. at 3). In Count I, Plaintiff set forth retaliation claims against Hernandez, Huggins, and Turner (id. at 3). In Count III, Plaintiff alleged that Brier denied Plaintiff a religious shaving waiver in violation of Plaintiff's right to free exercise and to equal protection (id. at 5). Count IV alleged that Brier refused to distribute copies of the Quran, also in violation of Plaintiff's right to free exercise and to equal protection (id. at 5A).
Finally, in Count VI, Plaintiff alleged that Riharb, in violation of Plaintiff's free-exercise rights, prohibited Plaintiff and other Muslim inmates from holding communal prayer when she refused to let them bring in their prayers rugs for pre-breakfast prayers during Ramadan (id. at 5C). Plaintiff sued for money damages (id. at 6).
Defendants move for summary judgment on the grounds that (1) there is no evidence of retaliation by Hernandez, Huggins, or Turner; (2) Brier properly handled Plaintiff's shaving waiver request and Plaintiff's religious practice was not burdened; (3) the return of copies of the Quran was facilitated by an official other than Brier and was pursuant to ADC policy; (4) there is no evidence that Brier acted intentionally to discriminate against Plaintiff; (5) Riharb did not burden Plaintiff's religious practice; and (6) Defendants are entitled to qualified immunity (Doc. 52).
Plaintiff opposes Defendants' motion and cross-moves for summary judgment, arguing that (1) Hernandez, Huggins, and Turner's actions constitute unlawful retaliation; (2) Brier denied Plaintiff and other Muslims shaving waivers but permitted inmates of other religions to keep beards; (3) Brier customarily accepted boxes of language books and Bibles but refused copies of the Quran; (4) Riharb denied Muslims the ability to pray when she refused to let them use prayer rugs; and (5) Defendants are not entitled to qualified immunity (Doc. 55).
II. Summary Judgment Standard
A court must grant summary judgment "if the movant 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); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, that it believes demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323.
If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc. , 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden then shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co. , 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 288-89 (1968); however, it must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed.R.Civ.P. 56(c)(1).
At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson , 477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence, and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).
III. Count I-Retaliation
A. Governing Standard
Prisoners have a First Amendment right to file grievances and pursue civil rights actions. Rhodes v. Robinson , 408 F.3d 559, 567 (9th Cir. 2005) (quoting Bruce v. Ylst , 351 F.3d 1283, 1288 (9th Cir. 2003), and Schroeder v. McDonald , 55 F.3d 454, 461 (9th Cir. 1995)); see also Bradley v. Hall , 64 F.3d 1276, 1279 (9th Cir. 1995) (prisoners have a constitutional right to meaningful access to the courts, and prison authorities may not penalize or retaliate against an inmate for exercising that right), overruled on other grounds by Shaw v. Murphy , 532 U.S. 223 (2001). Thus, allegations of retaliation against an inmate's First Amendment rights to speech or to petition the government may support a civil rights claim. See Rizzo v. Dawson , 778 F.2d 527, 531-32 (9th Cir. 1985); Valandingham v. Bojorquez , 866 F.2d 1135, 1138 (9th Cir. 1989); see also Pratt v. Rowland , 65 F.3d 802, 806 & n. 4, 807 (9th Cir. 1995) (retaliation claims "fall within the other protection[s] from arbitrary state action'... because they are based upon protection of the prisoner's First Amendment rights, and not their Due Process rights").
"[A] viable claim of First Amendment retaliation entails five basic elements: (1) [a]n 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." Rhodes , 408 F.3d at 567-68. A prisoner "must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline." Barnett v. Centoni , 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). A variety of conduct can be actionable as retaliatory if undertaken for an improper purpose. See, e.g., Rizzo , 778 F.2d at 531-32. And the resulting injury need not be tangible to support the claim. Hines v. Gomez , 108 F.3d 265, 267, 269 (9th Cir. 1997) (an injury asserted to be the chilling effect of an officer's false accusation on the prisoner's First Amendment right to file prison grievances is sufficient to support a retaliation claim).
Retaliation claims must be evaluated in light of the concerns of excessive judicial involvement in day-to-day prison management, and courts must therefore "afford appropriate deference and flexibility" to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory. Pratt , 65 F.3d at 807.
In support of their motion, Defendants submit a separate Statement of Facts (DSOF), which is supported by Defendants' and other prison officials' declarations, various attachments, and an excerpt from Plaintiff's deposition (Doc. 53, Exs. A-M). Plaintiff supports his motion/response with his own declaration, sworn statements from numerous other individuals incarcerated at the same time as Plaintiff, and exhibits (Doc. 55, Exs. 1-11).
