Grenning v. Key et al, No. 2:2022cv00136 - Document 45 (E.D. Wash. 2023)
Court Description: ORDER DENYING 37 PLAINTIFF'S MOTION TO VACATE AND SET ASIDE JUDGMENT. Signed by Judge Mary K. Dimke. (TNC, Case Administrator)**20 PAGE(S), PRINT ALL**(Neil Grenning, Prisoner ID: 872019)
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Grenning v. Key et al Doc. 45 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.617 Page 1 of 20 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Sep 26, 2023 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 NEIL GRENNING, No. 2:22-cv-00136-MKD Plaintiff, 8 9 10 11 12 ORDER DENYING PLAINTIFF’S MOTION TO VACATE AND SET ASIDE JUDGMENT v. JAMES R. KEY, sued in his official and individual capacity, and ANN WISE, sued in her official and individual capacity, Defendants. ECF No. 37 13 Before the Court is Plaintiff’s Motion to Vacate and Set Aside Judgment, 14 ECF No. 37. Defendants filed a response to the Motion to Vacate, ECF No. 38, 15 and Plaintiff filed a reply, ECF No. 43. The Court has reviewed the record and is 16 fully informed. For the reasons set forth below, the Court denies Plaintiff’s Motion 17 to Vacate, ECF No. 37. 18 19 20 BACKGROUND Plaintiff, an inmate at Airway Heights Corrections Center (AHCC), filed a pro se Complaint in the Spokane County Superior Court, alleging Defendants ORDER - 1 Dockets.Justia.com Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.618 Page 2 of 20 1 violated his rights by refusing to submit a story he wrote to be considered for 2 publication, and informing Plaintiff he would be removed from a writing program 3 if he did not follow the program protocols. ECF No. 1-2. Specifically, Plaintiff 4 brought a Section 1983 claim, alleging Defendants violated Article I, Section 5 of 5 the Washington State Constitution and the First Amendment of the United States 6 Constitution. Id. Defendants removed the case to this Court. Id. Defendants filed 7 a Motion for Summary Judgment, ECF No. 24, and Plaintiff filed a Motion to Stay, 8 ECF No. 32. The Court granted Defendants’ Motion for Summary Judgment. 9 ECF No. 35. Plaintiff then filed a Motion to Vacate and Set Aside Judgment. ECF 10 No. 37. 11 12 LEGAL STANDARD A district court may reconsider its disposition of a motion for summary 13 judgment pursuant to Federal Rule of Civil Procedure 59(e). Sch. Dist. No. 1J, 14 Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993); Taylor 15 v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989). A court may only alter or amend a 16 previous ruling or judgment under Rule 59(e) if: (1) it “is presented with newly 17 discovered evidence”; (2) it “committed clear error or made an initial decision that 18 was manifestly unjust”; or (3) “there is an intervening change in controlling 19 law.” United Nat’l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th 20 Cir. 2009) (quoting Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. ORDER - 2 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.619 Page 3 of 20 1 2001)). Rule 59(e) “offers an extraordinary remedy, to be used sparingly in the 2 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. 3 Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting 12 JAMES W. 4 MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 54.78[1] (3d ed. 2000)). 5 When considering a Rule 59(e) motion, the court may disregard “repeated legal 6 arguments” and “facts that were available earlier in the proceedings.” Zimmerman, 7 255 F.3d at 740. 8 9 DISCUSSION Plaintiff does not present newly discovered evidence and does not contend 10 there was an intervening change in controlling law; thus, the Court must only 11 consider whether it committed clear error, or the initial decision was manifestly 12 unjust. See ECF No. 37; United Nat’l Ins. Co., 555 F.3d at 780. Plaintiff contends 13 the Court did not receive his timely submitted response to Defendants’ Motion for 14 Summary Judgment due to the prison not submitting his motion via ECF. ECF No. 15 37 at 1-3. Plaintiff contends the Court’s initial decision was thus erroneous or 16 manifestly unjust because Plaintiff’s response, and the evidence submitted with the 17 response, was not considered by the Court. Id. Defendants contend Plaintiff has 18 failed to establish the Court committed clear error or that a manifest injustice has 19 occurred. ECF No. 38 at 4-8. 