Opinion
Civil No. 03cv0487 LAB(RBB).
February 8, 2006
REPORT AND RECOMMENDATION RE: GRANTING DEFENDANT SIMS'S MOTION FOR SUMMARY JUDGMENT [DOC. NO. 75]
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint in the United States District Court for the Northern District of California on February 26, 2003, pursuant to 42 U.S.C. § 1983. On March 10, 2003, Govind's Complaint was transferred to this district [doc. no. 1].
On June 7, 2004, Plaintiff filed a verified First Amended Complaint [doc. no. 31], against Defendants Lieutenant Adams and Correctional Officer Sims, both California Department of Corrections and Rehabilitation ("CDC") employees at Richard J. Donovan Correctional Facility ("Donovan") at the time of the events giving rise to the Complaint. In overlapping causes of action, Govind alleges that Defendants: (1) denied him adequate medical care and subjected him to cruel and unusual punishment while confined in administrative segregation ("Ad. Seg."), (2) infringed his right to freedom of religion, (3) retaliated against him for exercising his First Amendment rights, (4) engaged in racial discrimination, (5) deprived Plaintiff of his property in violation of due process, (6) deprived him of access to courts, and (7) violated his rights to freedom of association. (Am. Compl. 3-5.)
Sims filed his Answer [doc. no. 34] to Plaintiff's First Amended Complaint on July 15, 2004. On May 6, 2005, Plaintiff filed a Motion for an Injunction Order Preventing from Discrimination/Retaliation and Court Order for Immediate Transfer to Medical Facility [doc. no. 46]. The Court submitted its Report and Recommendation re: Denial of Plaintiff's Motion [doc. no. 74] to the district court on October 20, 2005. Govind filed Objections [doc. no. 83] to the Report and Recommendation (RR) on November 21, 2005. The district court adopted the RR on February 2, 2006 [doc. no. 102].
In the meantime, on November 4, 2005, Defendant Sims filed a Motion for Summary Judgment [doc. no. 75] and a Memorandum of Points and Authorities in Support of Motion for Summary Judgment [doc. no. 76]. On November 10, 2005, the Court provided notice of Sims's Motion for Summary Judgment to Govind as required by the Ninth Circuit in Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and set a briefing schedule for the Motion [doc. no. 77]. Govind filed his opposition, titled "Objection to Defendant's Motion for Summary Judgment" [doc. no. 85], on November 29, 2005. Sims filed his Reply [doc. no. 86] on December 5, 2005.
I. FACTUAL BACKGROUND
A. Plaintiff's FactsGovind's Complaint is an overlapping and repetitive recollection of grievances. It begins when Plaintiff arrived at Donovan in May of 2000 as a transferee from Salinas Valley State Prison ("Salinas"). (Am. Compl. 8; Def.'s Mem. Ex. C (Pl.'s Interrog. Resps.) at 329.) He has a history of physical ailments, including pneumonia, type II diabetes, asthma, hearing loss, emphysema, glaucoma, coronary artery disease, angina, and tuberculosis. (Am. Compl. 5, 8; Def.'s Mem. Ex. B (Pl.'s Resps. Req. Admis.) at 97, 131-32, 135-37, 140-41, 143-44, 196, Ex. C at 272, 275-79, 281-82, 284, 286-88, 294-95, 299, 304.) Because of his physical condition and Hindu faith, Govind arrived at Donovan with medical "chronos," or memos, for lower level cell placement, restricted work assignments, and extra food to accommodate the diet necessitated by his religious beliefs and diabetes. (Am. Compl. 3-4, 8-9, 11-12, Ex. 1; Def.'s Mem. 1 n. 3 (citing Cal. Dep't of Corr. Rehab., Operations Manual § 72010.7.3 (2000) (definition of medical chronos)).)
Citations to Defendant's exhibits are to the consecutively numbered pages added pursuant to S.D. Cal. Civ. L.R. 5.1(e).
Govind's verified Complaint is replete with claims of mistreatment. According to Plaintiff, at Donovan, Defendants targeted him by refusing to honor his chronos, confiscating and destroying his property (including food, legal documents, and medical records), refusing to provide medical care, and using "excessive force against [P]laintiff to [cause him to] eat Beef/Pork." (Am. Compl. at 3-5, 8-12, 14, 16.) Defendants confiscated Govind's extra food chrono on more than one occasion and at other times either refused to let him use it or punished him for using it. (Id. at 3-4, 8-9, 11.) Plaintiff states that this was done despite the fact that his Hindu faith had been verified by two religious leaders, and three doctors had issued chronos for extra food. (Id. at 4.)
On June 19, 2001, Correctional Officer Wamil wrote a letter to Dr. Choo, one of the doctors who had issued a medical chrono authorizing Govind to receive extra food. (Def.'s Mem. Ex. C at 328.) Officer Wamil noted that, on more than one occasion, Plaintiff did not eat both trays of food and instead gave the extra tray to other inmates. (Id.) Govind states that Defendant Sims "told officer Wamil to write to Dr. Choo and to cancel [the] chrono." (Am. Compl. 11.) Plaintiff lists this as an instance of deliberate indifference to his serious medical needs. (Id.)
Govind claims he was assigned to yard crew for three years despite restrictions prohibiting him from work involving exposure to wind, dust, smoke, fumes, extensive humidity, paint, woodworking, molds, grass, brush, weeds, cold environment, or inclement weather. (Id. at 3-4, 10.) Plaintiff asserts that Defendant Sims bribed the building officer at Donovan not to hire Govind for an inside job and instead to send him back to yard crew. (Id. at 3, 9.) Govind claims this lung ailment resulted because he "was . . . forced to work by Sims," despite the fact that Plaintiff "was very ill, short of breath, coughing, both legs swellon [sic]." (Id. at 8.)
Plaintiff states that Defendants "use[d] their official authority in forcing [him] to work or get a write up," and Govind avoided being written up because that would place him at a higher security level. (Id. at 9-10.) Plaintiff asserts that, in forcing him to work, Sims employed "excessive force, with malicious [sic] and sadistically to cause severe injury. . . ." (Id. at 8.) Govind alleges that "[i]t was obvious that [he] was diagnosed and suffering from asthma," and "any lay person could easily recognize that," yet Defendants forced him to work outdoors "to cause [him] severe harm." (Id. at 10.)
Plaintiff also claims he was housed in violation of his chrono restricting placement to a lower bunk and lower tier when he was placed in Ad. Seg. from January 27, 2002, until June 22, 2002. (Id. at 12, 14.) Govind declares "Defendant . . . placed [him] in Administrative Segregation unit, knowing that there is an informal policy [of] low priority for Due Process Rights [and] Freedom of Religio[n] [in Ad. Seg.]," as well as a low priority for medical needs, food service, and clothing. (Id. at 4, 15.) Plaintiff asserts the ill treatment he received in Ad. Seg. (including a cold, dirty cell without heat, pillows, or blankets) constituted cruel and unusual punishment and exacerbated his medical conditions, resulting in numerous hospitalizations and causing emotional distress. (Id. at 3, 5, 12, 14-15.)
Additionally, while housed in Ad. Seg., Govind was not allowed to use the law library and did not have access to his legal documents. (Id. 3, 14-15.) He states that he was not given his medication on his first night in Ad. Seg., and he was given only soup to eat. (Id. at 12.) The correctional officers assigned to Ad. Seg. brought Plaintiff a mattress, sheets, t-shirts, boxers, and a towel the next day, but they refused to honor Govind's requests for meatless meals because he was under investigation for falsification of chronos. (Id. at 13.)