The parties set forth the following relevant disputed and undisputed facts:
On March 12, 2001, Plaintiff brought an affidavit to Hernandez for notarization, but she refused to notarize it (Doc. 1 at 3; DSOF ¶ 17). Defendants state that she would not notarize it because the notary statement on the document was worded improperly, so Hernandez instructed Plaintiff to correct the wording (DSOF ¶ 17). Plaintiff states that Hernandez read the affidavit, made racist comments to him, and refused to notarize the document (Doc. 1 at 3; Doc. 55, Ex. 1, Pl. Decl. ¶ 5 (Doc. 55 at 21)). Defendants state that at no time did Hernandez make racists comments to Plaintiff (DSOF ¶ 25). Plaintiff states that he complained to the Sergeant on duty about Hernandez's conduct (Doc. 1 at 3). Plaintiff states that the Sergeant reviewed the affidavit and exonerated Plaintiff (id.).
Defendants state that when presented with the affidavit containing improper wording, Hernandez asked Plaintiff if he printed it on the computers in the Education Classroom where he worked because she thought it looked recently printed and did not appear to have been in an envelope (DSOF ¶ 18). Plaintiff states that the affidavit was mailed to him by a paralegal agency (Doc. 55, Ex. 1, Pl. Decl. ¶ 9). Defendants state that Hernandez then checked with James Ard, the Program Teacher, who confirmed that Plaintiff had access to a computer and printer (DSOF ¶ 19). Defendants state that Ard suspected Plaintiff had printed the document in the classroom (id.). Defendants state that Hernandez spoke with a Security Sergeant (DSOF ¶ 20).
Plaintiff states that in retaliation for his complaint to the Sergeant, Hernandez attempted to get him terminated from his Teaching Aid job by going to Plaintiff's supervisor, Ard, but Ard confirmed that Plaintiff did not have access to the printer (Doc. 1 at 3).
Defendants state that Hernandez then advised Huggins that she believed Plaintiff used the education computers for personal legal work (DSOF ¶ 22). Defendants state that Huggins spoke with Ard, who advised her that he believed Plaintiff used the education computers for personal legal work (id. ¶ 23). Defendants further state that Ard requested that Plaintiff be reassigned from his position as a Teaching Aid (id.). Plaintiff states that Ard sought to keep Plaintiff in his position as a Teaching Aid (Doc. 1 at 3A).
On March 16, 2010, Huggins terminated Plaintiff from his Teaching Aid position on the ground that he used the education computers for personal work (DSOF ¶ 26). Plaintiff states Huggins terminated him based on Hernandez's false accusation (Doc. 1 at 3A). Plaintiff states that Huggins thereafter assigned Plaintiff to manual labor jobs, despite Plaintiff's disability, for the purpose of degrading Plaintiff and deterring him from complaining (id.). Defendants state that Huggins spoke with medical staff and was told that Plaintiff had no physical restrictions, so, in April 2010, Plaintiff was reassigned to a kitchen-helper position (DSOF ¶¶ 31-32). Plaintiff states that on the second day of his kitchen job, he was injured as a result of his disability, and he was released from the kitchen job (Doc. 55, Ex. 1, Pl. Decl. ¶ 15).
Plaintiff states that in early May 2010, he complained to CO IV Perry about Huggins' vindictiveness towards him (Doc. 55, Ex. 1, Pl. Decl. ¶ 17). Plaintiff states that he also complained to Turner about the unfair treatment from Huggins, but Turner refused to assist him (Doc. 1 at 3A). Plaintiff states that he filed grievances, but Turner threatened to move Plaintiff off the yard (id.). Plaintiff states that on May 19, Turner told another inmate that she knew Plaintiff had made a complaint against her and she went to Huggins to ask that Plaintiff be moved off the yard, so he would be moved to Yard 2 that afternoon (Doc. 55, Ex. 2, Saifullah Shahid Decl. ¶ 19 (Doc. 55 at 31)).
Defendants state that on May 13, 2010, Plaintiff was reassigned to a groundskeeper position and moved from North Unit Yard 1 to Yard 2 (DSOF ¶ 34). They also state that while Turner was Plaintiff's counselor, he went into her office daily to complain about issues, so it was agreed that Plaintiff would have to address his issues through inmate letters and could go to Turner's office only twice a week (id. ¶ 36).