20 ORDER - 3 Case 2:22-cv-00136-MKD 1 ECF No. 45 filed 09/26/23 PageID.620 Page 4 of 20 Plaintiff contends he submitted his response to be scanned by a prison staff 2 on April 19, 2023. ECF No. 37 at 2. He contends he provided his response to a 3 staff who then scanned the documents. Id. at 8-9. He states the staff sent the 4 scanned documents to a law librarian or legal liaison, who was supposed to file the 5 documents, but the documents were never filed on ECF in this case. Id. Plaintiff 6 states he did not receive a confirmation the documents were filed on ECF but 7 contends confirmations are often not received even when the documents are 8 successfully filed. Id. Plaintiff submitted a copy of a scanning request document, 9 dated April 19, 2023, which indicates Plaintiff submitted 194 pages to be scanned, 10 id. at 12-13, as well as a handwritten document Plaintiff labeled “Grenning’s 11 personal log of case events,” which indicates Plaintiff “ECFed tentative Response 12 to Summary Judgment,” id. at 15-17. Plaintiff also submitted a kite 13 communication between himself and a law library supervisor, Mr. Christenson, 14 who stated there was no record of Plaintiff’s reported request for scanning. Id. at 15 19. 16 Defendants submitted a declaration from Mr. Christenson, who stated that 17 documents are scanned and submitted to ECF in manners in which there is always 18 written documentation of the scanning, which he retains. ECF No. 39 at 2-3. The 19 documents are either: 1) brought to Mr. Christenson in the Law Library and then 20 scanned by Mr. Christenson and filed in the presence of the inmate; or 2) Mr. ORDER - 4 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.621 Page 5 of 20 1 Christenson or another staff goes to the inmate’s unit, collecting the documents and 2 Scanning Request (with “waiver of presence” portion signed), and Mr. Christenson 3 then scans and files the documents; or 3) staff collect the documents and scanning 4 form (with the “waiver of presence” portion signed), and they then scan the 5 documents and email them to Mr. Christenson, who files the documents. Id. at 2-3. 6 He also stated email confirmations are sent to staff notifying them when e-filing is 7 completed. Id. at 3. Mr. Christenson stated Plaintiff has submitted eight 8 documents to Mr. Christenson for e-filing, four e-filings to other staff, and 13 9 documents for legal photocopying. Id. However, there is no documentation of 10 Plaintiff requesting e-filing of the alleged April 19 response. Id. at 4. Mr. 11 Christenson stated he does not have documentation of the request for scanning 12 Plaintiff submitted, and the form does not have Mr. Christenson’s name on it, nor 13 the total number of pages scanned. Id. He states there are “no circumstances 14 under which I do not attach my name to the Scanning Request Sheet if I have e- 15 filed the document.” Id. The request form also should have the total number of 16 pages scanned to confirm the documents were scanned in their entirety. Id. 17 Defendants also submitted a declaration from Ms. Hansen, a Policy/Public 18 Disclosure Coordinator/Administrative Assistant at AHCC. ECF No. 40. Ms. 19 Hansen stated that AHCC distributes a copy of CM/ECF notices to inmates, and a 20 log is kept of the receipts and distribution. Id. at 2. A log of Plaintiff’s CM/ECF ORDER - 5 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.622 Page 6 of 20 1 notifications indicates Plaintiff was provided notice of all the filings in this case; 2 the log documents that Plaintiff’s alleged April 19, 2023 response was not filed on 3 CM/ECF. Id. at 4. Ms. Hansen also provided a copy of the AHCC policy titled 4 Legal Access for Incarcerated Individuals, which states that when a court sends an 5 electronic notice, the notice and document are distributed to staff to deliver to the 6 inmate. Id. at 2, 16. The policy also indicates that electronically filed cases will be 7 scanned by the Law Library Supervisor. Id. at 16. 8 9 As Plaintiff has had 25 legal documents copied or scanned since January 2022, Plaintiff should be familiar with the process by which documents are 10 scanned and e-filed. He contends he provided the documents and copy request to 11 staff, who then scanned them. ECF No. 37 at 8. However, the copy request form 12 does not show the number of pages scanned. Id. at 13. Mr. Christenson does not 13 have a copy of the request form, never signed the form indicating it was 14 completed, and does not have any emails regarding the request. ECF No. 39. 