Plaintiff asserts that Defendants filed false allegations and unsubstantiated charges against him regarding forged medical chronos, manufactured alcohol, and manufactured weapons. (Id. at 4-5, 8, 13-14.) Govind claims that Sims's written statement signed July 27, 2000, charging Plaintiff with possession of inmate-manufactured alcohol, was a false allegation made in retaliation for Govind's attempt to obtain extra milk with a valid chrono. (Id. at 8.) Plaintiff blames Defendant Sims for the punishment he received when he was found guilty of a rules violation for possession of alcohol — sixty days lost privileges, including no visits, no phone calls, no quarterly packages, and forty hours of extra labor. (Id.; Def.'s Mem. Ex. A (Pl.'s Dep.) at 21.)
The Complaint also alleges that the investigating officer involved in the hearing regarding Plaintiff's manufactured weapons charge failed to conduct a minimal investigation. (Am. Compl. 13.) Govind claims he was not allowed to speak at the February 25, 2002, hearing, where he was found guilty of a rules violation. (Id.) On March 14, 2002, Plaintiff appealed the allegation regarding manufacturing weapons. (Id. at 14.) Plaintiff was later criminally prosecuted for possession of an inmate-manufactured weapon, but on May 22, 2002, a jury found him not guilty. (Id. at 13; Def.'s Mem. Ex. C at 327.)
On February 3, 2002, Sergeant Pegan charged Govind with a rules violation for forgery. (Am. Compl. 14; Def.'s Mem. Ex. C at 254.) Plaintiff believes Defendants Adams and Sims told Sergeant Pegan to charge him. (Am. Compl. 14.) He claims his due process rights were violated, and he was subjected to cruel and unusual punishment when he was found guilty of forgery. (Id.)
Govind alleges Defendants routinely discriminated against him because of his race. (Id. at 5.) They "strip search[ed]" him in public (id.) and made derogatory statements about him and others of his race and religion (id. at 9-10). In June 2000, Sims, believing Plaintiff had altered the shirt he was wearing, grabbed Govind's shirt and cut his chest. (Id. at 9.) Govind claims Sims "always pick[ed him] to do certain job[s] which no one else like[d] to do." (Id.) Additionally, when Sims searched Plaintiff's cell on January 27, 2002, Sims "removed several items . . . and left the cell door open," allowing other inmates to loot his cell. (Id. at 14.) Govind also learned that Sims "gave away many of [Plaintiff's] legal files . . . and destroyed many." (Id.) When Govind asked for his confiscated property, Sims said he had used it all, and next time, he would plant drugs in Govind's cell before he searched it. (Id. at 15.)
Plaintiff claims he was transferred from Donovan to Folsom State Prison ("Folsom") in January of 2003 in retaliation for stating he planned to file a civil rights lawsuit against Sims. (Id. at 15-17.) Govind now resides at High Desert State Prison in Susanville, California. (Objection 1.)
B. Material Facts Not Subject to Dispute
Counsel for Defendant Sims has included in his Memorandum of Points and Authorities a statement of material facts he contends are not in dispute. (Def.'s Mem. 2-3.) The parties agree that Plaintiff was housed in Facility 2 of Building 9 at Donovan at the time of the incidents which gave rise to the Amended Complaint. (Id. at 2.) They also agree that Sims was the correctional officer assigned to the Facility 2 yard at Donovan when these events took place. (Id.)
On June 21, 2001, Govind's chrono for an extra tray of food was rescinded by Dr. Choo. (Id. (citing id. Ex. A at 28); see also id. Ex. C at 312.) Some time prior to that, Plaintiff refused to take a tray of food because the tray had meat on it. (Id. at 2 (citing id. Ex. A at 24-25).) The tray did have other items besides meat, but Sims sent Govind away without food because he refused to accept the tray. (Id. (citing id. Ex. A at 26-27).)
Sims was the reporting officer who signed the serious rules violation report charging Plaintiff with possession of an inmate-manufactured weapon. (Id. (citing id. Ex. B at 172).) However, Sims did not participate in the hearing on this charge. (Id. at 3 (citing id. Ex. A at 41-42).) Govind was eventually found guilty of a serious rules violation, but Lieutenant Adams, not Sims, was the person who initially ordered Plaintiff to be sent to Ad. Seg., and Officer Garcia determined the amount of time Govind should spend in Ad. Seg. after the guilty finding. (Id. at 2 (citing id. Ex. A at 46); see also Am. Compl. 13.)
At Adams's direction, Sims escorted Govind to Ad. Seg. and left him in the care of the Ad. Seg. staff. (Def.'s Mem. 3 (citingid. Ex. A at 38, 54).) There, Plaintiff received medical screening and a psychological evaluation. (Id. (citing id. Ex. A at 54-55).) An unidentified correctional officer in the Ad. Seg. unit placed Govind in a cold, dirty upstairs cell without a blanket. (Id. (citing id. Ex. A at 38-40).) Sims was not in the Ad. Seg. building when Plaintiff was assigned to a cell. (Id. (citingid. Ex. A at 38, 40).)
At his deposition, Govind admitted that when he alleged that the Defendants used excessive force to make him eat beef and pork, he was referring to Sims "not asking the people inside to make a tray without beef and pork." (Id. Ex. A at 58.) According to Sims, Govind has acknowledged that he has no evidence that Sims destroyed his property, was directly responsible for Plaintiff's continued assignment to yard crew, transferred Govind to Folsom in retaliation for Plaintiff's exercise of his First Amendment rights, or prohibited Govind from accessing the courts. (Id. at 3 (citing id. Ex. A at 30-35, 43-54, 59-62, Ex. C at 222-23).)
However, Plaintiff asserts that Sims was responsible for searching Govind's cell and gathering Govind's property. (Id. Ex. A at 43-54.) He maintains that Sims "influenced" Officer Powell to keep Govind on the yard crew. (Id. at 35.) Plaintiff speculates that Sims told his friend, Officer Garcia, to transfer Govind. (Id. at 59-62.) But Plaintiff acknowledges that Captain Morris, who was responsible for Govind's classification, told him that he "should leave this yard" and "go to another yard." (Id. at 60.) Plaintiff conceded that, although Sims reported Govind for manufacturing alcohol and possessing an inmate-manufactured weapon, he was not involved in the hearing on this rules violation. (Id. at 3 (citing id. Ex. A at 20-23, 41-42).) Finally, Plaintiff admitted that Sims was not the reporting officer or involved in the hearing on Govind's rules violation for falsifying medical chronos. (Id. (citing id. Ex. A at 56-58).)
II. LEGAL STANDARD FOR SUMMARY JUDGMENT MOTIONS
Federal Rule of Civil Procedure 56(c) authorizes granting summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Like the standard for a directed verdict, judgment must be entered for the moving party "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citing Brady v. S. Ry. Co., 320 U.S. 476, 479-80 (1943)). However, "[i]f reasonable minds could differ," judgment should not be entered in favor of the moving party. Id. at 250-51 (citing Wilkerson v. McCarthy, 336 U.S. 53, 62 (1949)).The parties bear the same substantive burden of proof that would apply at a trial on the merits, including plaintiff's burden to establish any element essential to his case. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06 (1999);Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Liberty Lobby, 477 U.S. at 252; see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "When the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to 'make a showing sufficient to establish the existence of an element essential to [its] case.'" Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S. at 322).
