Guillen v. Herzog et al, No. 4:2016cv05092 - Document 45 (E.D. Wash. 2017)
Court Description: ORDER Granting Defendants' Motion for Summary Judgment 36 . Signed by Senior Judge Edward F. Shea. (VR, Courtroom Deputy)**11 PAGE(S), PRINT ALL**(Jose Guillen, Prisoner ID: 876613)
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Guillen v. Herzog et al Doc. 45 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 No. JOSE SANCHEZ GUILLEN, 4:16-CV-5092-EFS 8 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 9 v. 10 11 ROBERT L. HERZOG and TIMOTHY THRASHER, Defendants. 12 13 14 Before the Court, without oral argument, is Defendants’ Motion 15 for Summary Judgment, ECF No. 36. 16 judgment be granted in their favor and that Plaintiff’s claims be 17 dismissed with prejudice. 18 Court deny the summary judgment motion and allow his case to proceed 19 to trial. ECF No. 41. 20 this matter, the Court is fully informed and grants Defendants’ Motion 21 for Summary Judgment. 22 // 23 // 24 // 25 // 26 // Defendants request that summary Plaintiff objects and requests that the Having reviewed the pleadings and the file in ORDER - 1 Dockets.Justia.com FACTS1 I. 1 2 Plaintiff is an inmate at the Washington State Penitentiary. The 3 parties agree that Plaintiff has been in Intensive Management Unit 4 (IMU) 5 inmate. At the time of the assault, Plaintiff was a member of the La 6 FUMA prison gang. See ECF No. 39-1. The victim of the assault was 7 recognized as the leader of the Paisa prison gang. ECF No. 39 at 3. custody Plaintiff 8 since 2009 claims based that on his Plaintiff’s continued assault placement of in another the IMU 9 violates his Eighth and Fourteenth Amendment rights. Plaintiff has 10 completed all of his Behavior Plan requirements and been infraction 11 free since 2009. See, e.g., ECF Nos. 23 at 2, 22-1 at 8. Plaintiff 12 also argues that he is no longer a member of the La FUMA gang. ECF 13 No. 13 at 2. 14 Defendants have conducted periodic reviews of Plaintiff’s status 15 pursuant to Washington Department of Corrections regulations. See ECF 16 No. 22-1; see also ECF No. 38-1. At those reviews, Defendants have 17 repeatedly 18 No. 22-1. 19 retaliation found that Defendants by Paisa continued represent gang IMU that members placement Plaintiff if he is is will justified. be released at to risk ECF of general 20 1 21 22 23 24 25 26 Along with their motion, Defendants submitted a statement of facts. ECF No. 37. Plaintiff did not submit a separate statement of facts, but he did include the basic factual background underlying his claims both in his response, ECF No. 41, and in other filings, see ECF Nos. 14, 19 & 23, and the Court considers those filings in adjudicating Defendants’ motion. When considering this motion and creating this factual section, the Court (1) believed the undisputed facts and the non-moving party’s evidence, (2) drew all justifiable inferences in the non-moving party’s favor, (3) did not weigh the evidence or assess credibility, and (4) did not accept assertions made by the non-moving party that were flatly contradicted by the record. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Scott v. Harris, 550 U.S. 372, 380 (2007). ORDER - 2 1 population and that his release could inspire increased violence by La 2 FUMA members because Plaintiff has become a “folk hero” in the La FUMA 3 gang. 4 Plaintiff will not be able to be released to general population in the 5 Washington 6 Plaintiff to an out-of-state facility. See ECF No. 38 at 3. Plaintiff 7 has resisted those attempts by writing to the out-of-state facilities 8 and encouraging them not to accept him. ECF No. 38-2. ECF No. 39 prison at system, II. 9 4. Because it Defendants is Defendants’ have attempted opinion to that transfer SUMMARY JUDGMENT STANDARD 10 Summary judgment is appropriate if the record establishes “no 11 genuine dispute as to any material fact and the movant is entitled to 12 judgment as a matter of law.” Fed. R. Civ. P. 56(a). The non-moving 13 party must point to specific facts establishing a genuine dispute of 14 material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 15 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 16 574, 586-87 (1986). In addition, when the non-moving party is pro se, 17 the 18 pleadings, where such contentions are based on personal knowledge and 19 set forth facts that would be admissible in evidence, and where [the 20 pro se party] attested under penalty of perjury that the contents of 21 the motions or pleadings are true and correct.” See Jones v. Blanas, 22 393 F.3d 918, 923 (9th Cir. 