15 Plaintiff concedes he never received a receipt of the filing, ECF No. 37, and he did 16 not follow up on the filing until after this Court dismissed the case. 17 Plaintiff’s reply to Defendants’ response contends the AHCC staff could 18 have accidentally emailed the scan to the wrong person and could have misrouted 19 the scan request form. ECF No. 44 at 2. If both the email and the form were 20 misrouted, Plaintiff contends there would be no proof he requested the documents ORDER - 6 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.623 Page 7 of 20 1 be scanned and filed. Id. at 2-3. He also contends the scan request form was 2 signed by a staff, Kerr; however, the signature was verified by a different staff, 3 McCains, according to Plaintiff. ECF No. 44 at 3. There is no corroboration that 4 the document was scanned by Kerr. 5 There is thus no corroboration for Plaintiff’s allegation that he submitted the 6 documents for e-filing on April 19, 2023. Plaintiff therefore asks the Court to 7 consider his response that appears to have been submitted for the first time on June 8 20, 2023, almost two months after the deadline. The Court need not consider an 9 untimely response under Rule 59(e), as such motion cannot be used to raise 10 arguments or present evidence that could have been presented earlier in the 11 proceedings. See Zimmerman, 255 F.3d at 740; see also Robinson v. Waterman, 1 12 F.4th 480 (7th Cir. 2021). 13 Even if the Court considered Plaintiff’s untimely response, Plaintiff has 14 failed to demonstrate the initial decision was erroneous or manifestly unjust for the 15 reasons discussed infra. 16 17 A. First Amendment Plaintiff contends the Court should have considered his response to the 18 motion, and the emails which demonstrate Defendants did not have an agreement 19 between AHCC and Eastern Washington University that called for AHCC to 20 screen submissions for undesirable content. ECF No. 37 at 5. Plaintiff contends ORDER - 7 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.624 Page 8 of 20 1 “[t]he question in this summary judgment is . . . whether there was a written 2 agreement between AHCC and EWU authorizing Wise to exercise content 3 discretion as a proxy for the publisher?” Id. at 25. This is not the question 4 presented on summary judgment. 5 This Court found Defendants met their burden and demonstrated there was 6 an absence of a genuine dispute of material fact. ECF No. 35. The burden was 7 then on Plaintiff to demonstrate by affidavits, depositions, answers to 8 interrogatories, or admission on file “specific facts showing that there is a genuine 9 [dispute of material fact] for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 10 (1986). The question is whether Plaintiff has presented a genuine dispute of 11 material fact. Plaintiff has failed to do so. 12 Plaintiff contends he “supplied considerable evidence disputing every 13 material fact.” ECF No. 37 at 37. The evidence supplied by Plaintiff is largely 14 evidence previously submitted to the Court, including the course syllabus, the kite 15 response from Defendant Wise, the letter from Plaintiff to Ms. Wilson, the 16 publication agreement, a copy of Plaintiff’s story, the letters to and from Defendant 17 Key, the volunteer guidebook, DOC policy 530.100, a description of Defendant 18 Wise’s position, and notes from a discussion with Mr. Martin. ECF No. 37-1. The 19 Court declines to readdress the evidence previously considered and addressed in 20 the June 2023 Order. ORDER - 8 Case 2:22-cv-00136-MKD 1 ECF No. 45 filed 09/26/23 PageID.625 Page 9 of 20 Plaintiff also submitted additional emails, a copy of the relevant published 2 InRoads edition, an April 2023 declaration from Plaintiff, and an October 2022 3 declaration from Michael Lauderdale. Id. Plaintiff contends the emails 4 demonstrate there was no agreement for AHCC to pre-screen the submissions, and 5 Plaintiff’s declaration states Natalie, who “runs the WITC program,” told him in 6 October 2022 that there were no screening criteria or directives given to AHCC 7 regarding excluding submissions, and that AHCC did not have authority to 8 determine what was published in InRoads. ECF No. 37 at 5; ECF No. 37-1 at 193. 