The moving party bears the initial burden of identifying the pleadings or other evidence which it "believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323; Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970);Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003).
The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial.Celotex, 477 U.S. at 324. To successfully rebut a defendant's properly supported motion for summary judgment, the plaintiff "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inferences made in the plaintiff[']s favor, could convince a reasonable jury to find for the plaintiff." Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000) (citing Fed.R.Civ.P. 56; Celotex, 477 U.S. at 323; Liberty Lobby, 477 U.S. at 249). Material issues are those that "might affect the outcome of the suit under the governing law." Liberty Lobby, 477 U.S. at 248; see also Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1039-40 (9th Cir. 2000); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). More than a "metaphysical doubt" is required to establish a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
If the facts a plaintiff submits in opposition to a summary judgment motion cannot "connect any particular defendant to the incidents giving rise to liability, that defendant is entitled to summary judgment and may not be required to go to trial." Paine v. City of Lompoc, 265 F.3d 975, 984 (9th Cir. 2001). In deciding whether any genuine issue of material fact remains for trial, courts must "view the evidence in the light most favorable to the nonmoving party. . . ." Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001); see also Eastman Kodak Co. v. Image Technical Serv., Inc., 504 U.S. 451, 456 (1992) (stating that the nonmoving party's evidence is to be believed and all reasonable inferences drawn in the nonmoving party's favor).
This Court must restrict its inquiry to facts supported by the record. It does "not give credence to empty rhetoric, . . . but credit[s] only those assertions that are supported by materials of evidentiary quality." LeBlanc v. Salem (In re Mailman Steam Carpet Cleaning Corp.), 196 F.3d 1, 2 (1st Cir. 1999) (citation omitted). "[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment." Nelson v. Pima Cmty. College, 83 F.3d 1075, 1081-82 (9th Cir. 1996). However, when the nonmoving party is proceeding pro se, the Court has a duty to consider "all of [the nonmovant's] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [the nonmovant] attested under penalty of perjury that the contents of the motions or pleadings are true and correct." Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004) (citations omitted).
Here, Govind's opposition to Defendant's summary judgment motion consists entirely of legal argument without any evidence to dispute Sims's claims. (Doc. no. 85.) Accordingly, the only evidence available to controvert Defendant's Motion comes from Plaintiff's verified Amended Complaint and the discovery responses and deposition testimony attached as exhibits to Sims's Motion.
III. DISCUSSION
Defendant Sims moves for summary judgment on the grounds that: (1) Govind fails to adequately support his claims; and (2) "the evidence is insufficient to support a Fourteenth Amendment claim as Plaintiff did not have a liberty interest which was violated by his placement in the security housing [or Ad. Seg.] unit." (Notice of Mot. 2; Def.'s Mem. 4.)
A. The First Cause of Action
Plaintiff's first claim is labeled "Inadequate Medical Care, Access to Court/Removing legal court documents and destroying it" [sic] (Am. Compl. 3.) The reference to inadequate medical care and Govind's diary of events allege an Eighth Amendment claim. (Id. at 3, 8-17.)
1. Inadequate Medical Care and the Eighth Amendment Claim
The Eighth Amendment prohibits punishments that "'involve the unnecessary and wanton infliction of pain. . . .'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)) (additional citations omitted). The government has an "obligation to provide medical care for those whom it is punishing by incarceration." Id. at 103; see also DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 198 (1989) (citing Estelle, 429 U.S. at 103-04).
To assert an Eighth Amendment claim for inadequate medical care or unconstitutional conditions of confinement, a prisoner must allege facts sufficient to fulfill two requirements: one objective and the other subjective. Lopez, 203 F.3d at 1132-33 (quoting Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994));see Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Under the objective requirement, in a medical care claim, the prisoner must show that he had a serious medical need. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992),overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). "A 'serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain'." Id. at 1059 (quoting Estelle, 429 U.S. at 104). "Examples of serious medical needs include 'the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting McGuckin, 974 F.2d at 1059-60).
Under the subjective requirement, the prisoner must allege facts that show that the defendant acted with "'deliberate indifference' to inmate health or safety. . . ." Farmer, 511 U.S. at 834; see also Wilson, 501 U.S. at 302-03 (1991) (indicating that there is no significant distinction between wantonness and deliberate indifference); Lopez, 203 F.3d at 1133 (quoting Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994)). "[T]he official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. "This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, 429 U.S. at 104-05 (footnotes omitted). The indifference to medical needs must be substantial; inadequate treatment due to malpractice, or even gross negligence, does not amount to a constitutional violation. Wilson, 501 U.S. at 297 (quoting Estelle, 429 U.S. at 105-06); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (citing McGuckin, 974 F.2d at 1059).
Deliberate indifference does not require an express intent to cause harm. Id. at 835-36. However, it does require more than mere negligence. Id. at 835; Daniels v. Williams, 474 U.S. 327, 328 (1986); Estelle, 429 U.S. at 106. A defendant's acts or omissions will not rise to the level of a constitutional violation unless there is a reckless disregard for a risk of serious harm to the prisoner. Farmer, 511 U.S. at 836. The official must have "know[n] that [the] inmate face[d] a substantial risk of serious harm and disregard[ed] that risk by failing to take reasonable measures to abate it." Id. at 847.
a. Interference with Diabetic Diet
As a diabetic, Govind needed to make sure his blood sugar stayed at safe levels throughout the day. (See Def.'s Mem. Ex. B at 144, 196.) Therefore, doctors at Donovan issued Plaintiff chronos for extra food. (Id. Ex. B at 196-98, 213, 215, Ex. C at 306.) Plaintiff alleged that Defendants interfered with his use of chronos for extra food. According to Plaintiff, Sims told him "don't eat" when he refused to accept a tray of food with beef on it. (Id. Ex. A at 24-25.) On July 23, 2000, in alleged retaliation for Plaintiff's attempts to use the extra food chrono, Sims searched Govind's cell, destroyed some of his property and confiscated some food he had stored there. (Am. Compl. 8.) Plaintiff also contends that in June of 2001, Sims asked another officer to write a letter to Dr. Choo, urging her to cancel the extra food chrono. (Id. at 11.) Depriving Plaintiff of extra food posed a risk to his health. (See Def.'s Mem. Ex. B at 196 (stating "insulin reaction may cause . . . [s]weating, weakness, confusion, or coma").) Govind has demonstrated a serious medical need for dietary accommodations.
Nevertheless, Plaintiff has not established that Sims had the subjective intent needed to hold him liable for an Eighth Amendment violation. At best, Govind's evidence that Sims knew Plaintiff was diabetic and deliberately ignored a risk of serious harm is equivocal. In his verified Complaint, Govind states: "On July 23, 2000 I requested for a extra milk. I showed my chrono. C/O Sims walked in and said move or I will toss your cell up." (Am. Compl. 8.) Even if Sims ushered Govind through the food line on this occasion without an extra beverage, this does not suffice to establish deliberate indifference.
