Lankford v. Taylor

          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 ...