Gray v. Neb. Dep't of Corr. Servs.

GRAYLIN GRAY, APPELLANT, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES ET AL., APPELLEES.

No. A-16-1218.

NEBRASKA COURT OF APPEALS

May 1, 2018

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Johnson County: DANIEL E. BRYAN, JR., Judge. Affirmed.

Graylin Gray, pro se.

Douglas J. Peterson, Attorney General, and James D. Smith for appellees.

PIRTLE, BISHOP, and ARTERBURN, Judges.

BISHOP, Judge.

INTRODUCTION

Graylin Gray, an inmate at the Tecumseh State Correctional Institution (TSCI), filed a complaint for retaliation against several defendants in the district court for Johnson County. Some defendants were dismissed in a prior action. In the present matter, Gray appeals, pro se, from the district court's order granting summary judgment in favor of the remaining defendants and dismissing Gray's action entirely. We affirm.

BACKGROUND

Gray did not provide a copy of his complaint in the record for this appeal; accordingly, we take judicial notice of Gray v. Nebraska Department of Correctional Services, No. A-14-254, 2015 WL 1243027 (Neb. App. March 17, 2015) (selected for posting to court website) to provide context for the present appeal. Gray filed a complaint pursuant to 42 U.S.C. § 1983 (2012) against: the Nebraska Department of Correctional Services (DCS); Robert P. Houston (Director of DCS); Frank X. Hopkins (Deputy Director of Institutions); Brian Gage (Warden of TSCI); Aaron Rule, Jason Taylor, John LeDuc, and Dustin Schultz (Case Managers at TSCI); Caralee Barker (Case Worker at TSCI); and Dennis Rader and Jason Krauss (Correctional Officers at TSCI). Gray alleged he was suing each named individual in their official and individual capacities. He claimed the defendants engaged in retaliatory conduct against him because he exercised his right to seek redress from the prison through the use of a civil action complaint, tort claim, and grievance procedures. The alleged retaliatory conduct included room restrictions, denial of access to the law library, denial of toilet paper, excessive cell searches which left his cell in disarray, and misconduct reports being filed against him. Gray sought money damages as well as declaratory and injunctive relief.

A motion to dismiss was filed on behalf of all of the defendants alleging that Gray had failed to state a claim upon which relief could be granted. After a hearing, the district court dismissed Gray's entire complaint, concluding all of Gray's claims were either barred by sovereign immunity or failed to state a claim for which relief could be granted. Gray appealed, and this court affirmed the dismissal as to DCS and all named individuals in their official capacities. We also affirmed the dismissal of Gray's action against Houston, Hopkins, Gage, and Rule in their individual capacities. However, we concluded the district court erred in dismissing Gray's claims against Taylor, Barker, LeDuc, Rader, Krauss, and Schultz in their individual capacities because Gray had stated a claim that did more than make conclusory allegations that those defendants retaliated against him for engaging in protected conduct. We reversed and remanded the cause for further proceedings against Taylor, Barker, LeDuc, Rader, Krauss, and Schultz ("remaining defendants") in their individual capacities.

On June 22, 2015, following the remand of this court's decision discussed above, the remaining defendants filed a motion for summary judgment as to the remaining claims against them in their individual capacities. In support of the motion for summary judgment, the defendants sought to submit, among other exhibits, an excerpt from TSCI's "Post Orders" (exhibit 1). The remaining defendants also filed a motion for a protective order of that exhibit, requesting that the exhibit "be reviewed by the Court in camera, and not [be] filed with the clerk or be served upon [Gray]" because "[i]t is not made available to inmates or the general public." The exhibit contains, in relevant part, two pages of TSCI policy regarding the frequency, procedure, timing, and objective of "Room Searches."

On August 10, 2015, a telephonic hearing took place during which several motions were addressed, including the defendants' motion for a protective order for exhibit 1. Over Gray's objection, the district court agreed to a protective order for the exhibit. The court stated the exhibit was going to be considered by the court for purposes of summary judgment, but "it's not something that's going to be divulged to either you or to any other inmates or to the general public." Gray argued he was entitled to see any information upon which the court would be relying to make its decision based on the rules of civil procedure. The district court indicated it understood Gray's argument and the conflict in the civil procedure rules. However, the court explained "basically what trumps them is the State statute and the confidential nature," and stated it would grant the defendants' motion for protective order. The defendants' attorney was directed to prepare andsubmit the protective order with the exhibit. (A written order granting the protective order for exhibit 1 was not entered until February 25, 2016.)