Evidence that a prison official ignored "the instructions of a prisoner's treating physician . . . exhibit[s] 'deliberate indifference' to the prisoner's medical needs." Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999). On this point, Plaintiff's evidence falls short. Moreover, the chrono for an extra tray of food was rescinded by Dr. Choo on June 21, 2001. (Def.'s Mem. Ex. A at 28, Ex. C at 312.) It was replaced by a chrono which authorized Govind to receive a food substitute in place of beef and pork. (Id.) The authenticity of Govind's food chronos was questioned and led to a search of Plaintiff's cell by Sims on January 27, 2002, and the filing of a rules violation report on February 5, 2002. (Def.'s Mem. Ex. B at 182.)
Additionally, on April 3, 2002, a hearing was held at which Govind was found guilty of falsifying medical chronos, and on May 2, 2003, the California Court of Appeal denied Govind's habeas petition which challenged that disciplinary finding. (Id. at 129, 182.) "The record show[ed] prison officials investigated their records and determined their staff had not issued the documents. That is some evidence to support the [disciplinary] finding." (Id. at 129 (citing Superintendent v. Hill, 472 U.S. 445, 455 (1985).)
With the exception of the July 23, 2000, extra milk incident, Plaintiff does not establish whether Sims forced him to go without food before Dr. Choo rescinded the extra food chrono and before questions about the validity of the chronos were raised. (Id. Ex. A at 24-25.) In 2002, Sims had reason to believe Plaintiff was falsifying his medical chronos. Govind's evidence fails to raise a material issue as to whether Sims's acted with deliberate indifference to a serious medical need when Govind went without food for one meal, without extra milk on one occasion, or when Sims searched Plaintiff's cell.
Govind "fails to 'make a showing sufficient to establish the existence of an element essential to [his] case[,]'" namely Sims's subjective state of mind at the time of the complained of conduct. See Nebraska v. Wyoming, 507 U.S. at 590 (quotingCelotex, 477 U.S. at 322). Summary judgment should be GRANTED for Sims on this aspect of Plaintiff's claim.
b. Assignment to Outdoor Work
Govind's verified Complaint states that Sims forced him to work outdoors on yard crew when he was extremely ill, refusing to honor the medical chrono that restricted him from work in "wind, dust, smoke, fumes, . . . extensive humidity[,] . . . outside work crew with molds, grass, brush, or weeds[,] . . . and cold environment or inclement weather." (Am. Compl. 3, 8-10; Def.'s Mem. Ex. C at 315.) Plaintiff asserts that he continued to be assigned to yard crew even with his work restriction chrono in effect. (Def.'s Mem. Ex. A at 31.) On several occasions, Plaintiff told Defendants that a doctor had restricted him from work in cold weather. (Am. Compl. 9.) The work restriction chrono states it was issued for a medical condition — asthma. (Def.'s Mem. Ex. C at 315.) When Govind reported to work for Sims, he took his chrono with him. (Id. Ex. A at 31.)
Asthma is a serious medical condition, and its aggravation carries a risk of further serious injury. Therefore, the objective component of Plaintiff's deliberate indifference to medical treatment claim is satisfied. Nevertheless, Plaintiff does not establish that Sims was the person responsible for his assignment to outdoor work.
Plaintiff speculates that Sims bribed the building officer, Officer Powell, not to hire Govind for indoor work and, instead, to send him back to yard crew. (Am. Compl. 3, 9.) However, during his deposition, Govind admitted that the only evidence he had that Sims bribed Officer Powell was that Sims and Powell "are buddies[,] . . . [and] when Sims was searching [Plaintiff's] cell, he told Officer Powell to keep an eye on [Govind]. . . ." (Id. at 32, 65.) Later, when Plaintiff received notice that he was qualified for an indoor job, Powell refused to allow him to work at that job. (Id. at 33-35.)
"[A] genuine issue [for trial is not] created merely by the presentation of assertions that are conclusory." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citingMeiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); 10B Charles Alan Wright Arthur R. Miller, Federal Practice Procedure § 2738, at 346-56 (3d ed. 1998)); see also Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (stating that "[s]weeping conclusory allegations" are not sufficient to prevent summary judgment). Affidavits and other verified statements used in connection with a summary judgment motion or opposition must "be made on personal knowledge [and must] . . . show affirmatively that the affiant is competent to testify to the matters stated. . . ." Fed.R.Civ.P. 56(e).
Govind's claim that Sims bribed Powell to keep Plaintiff on yard crew was not based on personal knowledge or other admissible evidence. Rather, Govind assumes that because of the officers' friendship and working relationship, a bribe must have occurred. This is insufficient to oppose Sims's Motion for Summary Judgment.
"'A person deprives another "of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]."'" Redman v. County of San Diego, 942 F.2d 1435, 1439-40 (9th Cir. 1991) (quoting Leer, 844 F.2d at 633 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)) (emphasis added in Leer)). Thus, "to . . . recover damages against any . . . named prison official, the inmate . . . must prove (1) that the specific prison official . . . was deliberately indifferent to the mandates of the eighth amendment and (2) that this indifference was the actual and proximate cause of the deprivation of the inmate[']s eighth amendment right. . . ." Leer, 844 F.2d at 634 (citations omitted). The causation inquiry focuses on "whether the individual defendant was in a position to take steps to avert" the harm to the plaintiff, as well as what "the duties, discretion, and means of each defendant" were at the time. Id. at 633-34.
There are no facts in the record which demonstrate that Sims was responsible for Govind's yard assignment. The relevant facts are that Sims worked in the yard; Sims and Powell worked together and searched Plaintiff's cell; and Powell called the assignment office at Donovan and said that Govind could not work for him as a building clerk. (Def.'s Mem. Ex. A at 30-35.) Officer Powell or the assignment office was ultimately responsible for keeping Plaintiff on yard crew. There is no evidence that Sims's actions were the actual and proximate cause of Plaintiff's continued assignment to yard crew. Summary judgment should be GRANTED in Sims's favor on this claim.
c. Placing Govind in Ad. Seg.
Plaintiff complains that Defendants placed him in Ad. Seg. knowing there was a "low priority to medical care." (Am. Compl. 3.) However, Defendant Sims followed Adams's orders to take Govind to Ad. Seg. initially when the inmate-manufactured weapon was found in Plaintiff's cell. (Def.'s Mem. Ex. A at 37-39.) Sims was not the officer responsible for deciding that Govind should remain in Ad. Seg. for several months, nor was Sims the person who housed Plaintiff in a cold, dirty, upper level cell without pillows or blankets that first night. (Id. at 40-42.) Correctional Counselor Garcia decided the length of time Sims would spend in Ad. Seg. (Id. at 42.) The Defendant was simply the reporting officer who signed the serious rules violation report and transported Govind to Ad. Seg. (Id. at 37-38, 41-42.) The evidence cannot support a finding that by signing the violation report or escorting Govind to Ad. Seg. Sims was deliberately indifferent to the inmate's health or safety. See Farmer, 511 U.S. at 834; Lopez, 203 F.3d at 1133.
Furthermore, Sims's acts were not the proximate cause of Govind being housed in Ad. Seg. from January 27, 2002, through June 22, 2006, even if being housed in Ad. Seg. resulted in a deprivation of basic human needs. See Redman, 942 F.2d at 1439-40. Sims's Motion for Summary Judgment should be GRANTED. 2. Access to Court and the First Amendment Claim
Govind's first cause of action refers to "Access to Court/Removing legal court documents and destroying it." [sic] (Am. Compl. 3.) Without any additional specificity, Plaintiff alleges that Sims destroyed legal court records. (Id.) inBounds v. Smith, 430 U.S. 817 (1977), the Supreme Court held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828. The Court revisited and significantly limited Bounds in Lewis v. Casey, 518 U.S. 343 (1996).