9 Mr. Lauderdale’s statement also indicates he does not recall any rules being 10 distributed, and that submissions were to be routed through Defendant Wise, at her 11 direction. ECF No. 37-1 at 21-22. However, as discussed in the June Order, even 12 if a written agreement does not give AHCC authority to determine what is 13 published in InRoads, there was a publication agreement, volunteer agreement, and 14 DOC policies that supported Defendants’ decision to not allow Plaintiff to submit 15 his piece for publication. See ECF No. 35. Plaintiff’s contention that a WITC staff 16 stated AHCC does not have authority to determine what is published in InRoads 17 does not change the Court’s analysis; Defendants have never alleged that they had 18 final authority to determine what is published in InRoads, but rather that they have 19 authority to determine what is submitted by individuals participating in the 20 program in their prison. ORDER - 9 Case 2:22-cv-00136-MKD 1 ECF No. 45 filed 09/26/23 PageID.626 Page 10 of 20 Plaintiff focuses on whether a written agreement exists that specifically 2 empowered Defendant Wise to pre-screen the submissions for InRoads. ECF No. 3 37. Plaintiff does not point to any case law that requires a written agreement 4 between a program run by volunteers in a prison and the prison, for the prison to be 5 able to exercise authority over a program in its own facility. Plaintiff also contends 6 that AHCC has no authority to pre-screen submissions for any reason except to 7 ensure they comply with specific DOC policies and contends WITC has full 8 authority to determine what is published. Id. at 22, 25. However, Plaintiff’s 9 contention that a volunteer program has full authority over what inmates can send 10 outside the prison through its program would run afoul of precedent and public 11 policy. Prison officials are given deference in day-to-day prison operations; it is 12 the prison administrators who make the difficult judgments concerning institutional 13 operations. Turner v. Safley, 482 U.S. 78, 84-85, 89 (1987). As such, the burden 14 cannot be placed on volunteers, such as the college students teaching in WITC, to 15 ensure that any actions they take do not compromise a legitimate penological 16 interest in the prison. While WITC can determine its own publishing criteria once 17 they receive a submission for publication in InRoads, WITC has no authority to 18 determine what inmates may send out of the prison through its volunteer program. 19 DOC policy explicitly prohibits volunteers from accepting correspondence from 20 offenders and prohibits volunteers from taking items from inmates out of the ORDER - 10 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.627 Page 11 of 20 1 prison or communicating with offenders via mail without approval. ECF No. 37-1 2 at 86, 101. 3 Further, AHCC had important government interests unrelated to suppression 4 of expression when regulating the submissions. ECF No. 35. at 17-20. Plaintiff 5 contends AHCC did not have a legitimate interest, but rather that Defendant Wise 6 would not allow the story to be submitted because of her own personal religious 7 views. ECF No. 37 at 23-24. Plaintiff previously made the same argument and 8 relies on the same evidence to support the contention, therefore the Court has 9 considered and rejected this argument. See ECF No. 35. 10 Next, Plaintiff contends his status as a sex offender is not a material fact, and 11 that policies apply generally to all inmates regardless of their conviction. ECF No. 12 37 at 25. However, restrictions on sexually explicit material are heightened when 13 involving a sex offender. Grenning v. Klemme, 34 F. Supp. 3d 1144, 1155 (E.D. 14 Wash. 2014) (citing Bahrampour v. Lampert, 356 F.3d 969, 979 (9th Cir. 2004)). 15 The Court also affords the prison discretion in determining impermissible sexual 16 material. Turner, 482 U.S. at 84-85. Additionally, protection of the public is a 17 legitimate penological interest. Overton v. Bazzetta, 539 U.S. 126, 133 (2003). 