Also during the August 10, 2015, telephonic hearing, the defendants' motion for summary judgment was argued. The district court entered an order on August 11, denying that motion. The court's order stated that because it had previously stayed discovery by Gray, the motion was "premature until [Gray's] discovery [was] completed and he [was given] the opportunity to submit any and all evidence at his disposal."

On December 28, 2015, the remaining defendants again filed a motion for summary judgment. A hearing was held on February 22, 2016. In an order entered on February 25, the district court stated that Gray filed an action under 42 U.S.C. § 1983 for violation of his First Amendment rights under the United States Constitution; namely, that the defendants retaliated against him for seeking redress from the prison by filing a civil action complaint and a tort claim, and his use of the prison grievance system. The order went on to say that Gray was requesting a permanent injunction against the defendants to cease their retaliation against him, as well as a request for compensatory and punitive damages. The order pointed out the previous denial of the defendants' motion for summary judgment because discovery was not yet complete. Now finding that discovery was complete, the district court found the following facts to be undisputed with regard to Gray's complaint (we set them out in detail since we do not have Gray's complaint in the record before us, and these factual findings explain the dismissal of certain defendants at this point in time):

1. [Gray] at all relevant times was an inmate of [DCS] residing at [TSCI] in Johnson County, Nebraska.

2. Between April of 2013 and July of 2013, the Defendants searched [Gray's] cell on ten separate occasions.

3. The TSCI Post orders require that every inmate's cell be searched a minimum of twice per month.

4. TSCI staff are trained to leave an inmate's cell in essentially the same condition as found prior to the search.

5. The condition of [Gray's] cell after each search is disputed by the parties.

6. On June 2, 2013, at 8:00 a.m., [Gray] had his designated shower time.

7. Later that day, on June 2, 2013, at 1:10 p.m., [Gray] pushed the call button in his cell to request extra toilet paper.

8. [Gray] asked Defendant Barker for extra toilet paper at this time.

9. Defendant Barker informed [Gray] he could not obtain extra toilet paper at that time because it was not a designated supply time.

10. Designated supply times [are] times when [Gray] can pick up extra toilet paper. These times are outlined . . . [in] TSCI's inmate handbook, which states: Supplies from the Control Center . . . may be obtained during approved scheduled time out of the cell, [such as] [s]howers, phone time, cell cleaning and dayroom.

11. [Gray] had previously received a copy of the handbook.

12. [Gray] was eventually allowed to obtain extra toilet paper during second shift on June 2, 2013.

13. On June 2, 2013, second shift began at 2:00 p.m. and lasted until 10:00 p.m.14. On December 18, 2009, [Gray] purchased a television from another inmate. [Gray] wrote that the serial number of this television was [***E4403]. [Gray] signed a registration form for this purchase.

15. Sometime in 2012, TSCI experienced a power cut.

16. The power cut meant that [Gray's] television would not work temporarily. [Gray] was not aware that there was a power cut and erroneously thought his television set was permanently broken.

17. On August 12, 2012, thinking his television set was broken, [Gray] completed and signed a property disposal form to dispose of his television set. On this form, [Gray] wrote that the serial number of this television was [***E4403].

18. This is the same serial number as indicated on his December 18, 2009[,] registration form.

19. The property disposal form was witnessed by Corporal Howell on August 14, 2012. Corporal Howell indicated that the television was disposed of and removed.

20. TSCI's internal records show that [Gray's] television set was disposed of on August 14, 2012.

21. On July 1, 2013, Defendant Taylor noticed that [Gray] still had a television set in his cell.

22. Defendant Taylor inspected [Gray's] television set; he noticed that the television was sanded down in many places. He also found that the serial number of the television was scratched away on the back.

23. Defendant Taylor found another area on the television set where the serial number had not been scratched off. The serial number for this television was [***E4562].

24. The serial number on the television Defendant Taylor inspected in 2013 was different than the serial number

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