In Lewis, the Court reshaped the right of access to the courts in two respects: (1) by clarifying that every access to courts claim must be founded upon actual injury, and (2) by restricting the scope of the right. Id. at 349, 351, 354-55. The right of access is only guaranteed for direct and collateral attacks upon a conviction or sentence and civil rights actions challenging the conditions of confinement. Id. at 355. Even among these claims, actual injury will exist only if "a nonfrivolous legal claim had been frustrated or was being impeded." Id. at 353 (footnote omitted) (emphasis added).
In Christopher v. Harbury, 536 U.S. 403 (2002), the Supreme Court recently held that to state a claim for deprivation of the constitutional right to access the courts a plaintiff must allege: (1) a lost past, existing or prospective litigating opportunity and (2) specific actions by government officials that caused the denial of access. Id. at 414-13. To satisfy the "actual injury: requirement found in Lewis, is not enough simply to state that a "nonfrivolous" claim has been dismissed or impeded due to the action of some government official. Id. at 415-16. Instead, a complaint must contain allegations "sufficient to give fair notice to a defendant [,]" and the complaint should "state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a), just as if it were being independently pursued. . . ." Id. at 416-17 (footnote omitted).
Here, Govind has failed to provide any evidence that he has been denied the access to courts guaranteed by Christopher andLewis. He claims that Defendants "searched his cell and destroyed many . . . legal court . . . records" and "placed [Govind] in Ad[.] Seg. knowing that there is an informal policy [of] low priority to . . . ac[c]ess to court." (Am. Compl. 3.) Plaintiff has failed to show how defendant Sims caused an "actual injury" — prevented or impeded Govind from pursuing protected forms of legal action.
Moreover, Plaintiff does not describe which action has been impeded, although his Complaint refers to a criminal jury trial in San Diego County Superior Court for which he needed his legal documents. (See Id. at 13-14) Nevertheless, Govind has not shown that he suffered any injury in that case. He went to trial on the possession of weapons charge and was found not guilty. (Id. at 13; Def.'s Mem. Ex. C at 327.)
Sims argues that if Govind's right to access the courts claim is premised upon interference with disciplinary hearings on rules violations, Plaintiff is not entitled to relief. (See Def.'s Mem. 12.) The Defendant notes that in Plaintiff's interrogatory answers he refers to "deprivation in criminal matter," ineffective assistance, and a deprivation of due process. (See id. at 12, Ex. C at 222-24.) This was in response to an interrogatory asking for facts supporting Plaintiff's contention that his Sixth Amendment rights were violated. (Id. Ex. C at 346.) The Court finds no mention of the Sixth Amendment in Govind's Amended Complaint. (See generally Am. Compl.) Additionally, although "[t]he right of meaningful access to the courts extends to established prison grievance procedures[,]"Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), Plaintiff concedes that Sims played no role in procedural aspects of the disciplinary hearings about which he complains. (Def.'s Mem. Ex., A at 21-23, 4142, 57-58.)
Accordingly, the Court recommends GRANTING Sims's Motion for Summary Judgment on Plaintiff's access to court claim.
3. Taking of Property Claim
Although not captioned as a separate claim, among the supporting facts alleged in connection with Plaintiff's first cause of action is a statement that Defendant "destroyed many food items and legal court and medical records." (Am. Compl. 3.) The negligent or intentional deprivation of property by state officials does not state a cause of action under § 1983 for violation of procedural due process rights if the plaintiff has an adequate, meaningful postdeprivation state remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (stating that "[i]f a meaningful post-deprivation remedy exists for an alleged deprivation of property, then that post-deprivation remedy is sufficient to satisfy the requirements of due process").
The Ninth Circuit has held that California law provides an "adequate postdeprivation remedy for any property deprivations."Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (per curiam) (citing Cal. Gov't Code §§ 810- 895)). State law makes public employees liable for injuries to prisoners proximately caused by the employees' negligent or wrongful acts or omissions. Cal. Gov't Code § 844.6(d) (West 1995). California Government Code sections 900 through 915.4 set out the procedure for making claims against public entities. See Cal. Gov't Code §§ 900- 915.4 (West 1995 Supp. 2006). California law thus provides an adequate state postdeprivation remedy for any personal property an inmate may have lost due to prison officials' negligence or intentionally wrongful acts or omissions.
Because Govind has adequate state postdeprivation remedies available, he cannot hold Sims liable under § 1983, and Sims's Motion for Summary Judgment should be GRANTED with respect to this claim. B. The Second Cause of Action 1. Due Process
Like the first cause of action, Govind's second claim for relief strings together constitutional phrases — "Due Process Rights[,] Free Speech and Freedom of Religion." (Am. Comp. 4.) Plaintiff alleges that he was placed in Ad. Seg., "knowing there is an informal policy, low priority for Due Process Rights. . . ." (Id.) In the extended narrative attached to the Complaint, Govind complains about his disciplinary hearings. (Id. at 13.) "I did not waive time. Lt. Hill was the investigating officer, he violated the disciplinary proceeding by failing to conduct a minimal investigation. . . . I was found guilty by CC-II Garcia and sentenced to ten months SHU term." (Id.)
First, the specific allegations are not against Defendant Sims. Because Govind lacks admissible evidence to connect Sims to the claimed deprivation of due process, the Defendant is entitled to summary judgment. Paine v. City of Lompoc, 265 F.3d at 984. Second, the conclusory allegation is insufficient to prevent summary judgment. Leer v. Murphy, 844 F.2d at 634. The "due process" aspect of the second cause of action does not withstand scrutiny, and Sims is entitled to summary judgment.
2. Free Speech
The scope of Govind's free speech claim, also identified in the second cause of action, is hard to define. (Am. Compl. 4.) Plaintiff alleges that he told Sims that he was going to file a lawsuit against him, and Sims went to Officer Garcia and told him to transfer Govind to Folsom. (Id. at 15-16.) Govind attempts to state a claim for retaliation. He also alleges that he made several complaints, and the Defendants retaliated by confiscating food items. (Id. at 4.)
"A prison inmate retains those first amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system."Pell v. Procunier, 417 U.S. 817, 822 (1974). Prisoners have a First Amendment right to free speech, Thomas v. Evans, 880 F.2d 1235, 1242 (11th Cir. 1989), and to petition the government.Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995).