18 Plaintiff also contends that parents were warned the publication would 19 include age-inappropriate material. ECF No. 37 at 25. Plaintiff appears to believe 20 his submission met WITC submission guidelines and was appropriate for children ORDER - 11 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.628 Page 12 of 20 1 to read, because books like “Twilight” are aimed at children and contain sexual 2 content, and because sex education starts in the fourth grade due to ignorance 3 about sex being determinantal to mental health. ECF No. 37-1 at 214. Plaintiff is 4 not similarly situated to an elementary school teacher nor an author of young adult 5 books; rather, he is subject to the reasonable limitations imposed by AHCC 6 pursuant to their legitimate penological interests. There is also no evidence parents 7 were warned that individuals convicted of sex crimes against children may be 8 publishing stories addressing sex in a publication disseminated to their children. 9 As discussed in the June Order, a sex offender being allowed to submit a story for 10 publication to children that contains sexual content reasonably could cause 11 negative publicity for the facility; that negative publicity could reasonably reach 12 back to the inmates and cause negative behaviors in the inmate population. ECF 13 No. 35 at 19. Defendants have demonstrated a legitimate penological interest that 14 was reasonably applied to Plaintiff. 15 Next, Plaintiff contends the regulation of the submission was not content- 16 neutral and thus violated Turner. ECF No. 37 at 29-30. However, the burden “is 17 not on the State to prove the validity of prison regulations but on the prisoner to 18 disprove it.” Overton, 539 U.S. at 132. Further, Plaintiff misconstrues the content- 19 neutrality requirement. Content neutral under Turner “is not the ‘content 20 neutrality’ we demand in the other areas of First Amendment Jurisprudence.” ORDER - 12 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.629 Page 13 of 20 1 Jones v. Slade, 34 F.4th 1124, 1135 (9th Cir. 2022). Under Turner, a regulation is 2 neutral if it applies to specific types of materials “solely on the basis of the 3 materials’ potential effect on the prison’s legitimate objectives.” Mauro v. Arpaio, 4 188 F.3d 1054, 1059 (9th Cir. 1999); Bahrampour, 356 F.3d at 976. As discussed 5 supra, Defendants identified reasons for restricting Plaintiff’s submission that were 6 related to the materials’ potential effect on the prison’s legitimate objectives. 7 There must be a rational relationship between the restriction and the interest, and 8 the inquiry is highly deferential; to invalidate a regulation, the court must 9 determine “the logical connection between the regulation and the asserted goal is 10 so remote as to render the policy arbitrary or irrational.” Turner, 482 U.S. at 89- 11 90. A court may uphold a regulation even if prison officials are unable to “prove 12 that the banned material actually caused problems in the past, or that the materials 13 are ‘likely’ to cause problems in the future,” and the officials need not demonstrate 14 that the policy in fact advances the prison’s interests- it is enough that officials 15 “might reasonably have thought that the policy” would do so. Mauro, 188 F.3d at 16 1060. Defendants have presented a reasonable explanation for the connection 17 between the regulation and the asserted goal, and Plaintiff has not proven that the 18 regulation is invalid. 19 20 The Court notes that policies restricting sexual content in prisons have been upheld in numerous cases in the Ninth Circuit. See, e.g., id. at 1063 (upholding ORDER - 13 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.630 Page 14 of 20 1 restriction on possessing sexually explicit materials in the prison); Bahrampour, 2 356 F.3d at 979 (upholding prohibition on inmates possessing sexually explicit and 3 role-playing materials); Fabricant v. Shartle, No. CV-15-00236-TUC-JGZ, 2018 4 WL 11265152, at *10 (D. Ariz. Mar. 27, 2018) (upholding prohibition of sexually 5 explicit materials in prison); Prison Legal News v. Ryan, 39 F.4th 1121 (9th Cir. 6 2022) (upholding most policies concerning regulation of sexually explicit 7 publications in the prison); Vanaman v. Molinar, No. CV 17-00222-TUC-JCH, 8 2021 WL 613466, at *12 (D. Ariz. Jan. 29, 2021), aff’d, No. 21-15260, 2022 WL 9 2751539 (9th Cir. July 14, 2022), and motion for relief from judgment denied, No. 10 CV-17-00222-TUC-JCH, 2023 WL 2585297 (D. Ariz. Mar. 21, 2023) (upholding 11 restriction on inmates convicted of sex offenses possessing materials that have 12 pictures of partially clothed children); Bland v. Pierson, et al., No. 13 220CV01165DADDMCPC, 2023 WL 5998978, at *1 (E.D. Cal. Sept. 15, 2023) 14 (upholding restriction prohibiting “materials that appeal to deviant sexual groups 15 or conduct in which one of the participants is a minor and appears to be under 18 16 years of age”). While Plaintiff contends his story should not have been restricted 17 due to sexual content, ECF No. 37 at 23, Defendants’ restriction is in line with 18 many other prisons’ restrictions that have been upheld. 