Wilson v. Poor

1

MARIO WILSON, Plaintiff, v. RICHARD POOR, Defendant.

No. C19-5920 BHS-TLF

United States District Court, W.D. Washington, Tacoma

February 28, 2022

Noted for March 18, 2022

REPORT AND RECOMMENDATION

THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on defendant's motion for summary judgment and motion to dismiss (Dkt. 42) and plaintiff's cross-motion for summary judgment (Dkt. 57). This matter has been referred to the undersigned Magistrate Judge. Mathews, Sec'y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4). For the reasons set forth below, the Court should GRANT defendant's motion for summary judgment on plaintiff's religious access claim (Dkt. 42), DENY defendant's motion to dismiss plaintiff's retaliation claim (Dkt. 42) and DENY plaintiff's cross-motion for summary judgment (Dkt. 57).

FACTUAL BACKGROUND

Plaintiff's amended complaint brings claims against defendant in his individual and official capacity for alleged constitutional violations while plaintiff was housed at Stafford Creek Corrections Center. Dkt. 37, Amended Complaint. Plaintiff alleges that on May 5, 2019, plaintiff requested to receive food at a specific time -- in order properly conform to the requirements of plaintiff's religion -- by fasting during daylight hours during Ramadan. Dkt. 37 at 2. Plaintiff contends that defendant became enraged and interrupted plaintiff. Dkt. 37 at 3. Next, plaintiff contends that he threatened to file a grievance against defendant for refusing to feed plaintiff and that defendant responded by threatening to physically harm plaintiff. Dkt. 37 at 3. The amended complaint also contends defendant retaliated against plaintiff by sending plaintiff back to his living unit. Dkt 37 at 3.

In support of the amended complaint, plaintiff submitted affidavits from people who witnessed the occurrences of May 5, 2019. Dkt. 37 at 8-14. Michael A. Smith stated that he observed plaintiff and defendant in a disagreement regarding when Ramadan officially commenced and that defendant raised his voice at plaintiff. Dkt. 37, Affidavit of Michael A Smith, at 8. Teddy Lee Vickers reported that he observed defendant tell another correctional officer that if plaintiff was not removed from the kitchen defendant would physically harm plaintiff and that the other officer removed plaintiff back to the living unit. Dkt. 37, Affidavit of Teddy L. Vickers, at 10-11. Michael Johnson and Gary Martin stated that they observed defendant yell at plaintiff and physically threaten plaintiff before plaintiff returned to his living unit. Dkt. 37, Affidavit of Michael Johnson, at 13; Dkt. 37, Affidavit of Gary A Martin, at 14.

Plaintiff also submitted the grievance interview of Keith Crovisier, a Department of Corrections Employee. Dkt. 37, Grievance Interview Notes, at 16. Mr. Crovisier stated that he observed plaintiff and defendant in an argument over meals and that defendant yelled at plaintiff and appeared agitated. Dkt. 37 at 16.

In response to plaintiff's grievance regarding defendant's conduct, Superintendent R. Haynes stated that the investigation of the incident found insufficient evidence to substantiate plaintiff's claims and declined to take any further action. Dkt. 37, Level II Grievance Response, at 20. In response to plaintiff's grievance appeal, C. Headley, Manager of Security Operations, responded: “[e]mployees are expected to treat incarcerated individuals with dignity and respect. In this case you should have been provided with an appropriate professional response. This information will be shared with the facility Superintendent for follow up with the employees.” Dkt. 37, Level III Grievance Response, at 22.

DISCUSSION

A. Plaintiff's Motion for Extension of Time

Plaintiff filed a motion for extension of time to respond to defendant's motion for summary judgment and motion to dismiss. Dkt. 56. Plaintiff subsequently filed a cross-motion and response to defendant's motion (Dkt. 57) and defendant has filed a response (Dkt. 65). Accordingly, the Court should DENY plaintiff's motion for extension of time as moot.