The Constitution provides protections from "deliberate retaliation" by government officials for an individual's exercise of First Amendment rights. See Vignolo v. Miller, 120 F.3d 1075, 1077-78 (9th Cir. 1997); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Because retaliation by prison officials may chill an inmate's exercise of legitimate First Amendment rights, retaliatory conduct is actionable even if it would not otherwise rise to the level of a constitutional violation. See Thomas v. Evans, 880 F.2d at 1242. However, there must be a causal connection between the allegedly retaliatory conduct and the action that provoked the retaliation; a plaintiff must "show that the protected conduct was a 'substantial' or 'motivating' factor in the defendant's decision" to act. Soranno's Gasco, 874 F.2d at 1314 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Courts have noted that "[r]etaliation claims by prisoners are 'prone to abuse' since prisoners can claim retaliation for every decision they dislike." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). As a result, these claims are reviewed with particular care. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
To withstand a motion for summary judgment, a plaintiff suing prison officials pursuant to § 1983 for retaliation must produce sufficient evidence to create a triable issue as to whether: "(1) . . . a state actor took some adverse action against [the] inmate (2) because of (3) that prisoner's protected conduct, and . . . such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994)) (footnote omitted). If the plaintiff does not present facts showing his exercise of First Amendment rights was chilled (factor four), he must raise a triable issue of fact regarding whether the defendant's actions caused him to suffer more than minimal harm. Id. at 567-68 n. 11. But see Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999) (stating that test is objective — whether official's acts would "chill or silence a person of ordinary firmness from future First Amendment activities").
Here, Govind claims that Sims retaliated against him by refusing to honor his chronos for extra food, "confiscating food items from [Plaintiff's] quarterly package[,]" bribing Officer Powell to send him back to yard crew, calling him "O'Sama Binlarden" and "Taleban," and asking Officer Garcia to transfer Govind to Folsom. (Am. Compl. 4, 9-10, 15-16; Def.'s Mem. Ex. A at 28-29, 31-32, 59-60.) Plaintiff contends that Sims took these retaliatory actions because Sims did not like Govind's race or religion and because Plaintiff told Sims he was going to file a civil action against him. (Def.'s Mem. Ex. A at 29, 59-61; Am. Compl. 15-16.) Yet, elsewhere in his Complaint, (Am. Compl. 8), Govind alleges that his food chronos were from "Doctors," undermining Plaintiff's allegation that Sims failed to give him extra food in retaliation for exercising Govind's religious beliefs.
Plaintiff's allegations of discrimination on the basis of race are discussed below in Part 3.D.1.
Sims's alleged actions did not chill Plaintiff's First Amendment activities of practicing his religion or filing this lawsuit. Govind filed this civil rights suit on February 26, 2003 [doc. no. 1]. There is no evidence that he was prevented or impeded from practicing his Hindu faith. Instead, Plaintiff alleges he went to his cell without food on at least one occasion; he was deprived of his property; he became ill from working outdoors in inclement weather; he endured harassment; and he was transferred to Folsom, which Govind claims is a "very old dirty prison" where he was subjected to poor medical care, bad food, and great distance from his family. (Def.'s Mem. Ex. A at 25; Am. Compl. 4, 8, 10, 15-16.)
Furthermore, Plaintiff has failed to present evidence to show that the exercise of his Hindu religion or his right to petition for redress of grievances was a "substantial" or "motivating" factor for Sims's alleged retaliation. See Soranno's Gasco, 874 F.2d at 1314. To prevail on a retaliation claim, an inmate must present probative evidence of the "crucial link" between the alleged retaliation and the exercise of protected First Amendment rights. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995).
"[A] plaintiff cannot establish retaliation simply by showing that the protected activity happened before the defendants took their action. . . ." Johnson v. Kingston et al., 292 F. Supp. 2d 1146, 1154 (W.D. Wisc. 2003). The inmate "must be able to point to other reasons that suggest a relationship between the [protected conduct and act of retaliation]." Id. Temporal proximity is only one of many factors to consider. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
In addition, Govind fails to demonstrate that Defendant's actions did not "advance legitimate penological goals, such as preserving institutional order and discipline." See Barnett v. Centoni, 31 F.3d 318, 815-16 (9th Cir. 1994). The investigation of falsified chronos and the confiscation of items from Govind's cell were related to legitimate penological concerns. The assertion that Sims caused Plaintiff to be assigned to the yard crew and transferred to Folsom is lacking evidentiary support. (Def.'s Mem. Ex. A at 30-35, 59-62.)
The Plaintiff's random catalogue of complaints fails to support a viable claim of retaliation against Officer Sims. Therefore, entry of summary judgment in Sims's favor on Govind's retaliation claims should be GRANTED. 3. Freedom of Religion
The Free Exercise Clause of the First Amendment, made applicable to the states through the Fourteenth Amendment,Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), "forbids all laws 'prohibiting the free exercise' of religion." McDaniel v. Paty, 435 U.S. 618, 620 (1978) (quoting U.S. Const. amend. I). This Clause protects not only the right to hold a particular religious belief, but also the right to engage in conduct motivated by that belief. Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (recognizing that "the 'exercise of religion' often involves not only belief and profession [of belief] but the performance of (or abstention from) physical acts").
"The right to exercise religious practices and beliefs does not terminate at the prison door." McElyea v. Babbit, 833 F.2d 196, 197 (9th Cir. 1987) (citing O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Bell v. Wolfish, 441 U.S. 520, 545 (1979)). "To merit protection under the free exercise clause of the First Amendment, a religious claim must satisfy two criteria. 'First, the claimant's proffered belief must be sincerely held. . . .' Second, . . . 'the claim must be rooted in religious belief. . . .'" Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (citations omitted). "In order to establish a free exercise violation, [a prisoner] must show the defendants burdened the practice of his religion, by preventing him from engaging in conduct mandated by his faith, without any justification reasonably related to legitimate penological interests." Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997) (footnote omitted) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
A prisoner's First Amendment right to freely exercise his religious beliefs is "necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security."McElyea, 833 F.2d at 197 (citing O'Lone v. Estate of Shabazz, 482 U.S. 342, (1987)). The competing interests are balanced by determining whether the restriction is "'reasonably related to legitimate penological interests.'" O'Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)); see also Anderson v. Angelone, 123 F.3d 1197, 1198 (9th Cir. 1997).
In Turner v. Safley, 482 U.S. 78, 89-90 (1987), the Court announced the standard for determining the reasonableness of a prison regulation that impinges on prisoners' constitutional rights. More recently, the Court stated:
Four factors are relevant in deciding whether a prison regulation affecting a constitutional right . . . withstands constitutional challenge: [1] whether the regulation has a "valid, rational connection" to a legitimate governmental interest; [2] whether alternative means are open to inmates to exercise the asserted right; [3] what impact an accommodation of the right would have on guards and inmates and prison resources; and [4] whether there are "ready alternatives" to the regulation.Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (citing Turner, 482 U.S. at 89); see also Anderson v. Angelone, 123 F.3d at 1198. Legitimate penological interests include "security, order, and rehabilitation." Procunier v. Martinez, 416 U.S. 396, 413 (1974). A court must generally defer to the judgments of prison officials "because 'the problems of prisons in America are complex and intractable,' and because courts are particularly 'ill equipped' to deal with these problems. . . ." Shaw v. Murphy, 532 U.S. 223, 229 (2001). Although Turner dealt with the reasonableness of prison regulations, the same analysis has been applied to individual acts preventing a prisoner from engaging in a religious practice. See Ford v. McGinnis, 352 F.3d 582, 595 (2d Cir. 2003).
In his Complaint and during his deposition, Plaintiff claimed his free exercise rights were violated when: (1) Both Defendants used "excessive force" to cause Govind to eat beef and pork by failing to ask food service personnel to prepare Plaintiff's meals without meat; (2) Defendant Sims told Govind he would have to go without food if he refused to accept a tray of food with beef on it; (3) Defendants placed Govind in Ad. Seg. where there was "an informal policy [of] low priority for . . . Freedom of Religio[n] . . ."; and (4) Defendants confiscated some of Plaintiff's "religious food items." (Am. Compl. 4-5; Def.'s Mem. Ex. A at 25-27, 58.) Govind also asserts that prison officials failed to provide him with meals free of beef and pork and with "proper religious dietary supplies" while he was housed in Ad. Seg. (Am. Compl. 5, 13; see also Def.'s Mem. Ex. B at 213-14 (listing religious dietary items).)