19 20 While Plaintiff lists “facts in dispute,” his contentions do not set forth a genuine issue of material fact. ECF No. 37 at 25-26. For example, Plaintiff ORDER - 14 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.631 Page 15 of 20 1 disputes the fact that his conviction is material, and that the sensitivity of the 2 readers of InRoads is a relevant factor and contends it was stated without context. 3 Id.; ECF No. 37 at 45. For the reasons discussed herein, Defendants reasonably 4 considered both facts. Plaintiff contends Defendants made conclusory statements 5 about behavioral standards and expectations and have not specified what 6 guidelines Plaintiff could have violated. Id. Defendants provided a copy of the 7 syllabus, which states writers “[a]re expected to adhere to all DOC/AHCC 8 behavioral standards in both their writing and in class. Students are already aware 9 of what these standards and expectations are, but if you have questions, please 10 contact Community Partnership Program Coordinator Ms. Wise.” ECF No. 27-2 at 11 2. The syllabus also states, “[i]Inappropriate content or conduct will be reported.” 12 Id. at 3. Thus, the syllabus establishes Plaintiff should be familiar with the 13 standards and expectations and had an opportunity to seek clarification if needed. 14 His declaration that he now is not aware of what standards he may have violated 15 does not create a disputed material fact. 16 Plaintiff also offers his own interpretations of facts, stating Defendants set 17 forth facts without context. ECF No. 37 at 47. Plaintiff contends he was only 18 informed in class that Defendant Wise screened submissions to determine if they 19 violated DOC policies, and he was not informed Defendant Wise would pre-screen 20 the submissions using the WITC screening criteria. Id. However, even with ORDER - 15 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.632 Page 16 of 20 1 Plaintiff’s added context, there is no disputed material fact. It is well-established 2 Defendant Wise had the ability to screen the submissions, and the class was 3 informed of the screening. 4 Plaintiff also submitted emails that support Defendants’ contentions. While 5 WITC volunteers did not tell Plaintiff to omit anything from his story draft, one of 6 the instructors, Kevin, noted “I also recall other allusions to more violent sexual 7 behavior in that workshop . . . which made me inappropriately lenient toward 8 passages like [Plaintiff’s].” ECF. No. 37-1 at 82. Another instructor, Clare, noted 9 “even if Ann had approved the piece in question to be submitted to InRoads, the 10 managing editors and I would most likely not have approved it after that (or only 11 with cuts). It’s just that [Plaintiff] had apparently misunderstood certain things 12 about how WITC/InRoads works, so he somehow ended up thinking that we had 13 venues were stories with adult content could be published without exposing 14 minors.” Id. at 81-82. Defendant Wise also clarified, “[b]ehavior standards would 15 include no writings with violent sexual behavior, explicit sexual behavior and any 16 criminological behavior. Anything that would not be accepted for publication 17 should not be read out loud in class . . .” Id. at 80. The email communications 18 suggest that preexisting standards were put in place by AHCC, and that some 19 WITC volunteers were not following the rules during all class sessions. The 20 emails also suggest Plaintiff’s submission did not comply with AHCC behavior ORDER - 16 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.633 Page 17 of 20 1 standards, nor WITC’s publication standards, and the emails confirm Defendant 2 Wise was required to review and approve submissions. Thus, the emails support 3 Defendants’ contentions, and do not raise a genuine issue of material fact as 4 Plaintiff contends. 