Plaintiff states that there was no agreement for him go to Turner's office twice a week (Doc. 55, Ex. 1, Pl. Decl. ¶ 24). Plaintiff states that on one occasion, Turner allowed other inmates in before seeing Plaintiff, and when she finally saw Plaintiff, she screamed at him and told him she didn't want to see him and kicked Plaintiff out (id. ¶ 22). Plaintiff states that he then went to the Administrative office and filed a complaint about Turner's behavior (id. ¶ 23).
Defendants state that after a couple more job changes and a move back to Yard 1, Plaintiff was transferred to the Florence East Unit on July 8, 2010 (DSOF ¶¶ 41-43). Plaintiff states this was a retaliatory transfer because Florence East houses aggressive and dangerous inmates (Doc. 1 at 3B). Plaintiff states that when he arrived at Florence East, he was hired to work again as a Teaching Aid after Supervisor Skelly verified with Ard that the earlier accusation about Plaintiff was false (id.). Plaintiff states that two weeks later, Huggins called another WIPP Coordinator, Emilio Sauceda, and had Plaintiff terminated from his Teaching Aid job at Florence East (id.). Defendants state that in July 2010, Huggins contacted WIPP coordinator Sauceda at Florence East and advised him to review Plaintiff's AIMS for comments about Plaintiff's job assignments (DSOF ¶ 46). Defendants state that Huggins did not advise Sauceda to terminate Plaintiff (id. ¶ 48).
On July 26, 2010, Plaintiff was removed from his Teaching Aid position because AIMS revealed that in March 2010 he was removed from the same position for use of education computers for personal work (id. ¶ 47).
On August 8, 2010, Plaintiff was transferred to the Tucson Complex, where he immediately began a job as a Teaching Aide, which he kept for eight months until his release in April 2011 (Doc. 55, Pl. Decl. ¶ 39).
Plaintiff must first show that he exercised protected conduct. Rhodes , 408 F.3d at 567. He states that he complained to the Sergeant about Hernandez's racist comment and the Sergeant took the issue seriously, which in turn began a series of retaliatory actions that, according to Plaintiff, were designed to deter him from filing grievances (Doc. 55 at 10). Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff's verbal complaint to a Sergeant about Hernandez's conduct constitutes a protected action under the First Amendment Rizzo , 778 F.2d at 531-32; Valandingham , 866 F.2d at 1138.
Next, Plaintiff must demonstrate that Hernandez took an adverse action against him. Rhodes , 408 F.3d at 567-68; see Leer v. Murphy , 844 F.2d 628, 634 (9th Cir. 1988) (the plaintiff must identify specific facts as to each individual defendant's acts or omissions that allegedly caused the deprivation). The alleged adverse action by Hernandez is her attempt to get Plaintiff fired by making a false accusation-that he improperly used the school's printer-to Plaintiff's work supervisor and the WIPP Coordinator (see Doc. 1 at 3; Doc. 55 at 2). The Court finds that Plaintiff has sufficiently alleged an adverse action to support his retaliation claim. See Austin v. Terhune , 367 F.3d 1167, 1171 (9th Cir. 2004) (the defendant filed false report that resulted in inmate's placement in segregation in retaliation for filing grievances).
Under the third element of the Rhodes analysis, Plaintiff must show that his protected conduct was "the substantial or motivating factor" behind Hernandez's action. Brodheim v. Cry , 584 F.3d 1262, 1271 (9th Cir. 2009) (citing Soranno's Gasco, Inc. v. Morgan , 874 F.2d 1310, 1314 (9th Cir. 1989)). To make this showing, Plaintiff must demonstrate that Hernandez knew of the protected conduct and that either (1) there was proximity in time between the protected conduct and the allegedly retaliatory action, (2) that Hernandez expressed opposition to the speech, or (3) Hernandez's proffered reason for the adverse action was pretextual. Corales v. Bennett , 567 F.3d 554, 568 (9th Cir. 2009) (citation and emphasis omitted); see Pratt , 65 F.3d at 808 (timing can be considered as circumstantial evidence of retaliatory event).
Plaintiff asserts that after he complained to the Sergeant, the Sergeant privately spoke to Hernandez (Doc. 55 at 10). In her declaration, Hernandez confirms that she spoke with a Security Sergeant (Doc. 53, Ex. B, Hernandez Decl. ¶ 9). Although Hernandez's declaration statements suggest that her contact with the Sergeant occurred after she went to Plaintiff's work supervisor, the order of events is not clear, and, regardless, the Court must take as true Plaintiff's allegation that Hernandez's actions followed Plaintiff's complaint about her to the ...