Govind is a Hindu, and his religion prohibits eating beef or pork. (Am. Compl. 4.) Additionally, "garlic, ginger, and a small amount of religious oil" are "necessary to the fulfillment of his religious obligations. . . ." (Def.'s Mem. Ex. B at 214.) Defendant does not dispute the sincerity of Plaintiff's Hindu faith and beliefs, nor does he challenge the fact that Govind's dietary restrictions are related to his Hindu religion. Plaintiff presented evidence showing that four different religious and spiritual leaders at CDC facilities verified his religious beliefs and the dietary restrictions that accompanied them. (Id. at 213-15.) Therefore, Govind's religious practices are entitled to protection under the Free Exercise Clause. See Malik, 16 F.3d at 333.
Next, the Court must consider whether Sims's actions withstand constitutional challenge under the four-factor Turner test. First, it must determine whether Defendant's actions are rationally related to a legitimate government interest, such as security, order, or rehabilitation. Overton, 539 U.S. at 132;Procunier, 416 U.S. at 413.
One of Plaintiff's charges refers to an incident that occurred when he was picking up a meal tray, but there was meat on the tray. (Def.'s Mem. Ex. A at 25.) Govind told Sims: "Tell them I don't want no meat." (Id.) According to Plaintiff, Sims replied: "It's not my responsibility. You pick and go." (Id.) Plaintiff did not pick up the food tray, so Sims told Govind not to eat and sent him to his cell. (Id.) Govind later acknowledged there were nonmeat items on the tray. (Id. at 27.)
Defendant's decision not to intervene on Govind's behalf and ask food service personnel for a meatless tray is rationally related to the legitimate interest in maintaining order in the prison. Furthermore, it is constitutionally permissible for prison guards to expect prisoners to take responsibility for making their own religious dietary requests. See, e.g., Resnick v. Adams, 348 F.3d 763, 771 (9th Cir. 2003) (finding requirement that inmate fill out form requesting kosher diet "'reasonably related to legitimate penological interests'").
Govind also claims that he was deprived of a nonmeat, religious diet while in Ad. Seg. (Am. Compl. 4, 13.) Plaintiff alleges that the officers and sergeant told him that he did not have a chrono for a meatless diet and was under investigation. (Id. at 13.) This related to a legitimate penological interest because Plaintiff was being investigated for falsification of chronos at the time. (See id.) Govind was in Ad. Seg. because of a rules violation report dated February 5, 2002, which stated that on January 27, 2002, altered medical chronos and approximately 300 rubber stamps were found in Govind's cell. (Def.'s Mem. Ex. B at 182.) This claim suffers from an additional defect. There is nothing to suggest that Sims had any responsibility for providing meatless or religious meals to Govind. Plaintiff testified that Sims works in the yard, not in building six, where Ad. Seg. is located. (Id. Ex. A at 19, 40.) Thus, with respect to the first three allegedly unconstitutional activities, the first Turner factor is satisfied.
Finally, the claim Defendant confiscated "religious food items" from Govind's cell is not supported by sufficient facts to survive a motion for summary judgment. Plaintiff simply makes a conclusory statement that on many occasions religious food items were removed from his cell. (See id. at 4.) Plaintiff does not identify what "religious food items" were removed. (Id.) Nor does he establish that Sims knew that "religious" food items were being removed. (Id.) Without specific factual allegations showing that Sims directly interfered with Govind's practice of his religion, this portion of Plaintiff's free exercise claim must fail. See Patterson, 375 F.3d at 219 (stating that hearsay or conclusory assertions do not create genuine issue for trial).
The Court must consider whether alternative means existed for Govind to exercise his religious rights. Overton, 539 U.S. at 132. In the dining hall, Plaintiff could have eaten the nonmeat items or requested a meat-free tray from the kitchen staff. Thus, as to Sims's actions in the dining hall, the second Turner factor is also satisfied.
In Ad. Seg., Sims was not the prison official responsible for depriving Plaintiff of his religious diet. It was the Ad. Seg. officers and sergeants who refused Plaintiff's requests for nonmeat meals. (Am. Compl. 13.) Because the facts do not connect Sims to the "incidents giving rise to liability, [Sims] is entitled to summary judgment" on this portion of Plaintiff's free exercise claim as well. See Paine, 265 F.3d at 984.
Under the third factor, there is no evidence to indicate that the prison does not provide for religious dietary needs. Instead, Govind complains about the mechanics of meeting those needs, which generally falls short of establishing interference with the practice of an inmate's religious beliefs. See Resnick, 348 F.3d at 768-71. Govind's request that Sims (who has no responsibility for meals) ask for religious meals for Plaintiff would adversely impact guards, other inmates, and prison resources. See Overton, 539 U.S. at 132. Plaintiff is able to ask for a meatless meal, but he prefers that Sims make the request. To require that Sims take daily responsibility for ensuring that Plaintiff received a particular meal or is exempt from Ad. Seg. would drain prison resources and disrupt the level of order, without any real beneficial effect on prisoners. Therefore, this third factor also weighs in Defendant's favor.
Fourth and finally, the Court considers "whether the presence of ready alternatives undermines the reasonableness of the regulations" or restrictions. Id. at 136. "Turner does not impose a least-restrictive-alternative test, but asks instead whether the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted right while not imposing more than a de minimus cost to the valid penological goal." Id. (citing Turner, 482 U.S. at 90-91.) The alternatives suggested by Govind — having Defendant Sims request nonmeat meals for him, replace a tray with meat for a meatless tray for an able-bodied inmate and not place Govind in Ad. Seg. — would impose more than a de minimus cost to prison administration. The Turner factors favor Defendant, to varying degrees, for each of Govind's grievances. Thus, Sims's Motion for Summary Judgment should be GRANTED on Plaintiff's freedom of religion claims.
C. The Third Cause of Action
Govind's Complaint labels this claim "Freedom of Association and Freedom from cruel and unusual punishment." (Am. Compl. 5.)
1. Freedom of Association
"'[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'"Johnson v. California, 543 U.S. 499, ___, 125 S. Ct. 1141, 1149 (2005) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). However, the associational rights of prisoners are, by necessity, restricted and "may be curtailed whenever the institution's officials, in the exercise of their informed discretion, reasonably conclude that such associations . . . possess the likelihood of disruption to prison order or stability, or otherwise interfere with the legitimate penological objectives of the prison environment." Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 132 (1977); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).
In support of his claim that his right to freedom of association was violated, Govind states that he was placed in Ad. Seg. for five months and deprived of visits and phone calls for sixty days. (See Am. Compl. 5.) These restrictions were imposed as punishment for findings that Plaintiff was guilty of possessing inmate-manufactured alcohol and an inmate-manufactured weapon. (Def.'s Mem. Ex. C at 235, 253.)