5 Plaintiff contends he had a clearly established right to generate his creative 6 writing and send it to EWU. ECF No. 37 at 27-28. However, as discussed supra, 7 the WITC volunteers were required to abide by AHCC policies, including a 8 prohibition from taking materials outside of the prison from inmates and from 9 accepting mail from inmates. Further, Plaintiff was informed that his submission 10 had to be sent through Defendant Wise. ECF No. 27-2 at 4. Plaintiff also had the 11 opportunity to submit his piece to other publications. ECF No. 35 at 20. 12 Defendant Wise informed Plaintiff his submission was not appropriate to submit 13 for InRoads. ECF No. 37-1 at 7. Thus, Plaintiff did not have a right to submit the 14 piece when doing so was conflicted with AHCC’s legitimate penological interests. 15 Plaintiff has not met his burden in demonstrating there is a genuine issue of 16 17 18 material fact as to the First Amendment claim. B. Retaliation Plaintiff contends Defendant Key’s April 2019 letter establishes a retaliation 19 claim. ECF No. 37 at 32. This Court found Defendants met their burden and 20 demonstrated there was an absence of a genuine dispute of material fact. ECF No. ORDER - 17 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.634 Page 18 of 20 1 35. As discussed supra, the burden was then on Plaintiff to demonstrate by 2 affidavits, depositions, answers to interrogatories, or admission on file “specific 3 facts showing that there is a genuine [dispute of material fact] for trial.” Celotex 4 Corp., 477 U.S. at 323. Plaintiff has failed to do so here. 5 As discussed supra, Plaintiff was aware of the requirements of the WITC 6 program, including the need to submit the piece to Defendant Wise for screening. 7 He was also aware of the requirement that he abide by all AHCC policies. As 8 discussed in the June Order, Plaintiff violated established policy, and Defendant 9 Key’s response to Plaintiff occurred prior to Plaintiff filing a grievance. ECF No. 10 35 at 23. Plaintiff contends he has set forth evidence that presents a genuine issue 11 of material fact as to the prison officials’ motive for adverse action. ECF No. 37 at 12 32-33. However, the threat of removing Plaintiff from WITC was not sufficient to 13 establish a retaliation claim. ECF No. 35 at 23. The remainder of Plaintiff’s 14 contentions rest on a finding that Defendant Key’s letter was a retaliatory action, 15 thus Plaintiff has failed to present a genuine issue of material fact as to the 16 retaliation claim. 17 18 C. Qualified Immunity Plaintiff contends Defendants were not entitled to qualified immunity. ECF 19 No. 37 at 37. Plaintiff contends Defendants should have known they were 20 violating his First Amendment rights in censoring him due to their concern for ORDER - 18 Case 2:22-cv-00136-MKD ECF No. 45 filed 09/26/23 PageID.635 Page 19 of 20 1 negative publicity. Id. at 37-39. However, as discussed supra, Defendants did not 2 violate Plaintiff’s rights, and Defendants offered a legitimate penological interest 3 that required they not allow Plaintiff to submit a piece containing inappropriate 4 content for consideration for publication and distribution to children. As discussed 5 in the June Order, Plaintiff has not established it should have been evident to 6 Defendants they were violating Plaintiff’s rights. ECF No. 35 at 23. Thus, even if 7 Defendants had violated Plaintiff’s rights, they would be entitled to qualified 8 immunity. 9 10 CONCLUSION Plaintiff has not demonstrated that he timely submitted his response to the 11 Motion for Summary Judgment, and therefore has not demonstrated that the Court 12 should consider his response. Further, even if the Court considered Plaintiff’s 13 response, Plaintiff has not demonstrated a genuine issue of material fact and 14 therefore has not demonstrated the June Order was clearly erroneous or manifestly 15 unjust. Therefore, the Court declines to vacate the June Order. 16 Accordingly, IT IS HEREBY ORDERED: 17 1. Plaintiff’s Motion to Vacate and Set Aside Judgment, ECF No. 37, is 18 DENIED. 19 20 ORDER - 19 Case 2:22-cv-00136-MKD 1 ECF No. 45 filed 09/26/23 PageID.636 Page 20 of 20 IT IS SO ORDERED. The District Court Executive is directed to enter this 2 Order and provide copies to counsel and pro se Plaintiff. 3 DATED September 26, 2023. s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 4 5 6 + 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 20
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