B. Request for Judicial Notice

Plaintiff has filed two motions for judicial notice. Dkt. 54, 55. Plaintiff's first motion for judicial notice requests that the Court take judicial notice of: 1) the statutory language of Washington Revised Code Section 4.22.070, 2) the statutory language of Federal Rule of Civil Procedure 33(b)(3)(5), and 3) Plaintiff's First Set of Interrogatories and Defendant's Response and Objections. Dkt. 54. Plaintiff's second motion for judicial notice requests that the Court take judicial notice of: 1) the statutory language of Article I Section 6 of the Washington State Constitution; 2) the statutory language of 18 U.S.C. § 1621; and 3) the statutory language of Federal Rule of Civil Procedure 33(b)(3)(5).

Under Rule 201 of the Federal Rules of Evidence, the district court may take notice of an adjudicative fact if it is “not subject to reasonable dispute”; this test is satisfied if the fact is “generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b)(1)-(2). The Court may not resolve disputes of fact or take notice of disputed facts that exist in documents that are subject to judicial notice. Kohja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018).

The Court should deny plaintiff's request to take judicial notice of the statutory language of the Washington Revised Code, the Federal Rules of Civil Procedure, the Washington State Constitution, and 18 U.S.C. § 1621. Judicial notice of legislative facts, such as the applicability of a statute is unnecessary. Von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016, 1021-22 (9th Cir. 2009) (citing Toth v. Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002) (“[J]udicial notice is generally not the appropriate means to establish the legal principles governing the case.”).

Additionally, the Court should deny plaintiff's motion to take judicial notice of defendant's discovery responses. Discovery requests and responses are not subject to judicial notice because they are not “self-authenticating” and cannot be verified. United Safeguard Distribs. Ass'n v. Safeguard Bus. Sys., 145 F.Supp.3d 932, 942 (C.D. Cal., 2015).

C. Defendant's Motion for Summary Judgment

Defendant's motion for summary judgment requests that the Court dismiss plaintiff's religious access claim for failure to exhaust administrative remedies.

Summary judgment is supported if the materials in the record “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Federal Rule of Civil Procedure (FRCP) 56 (a), (c). The moving party bears the initial burden to demonstrate the absence of a genuine dispute of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine dispute concerning a material fact is presented when there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In this context, materiality means the fact is one that is “relevant to an element of a claim or defense and whose existence might affect the outcome of the suit”; thus, materiality is “determined by the substantive law governing the claim.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

The non-moving party is required to show that genuine issues of material fact “‘can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'” California Architectural Building Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (quoting Anderson, 477 U.S. at 250) (emphasis in original)). When the Court considers a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [their] favor.” Anderson, at 255. Yet the Court is not allowed to perform the jury's function - the Court may not weigh evidence, draw legitimate inferences from facts, or decide credibility. Id.

If the moving party meets their initial burden, an adverse party may not rest upon the mere allegations or denials of his pleading; his or her response, by affidavits or as otherwise provided in FRCP 56, must set forth specific facts showing there is a genuine issue for trial. FRCP 56(c). The Court may not disregard evidence solely based on its self-serving nature. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015). “The district court can disregard a self-serving declaration that states only conclusions and not facts that would be admissible evidence.” Id.

In order to comply with the exhaustion requirement of the PLRA, a plaintiff must exhaust each of the claims raised in the complaint. Jones v. Bock, 549 U.S. 199, 219 (2007); Cleveland v. Anderson, 223 Fed.Appx. 652, 652 (9th Cir. 2007). The record shows that plaintiff has not exhausted all available remedies for plaintiff's claims that defendant denied plaintiff's right to practice protected religious activities such as receiving a Ramadan meal and praying. Plaintiff's allegations regarding defendant refusing plaintiff food and interfering with plaintiff's religious practices were raised in the unexhausted 19678415 Grievance. Plaintiff withdrew this grievance because the issue had been remedied.

The Prison Litigation Reform Act (“PLRA”) requires exhaustion of administrative remedies prior to filing a complaint in federal court. The PLRA states:

No action shall be brought with respect to prison conditions under [42 U.S.C. §

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