Both the time in Ad. Seg. and the restrictions on visits and phone calls constituted reasonable limitations on Govind's free association rights by prison officials responsible for maintaining order and security in the prison. Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995) (citations omitted) (stating that "prison officials have a legitimate penological interest in administrative segregation, and they must be given 'wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security'"); see also Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984) (holding that prisoner must show that limitation on right to associate was arbitrary and unnecessary to the maintenance of order in the institution in order to state a constitutional claim).
Furthermore, a prisoner's "administrative segregation in and of itself does not implicate a protected liberty interest[,]" and "'[d]isplinary segregation, with insignificant exceptions, mirrors those conditions imposed upon inmates in administrative segregation. . . .'" Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (quoting Sandin v. Conner, 515 U.S. 472, 486 (1995)). Therefore, the restrictions on Plaintiff's association rights in Ad. Seg. would not rise to the level of a due process violation.
Thus, Sims's Motion for Summary Judgment should also be GRANTED as to Govind's free association claims.
2. Cruel and Unusual Punishment
Govind complains that conditions he endured in Ad. Seg. between January 27, 2002, and June 22, 2002, constitute cruel and unusual punishment. (Am. Compl. 5, 12-15.) To satisfy the objective requirement for a conditions of confinement claim, the prisoner must allege facts sufficient to show that the prison official's acts or omissions deprived him of the "minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834. "The discrete basic human needs that prison officials must satisfy include food, clothing, shelter, sanitation, medical care, and personal safety." Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986) (citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981)); see also Farmer, 511 U.S. at 832 (citations omitted) (containing a list of basic necessities). Prison conditions do not violate the Eighth Amendment unless they amount to "unquestioned and serious deprivations of basic human needs" or of the "minimal civilized measure of life's necessities."Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also Wilson v. Seiter, 501 U.S. 294, 298 (1991) (reiterating the "minimal civilized measure of life's necessities" standard).
Plaintiff alleges that Ad. Seg. is comprised of dirty cells, dirty clothing for inmates, cold cells, no heaters, no pillows, no blankets, and Govind was deprived of lunch and dinner on his first day in Ad. Seg. (Am. Compl. 5, 12.) Although these charges do not all implicate the Eighth Amendment, there is a constitutional obligation to provide prisoners with adequate shelter. See Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997). This includes protection from extreme cold. Id. Assuming the alleged Ad. Seg. conditions posed a "sufficiently serious" risk to plaintiff's health and safety, Govind nevertheless fails to establish that Sims was deliberately indifferent to the risks Ad. Seg. posed to Plaintiff or that Sims was responsible for him being held in Ad. Seg. See Farmer, 511 U.S. at 847; Redman, 942 F.2d at 1439-40.
Moreover, "[p]rison conditions may be harsh and uncomfortable without violating the Eighth Amendment's prohibition against cruel and unusual punishment." Dixon v. Godinez, 114 F.3d at 642 (citing Farmer, 511 U.S. 825). Defendant Sims is entitled to summary judgment on this claim.
D. Miscellaneous Complaints
After pleading his first three causes of action, Govind attaches ten pages of various charges, all of which he incorporates into each of the causes of action. (See Am. Compl. 3-5, 8-17.) The nonduplicative allegations raise an equal protection claim.
1. Equal Protection
The Supreme Court's "Equal Protection Clause jurisprudence establishes that 'whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection.'" Concrete Works of Colo., Inc. v. City County of Denver, 540 U.S. 1027, 1029 (2003) (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229-30 (1995)). The same principle applies to inmates. "[P]risoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race." Wolf v. McDonnell, 418 U.S. 539, 556 (1974).
The Fourteenth Amendment is not violated by unintentional conduct which may have a disparate impact. Washington v. Davis, 426 U.S. 229, 239 (1976). "[A] plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Protected classes include race, religion, national origin and poverty. Damiano v. Florida Parole Probation Comm'n, 785 F.2d 929, 932-33 (11th Cir. 1986).
In cases alleging racial discrimination, for example, "'[p]roof of racially discriminatory intent or purpose is required' to show a violation of the Equal Protection Clause." City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (citing Davis, 426 U.S. at 239)). Conclusory allegations of discrimination are insufficient to withstand a motion for summary judgment, unless they are supported by facts which may prove racially discriminatory intent or purpose. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) (quotingForsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988)).
Therefore, when an equal protection violation is alleged, the plaintiff must show that the defendant "acted in a discriminatory manner and that the discrimination was intentional." Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000) (citing FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991)). "Discriminatory purpose . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects." Miller v. Johnson, 515 U.S. 900, 916 (1995) (quoting Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)).
Govind alleges that Sims discriminated against him on the basis of race by: (1) "using physical force without provaction [sic]," (2) "strip search[ing]" Plaintiff in public, (3) routinely searching Govind's cell and destroying his property, and (4) calling him "O'Sama Binlarden" and "Taleban" in front of other inmates and guards. (Am. Compl. 4-5, 9-10, 12; Def.'s Mem. Ex. A at 29.)
Although Govind alleges Sims engaged in racial discrimination, his Complaint and deposition testimony show that he is complaining about discrimination based on national origin or religion. (Id.) Nevertheless, the standards are the same.Damiano, 785 F.2d at 932-33.
Claims of verbal harassment or abuse of prisoners by guards such as the statements attributed to Sims do not state a constitutional deprivation under § 1983. "Standing alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws." DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000); accord Williams v. Braumer, 180 F.3d 699, 706 (5th Cir. 1999); see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (citing Oltarzewski v. Ruggerio, 830 F.2d 136, 139 (9th Cir. 1987)) (stating that verbal harassment generally is not an Eighth Amendment violation). "As for being subjected to abusive language directed at his religion and ethnic background, verbal harassment or abuse . . . is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983."Freeman v. Arpaio, 125 F.3d at 738 (internal quotation marks and citations omitted).
Even "the use of racially derogatory language, unless it is pervasive or severe enough to amount to racial harassment, will not by itself violate the fourteenth amendment." Blades v. Schuetzle, 302 F.3d 801, 805 (8th Cir. 2002). Derogatory language or an epithet can be evidence of "animus, an essential element of any equal protection claim." Williams, 180 F.3d at 706 n. 3. See Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1128 (9th Cir. 2000) (holding that statement that "two Chinks" in the department were "more than enough" was strong evidence of discrimination on the basis of national origin). However, even if the claimed verbal harassment occurred, Govind's complaint suffers from a fatal flaw: There is no proof that any corresponding acts occurred where someone similarly situated was treated differently. See Fales v. Garst, 235 F.3d 1122, 1123 (8th Cir. 2001); Yates v. Stalder, 217 F.3d 332, 334 (5th Cir. 2000). An equal protection claim is premised upon unequal treatment. Evidence of this is lacking. Furthermore, Plaintiff's Complaint contains conclusory allegations of discrimination without specific evidence of discriminatory intent. That is not enough to prevent Sims's Motion for Summary Judgment from being granted. See Vill. of Arlington Heights, 429 U.S. at 265; Peterson, 358 F.3d at 603 (quoting Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988)).
Because Govind has not presented a triable issue of material fact on his race discrimination/equal protection claim, Defendant's Motion for Summary Judgment should be GRANTED for this claim.
IV. CONCLUSION
For the reasons set forth above, Sims's Motion for Summary Judgment should be GRANTED.
This Report and Recommendation will be submitted to the United States District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b) (1). Any party may file written objections with the Court and serve a copy on all parties on or before February 28, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before March 10, 2006. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).