United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States District Judge.
Plaintiff
Kirk Lankford, who is currently confined in the Saguaro
Correctional Center (“SCC”) in Eloy, Arizona,
brought this civil rights action pursuant to 42 U.S.C. §
1983. Defendants Assistant Warden Benjamin Griego, Unit
Manager Jesus Guilin, Case Manager Weckwerth, Correctional
Counselor C. Hoskins, and CoreCivic[1] move for summary judgment.
(Doc. 37.) Plaintiff was informed of his rights and
obligations to respond (Doc. 41) and opposes the motion (Doc.
55). For the following reasons, the Court will grant the
motion in part, deny it in part, and order the parties to
provide supplemental briefing concerning Count Seven.
I.
Background
Defendants
removed this case from the Maricopa County Superior Court.
(Doc. 1.) On screening the complaint under 28 U.S.C. §
1915A(a), the Court determined that Plaintiff stated a First
Amendment retaliation claim in Count Three against Guilin,
Weckwerth, Hoskins, and Griego; a free speech claim under the
Arizona Constitution in Count Seven against Guilin,
Weckwerth, Hoskins, and Griego; and a state-law conversion
claim in Count Nine against Weckwerth, Hoskins, Guilin,
Griego, and CoreCivic. (Doc. 13.) The Court dismissed the
remaining claims and Defendants. (Id.)
In
Count Three, Plaintiff alleges that Guilin, Weckwerth, and
Hoskins violated his First Amendment rights by searching his
property and confiscating it in retaliation for his filing of
a lawsuit in 2015 against the State of Hawaii and other
Hawaii officials in connection with his criminal conviction
(hereinafter the “Hawaii Lawsuit”).[2] (Doc 1-1 at
17-18.)[3] Plaintiff further claims that Griego
ordered, authorized, and coordinated the search and
confiscation. (Id.) In Count Seven, Plaintiff
alleges that Guilin, Weckwerth, Hoskins, and Griego violated
his right to free speech under the Arizona Constitution in
retaliation for his filing of the Hawaii Lawsuit.
(Id. at 22-25.) In Count Nine, Plaintiff alleges
that Weckwerth, Hoskins, Guilin, Griego, and CoreCivic
committed the tort of conversion with respect to property
that was confiscated or damaged. (Id. at 28.)
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, if any, 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
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.
Relevant Facts[4]
A.
The Hawaii Lawsuit
In
February 2015, Plaintiff filed a Complaint in the Circuit
Court of the State of Hawaii against various defendants
involved in his Hawaii criminal proceeding, including the
City and County of Honolulu, Department of the Prosecuting
Attorney, and former and current City and County of Honolulu
prosecuting attorneys. (Doc. 38-6.) Plaintiff kept notes
regarding the Hawaii Lawsuit in his cell at SCC “in a
manila envelope labeled to clearly indicate that the material
therein pertained to” that lawsuit. (Doc. 1-1 at 6.) At
the time of the April 6, 2016 search that forms the basis for
Plaintiff’s claims in this case, there had been no
activity in the Hawaii Lawsuit for nearly three months-it had
removed to federal court, then remanded back to state court,
and the parties had completed briefing on the
defendants’ motion to dismiss on January 8, 2016. (Doc.
38-6 at 2-5.) Currently, appellate proceedings with respect
to the Hawaii Lawsuit are ongoing.[5] (Doc. 51 at 2-3.)
B.
CoreCivic and SCC Policy Regarding Property and Cell
Searches
CoreCivic’s
policies and procedures governing prisoner property at SCC
are set forth in CoreCivic/SCC Policy 14-6. (Doc. 38 ¶
12.) Prisoners may possess certain personal and
facility-issued property while at SCC, a list of which is set
forth in the Allowable Personal Property List Form 14-6AA.
(Id. ¶ 13.) A copy of the list is posted in
each housing unit at SCC. (Id. ¶ 14.) Upon
admission, each prisoner receives a handbook that also
contains information regarding allowable personal property.
(Id. ¶ 15.)
In
addition to facility-issued property and property possessed
at admission, prisoners may acquire additional personal
property through the commissary and/or facility approved
vendors. (Id. ¶ 16.) Allowable property in
excess of the amount authorized by the Allowable Personal
Property List is considered contraband and will be
confiscated. (Id. ¶ 17.) Any property that has
been altered or modified or that has had identifying marks
removed or modified is considered contraband and is subject
to confiscation. (Id. ¶ 18.) Any items in a
prisoner’s possession that have not been approved
during admission, issued by the facility, purchased from the
commissary/approved vendor, or previously authorized by the
facility are considered contraband and will be confiscated.
(Id. ¶ 19.)
Defendants
assert that “nuisance contraband, ” or trash, is
also subject to confiscation. (Id. ¶
20.)[6]
They further claim that excess blank facility forms are
considered nuisance contraband and that the confiscation of
nuisance contraband, trash, excess papers, and blank facility
forms prevents prisoners from over-accumulating papers and
trash in their cells, which could pose a fire or safety
hazard, infringe on the rights of the prisoner’s
cellmate, or create a security risk. (Id.
¶¶ 21-22.)
Legal
materials are allowable property and are subject to visual
search for concealed contraband. (Id. ¶ 23.)