2004). If the non-moving party fails to 23 show a genuine dispute of material fact as to elements essential to 24 its case for which it bears the burden of proof, such that the moving 25 party is entitled to judgment as a matter of law, the trial court must 26 grant the summary judgment motion. Celotex Corp., 477 U.S. at 322. Court ORDER - 3 must consider all “contentions offered in motions and III. DISCUSSION 1 Section 1983 requires a plaintiff to prove (1) a person acting 2 3 under color of 4 plaintiff of a federally-protected right. Leer v. Murphy, 844 F.2d 5 628, 6 constitutional right, within the meaning of section 1983, if he does 7 an affirmative act, participates in another’s affirmative acts, or 8 omits to perform an act which he is legally required to do that causes 9 the 632-33 state law committed an (9th deprivation Cir. of v. which “A [the Duffy, person plaintiff 588 F.2d (2) deprived the deprives another complains].” 740, 743 (9th Id. of at Cir. a 633 10 (quoting 11 (alteration in original)(internal quotation marks omitted). Plaintiff 12 alleges that Defendants, acting under color of state law in their 13 positions as prison officials, deprived him of his rights under both 14 the Eighth and Fourteenth Amendments. 15 A. 1978)) Fourteenth Amendment To 16 Johnson 1988). act that state a claim under 42 U.S.C. § 1983 and the Fourteenth 17 Amendment, Plaintiff must establish that he suffered (1) deprivation 18 of a liberty interest, and (2) due process was not provided. See 19 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). In the 20 administrative segregation context, a federal liberty interest exists 21 only 22 significant 23 incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995). 24 This doctrine reflects the realities that individuals are stripped of 25 most privileges and rights when they are lawfully incarcerated and 26 prison officials must have wide discretion to safely and efficiently if ORDER - 4 the administrative hardship on the segregation inmate in was an relation to “atypical the and ordinary 1 manage a prison. Id. at 485; Wolff v. McDonnell, 418 U.S. 539, 556-58 2 (1974). 3 To determine whether the prison official’s action constituted an 4 “atypical and significant hardship on the inmate,” courts consider the 5 conditions of segregation and its duration. Sandin, 515 U.S. at 494; 6 see also Hutto v. Finney, 437 U.S. 678, 686–87 (1978). In Sandin, a 7 30-day term of segregation was insufficient to require due process 8 protection. Sandin, 515 U.S. at 486. The Second Circuit has determined 9 that when placement in segregated housing is longer than 305 days the 10 placement 11 incidents of prison life to require procedural due process protections 12 under Sandin.” Palmer v. Richards, 364 F.3d 60, 65 (2d Cir. 2004) 13 (internal quotation marks omitted). The Ninth Circuit has also held 14 that 15 inmates 16 continued segregation is appropriate because such a deprivation makes 17 segregation atypical. Brown v. Oregon Dep’t of Corrs., 751 F.3d 983, 18 988 (9th Cir. 2014). a constitutes Fourteenth are “a sufficient Amendment deprived of liberty periodic departure interest meaningful from may the be ordinary created reviews of when whether 19 The Supreme Court has indicated that, when there is a liberty 20 interest sufficient to implicate the Due Process Clause, “some sort of 21 periodic review” of confinement in segregated housing is necessary to 22 satisfy due process. Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983), 23 rejected on other grounds by Sandin, 515 U.S. 472; see also Wilkinson 24 v. Austin, 545 U.S. 209 (2005) (upholding Ohio’s system for placing 25 inmates 26 annual in high reviews ORDER - 5 of security, inmate restrictive status). The facilities, Court has which noted includes that this 1 periodic 2 statements, and continued placement in segregated housing may be based 3 on 4 general knowledge of prison conditions and tensions.” Id. The Ninth 5 Circuit has further explained, however, that a prisoner’s due process 6 rights will not be satisfied by “meaningless gestures.” Toussaint v. 7 McCarthy, 801 F.2d 1080, 1102 (9th Cir. 1986), abrogated on other 8 grounds by Sandin, 515 U.S. 472. “facts review does relating to not a necessarily particular require prisoner” new and evidence “the or officials’ 9 Here, the Court finds that Plaintiff’s due process rights are 10 implicated by his nearly eight-year confinement in the IMU, but that 11 due process has been satisfied in this case. The parties agree that 12 Plaintiff’s placement in IMU has been reviewed periodically. Plaintiff 13 suggests that these reviews are meaningless because the committee 14 continues to rely on the assault he committed in 2009 to justify 15 Plaintiff’s placement in the IMU, despite the fact that Plaintiff has 16 received no infractions since that time, has consistently completed 17 the requirements for his behavior plan, and asserts that he is no 18 longer a gang member. 19 Defendants explain that, while the committee continues to rely 20 on the 2009 assault to justify Plaintiff’s placement in the IMU, that 21 reliance is due to the fact that the assault continues to be relevant 22 to 23 Defendants note that Paisa gang members continue to cite the assault 24 as a reason why they will not negotiate with La FUMA, see ECF No. 39 25 at 3, and La FUMA members regard Plaintiff as a “folk hero” due to the 26 assault, ECF No. 39 at 4. Accordingly, Defendants represent that it is security ORDER - 6 concerns related to the Paisa and La FUMA gangs. 1 necessary to maintain Plaintiff in the IMU because he would be at risk 2 for attack by Paisa gang members if he 3 population and his release may also provoke or inspire violence by La 4 FUMA members. ECF No. 39 at 4. were released to general 5 Although there is an issue of fact as to whether Plaintiff is an 6 active gang member and whether Plaintiff would either be at risk or 7 would 8 population, 9 material. Defendants have afforded Plaintiff his due process rights by himself the present Court security finds that reviews of threat these if release issues Plaintiff’s of IMU to fact general are placement not 10 conducting 11 regular basis. There is no indication that Defendants have conducted 12 these reviews in bad faith. Accordingly, the Court finds that there 13 are no disputes of material fact regarding Plaintiff’s Fourteenth 14 Amendment claim. Defendants are entitled to judgment as a matter of 15 law. 16 B. 17 meaningful a on a Eighth Amendment To prove the Eighth Amendment alleged claim, deprivation is a plaintiff must “sufficiently first 18 establish 19 meaning that the “prison official’s act or omission must result in the 20 denial of ‘the minimal civilized measure of life’s necessities.’” 21 Farmer v. Brennan, 511 U.S. 825, 834 (1994)(quoting Rhodes v. Chapman, 22 452 U.S. 337, 347 (1981)). For a case regarding failure to prevent 23 harm in the prison environment, a plaintiff must demonstrate “that he 24 is incarcerated under conditions posing a substantial risk of harm.” 25 Id. A plaintiff must also establish that the prison official was 26 deliberately indifferent to his health or safety. Id. To prove this ORDER - 7 that an serious,” 1 element, a plaintiff must show that defendants knew of and disregarded 2 an excessive risk to inmate health or safety. Id. at 837. 3 Placement in solitary confinement is generally insufficient to 4 support an Eighth Amendment claim. See Toussaint v. Yockey, 722 F.2d 5 1490, 1494 n.6 (9th Cir. 1984) (“Even an indeterminate sentence to 6 punitive isolation does not without more constitute cruel and unusual 7 punishment.”). 8 confinement in prisons, Supreme Court Justice Kennedy has recognized 9 that “[y]ears on end of near-total isolation exact a terrible price.” 10 Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring) 11 (citing 12 Wash. 13 confinement include anxiety, panic, withdrawal, hallucinations, self- 14 mutilation, and suicidal thoughts and behaviors)). Still, Grassian, U.J.L. & in addressing Psychiatric Pol’y 325 the Effects (2006) of (common prevalence Solitary of solitary Confinement, side-effects of 22 solitary In this case, Plaintiff has produced no evidence that Defendants 15 16 have acted 17 Defendants have conducted meaningful reviews of Plaintiff’s placement 18 in 19 justifying Plaintiff’s continued placement in IMU is the risk of harm 20 to Plaintiff by Paisa gang members if Plaintiff were released into 21 general population. Thus, rather than being indifferent to a risk to 22 Plaintiff’s health or safety, it appears that Defendants have placed 23 Plaintiff 24 Plaintiff’s safety. This weighing of risks to Plaintiff from continued 25 placement in the IMU against risks to Plaintiff if he were placed in 26 general population is a proper function for prison administrators, the ORDER - 8 IMU. in with In the deliberate addition, IMU in indifference. Defendants part to As indicate avoid a discussed that one substantial above, reason risk to 1 rather than the Court. See Griffin v. Gomez, 741 F.3d 10, 20–21 (9th 2 Cir. 2014). Because Plaintiff cannot establish deliberate indifference 3 on the part of Defendants, his Eighth Amendment claim fails. 