SCC personnel are not permitted to read a prisoner’s
legal materials during a search, but personnel may “go
through” a prisoner’s legal materials to look for
concealed contraband or non-legal documents or writings that
could pose a threat to the safety and security of the
facility. (Id. ¶ 24.) SCC personnel generally
are not permitted to confiscate and/or dispose of a
prisoner’s legal materials unless the materials contain
writings that could pose a threat to the safety and security
of the facility. (Id. ¶ 25.)
Under
SCC policy, “[f]requent, unannounced searches of
inmates, cells, and other areas of the facility are conducted
as often as necessary to promote the safety and security of
the facility.” (Doc. 38-1 at 23.) Searches are
conducted “to detect and prevent the introduction of
contraband, to recover missing or stolen property and to
prevent escapes and other disturbances.” (Id.)
“Searches are to be conducted in a manner, which avoids
unnecessary force or embarrassment” to the prisoner,
but the prisoner’s presence during the search is not
required. (Id.) “Contraband” is defined
as “any item or items possessed by an inmate or found
within the facility which are not issued, sold in commissary,
approved by the Warden or authorized by written facility
policy.” (Id.)
Searches
of cells and holding areas may be performed unannounced, on
an irregular basis and in an orderly manner. (Doc. 38 ¶
25.) Cell searches may be conducted based on reasonable
suspicion “or for no reason at all.”
(Id. ¶ 33.) Cell searches occur daily to
maintain the safety and security of the facility, personnel,
and prisoners. (Id. ¶ 34.) Cell searches
consist of a “systematic, complete, and sweeping search
of all property in the cell.” (Id. ¶ 35.)
When a
contraband item is found during a cell search, the SCC
employee must confiscate the item, notify his or her
supervisor of the discovery, and document the confiscation
and disallowable property on the Disposition of Non-Allowable
Property Form, Form 14-6A. (Id. ¶
37.)[7]
A prisoner can designate the disposition of non-allowable
contraband listed on Form 14-6A in one of several manners.
(Id. ¶ 38.)[8]
The
parties agree that a prisoner’s personal property, with
two potential exceptions, may not be confiscated, destroyed,
or otherwise disposed of without notice to the prisoner
according to Policy 14-6.4(B). (Doc. 38 ¶ 41; Doc. 51 at
5.) The disputed exceptions concern “nuisance
contraband” and trash: Defendants contend these
materials may be destroyed without notice to the prisoner,
while Plaintiff correctly notes that the written policy
doesn’t appear to carve out an exception for these
materials. (Id.)
During
cell searches, if there is any evidence that a prisoner may
have tampered with or is hiding contraband in a mechanical
device, such as a typewriter, the mechanical device is
confiscated and taken to the maintenance department or a
supervisor for further inspection. (Doc. 38 ¶ 57.) The
device is opened to ensure that a prisoner has not opened,
altered, or tampered with the device to remove parts that
could be made into a weapon and to ensure that the prisoner
is not hiding or storing contraband in the device that would
pose a safety and security threat to the facility.
(Id. ¶ 58.) After the mechanical device is
inspected, and if there is no evidence that its parts are
missing or that it contains contraband, it is returned to the
prisoner. (Id. ¶ 59.)
C.
The Search and Confiscation of Plaintiff’s
Property
The
parties dispute whether and/or the extent to which Griego
(the assistant warden) was involved in the decision to
authorize the search of Plaintiff’s cell on April 6,
2016. In their separate statement, Defendants assert that
although Griego generally has the authority to order the
search of an inmate’s cell, Griego “has no
recollection of whether he authorized or ordered” the
search of Plaintiff’s cell on April 6, 2016. (Doc. 38
¶¶ 77, 80.) Plaintiff, meanwhile, asserts that he
had a conversation with Griego in July 2016 during which
Griego “acknowledge[ed] that he ordered/authorized the
April 6, 2016 search, ” “stated that he knew
Plaintiff was going to file suit because of the
search/confiscation, ” and “made threats to
Plaintiff about the confiscation of Plaintiff’s legal
work.” (Doc. 51 ¶¶ 79, 200.)[9]
In any
event, it is undisputed that Defendants Guilin and Weckwerth
searched Plaintiff’s cell on April 6, 2016 and removed
various items of personal property, including legal
materials, a typewriter, and a photo album. (Doc. 38
¶¶ 43, 48, 56, 64.) Plaintiff alleges that
Defendant Hoskins also participated in the search (Doc. 51
¶¶ 43, 180-81), but Hoskins denies any involvement
(Doc. 38 ¶ 99.)
Plaintiff
contends the search of his cell was “not an ordinary
search” in comparison to other searches at SCC and
shouldn’t be characterized as a “cell
search.” (Doc. 51 at 10-11.) Among other things,
Plaintiff contends that searches of prisoners’ property
are not ordinarily conducted between 1:40 pm and 3:00 pm, as
the April 6, 2016 search was, and are not ordinarily
performed by unit managers like Guilin. (Id. at 11.)
Also, Plaintiff contends that searches of prisoners’
property are not ordinarily preceded by the removal of all of
the prisoner’s legal materials from his cell to the
multipurpose room of his housing unit, unless the prisoner is
being rehoused. (Id.) Defendants dispute that the
search of Plaintiff’s cell was
“extraordinary” and assert that Guilin and
Weckwerth conducted an unannounced search of
Plaintiff’s cell pursuant to SCC policy. (Doc. 38
¶¶ 43, 75.) Guilin and Weckwerth state in
declarations that they do not recall the exact reason for
searching Plaintiff’s cell but note that Plaintiff had
“a history of possessing excess ...