4 In addition, Plaintiff has failed to produce evidence that he is 5 incarcerated under conditions posing a substantial risk of harm. While 6 Plaintiff 7 effects of solitary confinement, see, e.g., ECF No. 23 at 4, and the 8 Court is aware of research suggesting negative psychological effects 9 due to solitary confinement, Plaintiff has not presented evidence that 10 he is currently suffering any psychological effects or that he is 11 likely to suffer such effects. has noted Accordingly, 12 that the he Court is concerned finds that about there the are no psychological disputes of 13 material fact and Defendants are entitled to judgment as a matter of 14 law regarding Plaintiff’s Eighth Amendment claims. 15 C. Qualified Immunity 16 Defendants also argue that, even if their actions did violate 17 Plaintiff’s rights, they are entitled to qualified immunity. A state 18 officer is entitled to qualified immunity and thereby protected from 19 § 1983 liability if he shows his “conduct does not violate clearly 20 established statutory or Constitutional rights of which a reasonable 21 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 22 (1982). A state officer is not protected by qualified immunity if his 23 conduct does violate a clearly established constitutional right. “The 24 relevant, 25 clearly established is whether it would be clear to a reasonable 26 officer that his conduct was unlawful in the situation he confronted.” ORDER - 9 dispositive inquiry in determining whether a right is 1 Phillips v. Hust, 588 F.3d 652, 657 (9th Cir. 2009) (quoting Saucier 2 v. Katz, 533 U.S. 194, 202 (2001)). “[I]f the defendants’ conduct is 3 so patently violative of the constitutional right that reasonable 4 officials would know without guidance from the courts’ that the action 5 was unconstitutional, closely analogous pre-existing case law is not 6 required to show that the law is clearly established.” 7 Block, 27 F.3d 1357, 1361 (9th Cir. 1994). Although the official’s 8 subjective intent is irrelevant, Anderson v. Creighton, 483 U.S. 635, 9 641 (1987), the information actually possessed by Mendoza v. the officer is 10 relevant to this determination. Hunter v. Bryant, 502 U.S. 224, 227 11 (1991) (per curiam). 12 As explained above, case law indicates that solitary 13 confinement, alone, does not violate the Eighth Amendment. Toussaint, 14 722 F.2d at 1494 n.6. Thus, Defendants are entitled to qualified 15 immunity regarding Plaintiff’s Eighth Amendment claim because it is 16 based on Plaintiff’ claim that continued solitary confinement, by 17 itself, violates his Eighth Amendment rights. 18 In addition, Supreme Court and Ninth Circuit law make clear that 19 solitary confinement is not a violation of Fourteenth Amendment due 20 process rights as long as the inmate is given meaningful, periodic 21 reviews. Hewitt, 459 U.S. at 477 n.9; Brown, 751 F.3d at 988. Because 22 Defendants 23 status, 24 constitutional right. Even if this Court or an appellate Court were to 25 find that the reviews of Plaintiff’s status were deficient in some 26 way, Defendants would be entitled to qualified immunity because it is provided their ORDER - 10 meaningful, conduct did not periodic reviews of Plaintiff’s clearly violate an established 1 not clear under the law precisely what is required for an adequate 2 review and there 3 Defendants’ 4 Defendants acted in bad faith or otherwise attempted to deny Plaintiff 5 the meaningful review required under the law. Accordingly, the Court 6 finds 7 matter. that is no review reason under current law inadequate. was Defendants to believe that indication are entitled IV. 8 There to is no qualified immunity in that this CONCLUSION 9 As reflected in the analysis above, the Court finds that there 10 are no genuine issues of material fact related to Plaintiff’s claims 11 and that Defendants are entitled to judgment as a matter of law. 12 Accordingly, IT IS HEREBY ORDERED: 13 1. Defendants Motion for Summary Judgment, ECF No. 36, is GRANTED. 14 15 2. Plaintiff’s claims are DISMISSED WITH PREJUDICE. 16 3. JUDGMENT shall be entered in favor of Defendants. 17 4. This case shall be CLOSED. 18 IT IS SO ORDERED. The Clerk’s Office is directed to enter this 19 Order, enter judgment in favor of Defendants, and provide copies to 20 Plaintiff and all counsel. 21 DATED this 23rd day of August 2017. 22 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 23 24 25 26 Q:\EFS\Civil\2016\6092.Guillen.summ.judg.lc02.docx ORDER - 11
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