1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas Wayne Derello, Jr., No. CV 18-03575-PHX-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 Unknown Sanchez, et al., 13 Defendants.
14 15 Plaintiff Douglas Wayne Derello, Jr., who is currently confined in Arizona State 16 Prison Complex-Eyman, brought this civil rights action pursuant to 42 U.S.C. § 1983. 17 (Doc. 1.) Defendant Harris moves for summary judgment, and Plaintiff opposes.1 (Docs. 18 176, 208.) 19 I. Background 20 In his Complaint, Plaintiff relevantly alleged as follows. On June 16, 2017, Plaintiff 21 was transferred to the custody of the Arizona Department of Corrections (ADC) and 22 brought four legal boxes, a trash bag full of legal papers, and his cane. (Doc. 7 at 3.) An 23 officer told Plaintiff that he would go through the legal materials and return them to 24 Plaintiff, but Sanchez told Plaintiff his property would not be returned. (Id.) Sanchez then 25 asked Plaintiff if he was still suing the prison and when Plaintiff replied affirmatively, 26 Sanchez stated that in that case, Plaintiff would not get any property. (Id.) On June 19, 27 28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) regarding the requirements of a response. (Doc. 178.) 1 2017, Plaintiff submitted an inmate letter regarding his property and cane to a correctional 2 officer and Defendant Harris, the property supervisor. (Id. at 4.) On June 26, Plaintiff told 3 Defendant Harris that he filed a grievance regarding the withholding of his legal property 4 and Harris responded “I will show you what your grievance filing mean[s] to me” and 5 several weeks later, Harris sent Plaintiff a document indicating that his property was being 6 stored. (Id.) 7 After that, the more Plaintiff requested his legal property “the wors[e his] plight 8 became” and although Plaintiff informed Defendant Doe about the adverse treatment 9 against him, Doe did nothing about it. (Id. at 4-5.) When Plaintiff was moved to a new 10 unit, he discovered that his property had been inventoried by Defendant Lewis, that his 11 purchased clothing and a lot of his legal materials were missing, and when he returned to 12 his original unit “four days later,” he went “through the same problems with Harris 13 [regarding his] legal material.” (Id. at 7.) On November 2, a property officer delivered a 14 lot of Plaintiff’s legal documents and told Plaintiff that Harris instructed the officer to give 15 the legal property to Plaintiff and that the officer would try to find Plaintiff’s clothes and 16 the rest of his legal work. (Id. at 5.) On November 7, Sanchez and another officer went to 17 Plaintiff’s cell and asked him if he was going to file another grievance against her regarding 18 his property, and when he arrived at the new unit, all the property he received from the 19 property officer was gone. (Id.) 20 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 21 First Amendment retaliation claims against Defendants Harris and Sanchez, a failure to 22 supervise claim against Defendant Doe, and an Eighth Amendment medical care claim 23 against Defendant Igwe. (Id. at 8-9.) The Court dismissed the remaining claims and 24 Defendants. (Id. at 10.) Thereafter, Defendant Doe was dismissed because Plaintiff did 25 not file a timely notice of substitution, Defendant Sanchez was dismissed for failure to 26 timely effect service of process, and summary judgment was granted in favor of Defendant 27 Igwe. (Docs. 45, 58, 171.) 28 . . . . 1 Defendant Harris argues that he is entitled to summary judgment because there is 2 no evidence that Harris retaliated against Plaintiff. 3 II. Legal Standards 4 A. Summary Judgment 5 A court must grant summary judgment “if the movant shows that there is no genuine 6 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 7 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 8 movant bears the initial responsibility of presenting the basis for its motion and identifying 9 those portions of the record, together with affidavits, if any, that it believes demonstrate 10 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 11 If the movant fails to carry its initial burden of production, the nonmovant need not 12 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 13 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 14 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 15 contention is material, i.e., a fact that might affect the outcome of the suit under the 16 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 17 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 18 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 19 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 20 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 21 it must “come forward with specific facts showing that there is a genuine issue for trial.” 22 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 23 citation omitted); see Fed. R. Civ. P. 56(c)(1). 24 At summary judgment, the judge’s function is not to weigh the evidence and 25 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 26 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 27 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 28 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 1 B. First Amendment Retaliation 2 “[A] viable claim of First Amendment retaliation entails five basic elements: 3 (1) [a]n assertion that a [government] actor took some adverse action against an inmate 4 (2) because of (3) that inmate’s protected conduct, and that such action (4) chilled the 5 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 6 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 7 Cir. 2005). 8 III. Facts2 9 At all times between June 16, 2017, and November 7, 2017, Plaintiff was in the 10 custody of the ADC. (Doc. 179-1 ¶ 1; Doc. 209 at 3 ¶ 1.) Defendant Sergeant Harris has 11 been employed by the ADC since 2008. (Doc. 179-1 ¶ 2; Doc.
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1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas Wayne Derello, Jr., No. CV 18-03575-PHX-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 Unknown Sanchez, et al., 13 Defendants.
14 15 Plaintiff Douglas Wayne Derello, Jr., who is currently confined in Arizona State 16 Prison Complex-Eyman, brought this civil rights action pursuant to 42 U.S.C. § 1983. 17 (Doc. 1.) Defendant Harris moves for summary judgment, and Plaintiff opposes.1 (Docs. 18 176, 208.) 19 I. Background 20 In his Complaint, Plaintiff relevantly alleged as follows. On June 16, 2017, Plaintiff 21 was transferred to the custody of the Arizona Department of Corrections (ADC) and 22 brought four legal boxes, a trash bag full of legal papers, and his cane. (Doc. 7 at 3.) An 23 officer told Plaintiff that he would go through the legal materials and return them to 24 Plaintiff, but Sanchez told Plaintiff his property would not be returned. (Id.) Sanchez then 25 asked Plaintiff if he was still suing the prison and when Plaintiff replied affirmatively, 26 Sanchez stated that in that case, Plaintiff would not get any property. (Id.) On June 19, 27 28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) regarding the requirements of a response. (Doc. 178.) 1 2017, Plaintiff submitted an inmate letter regarding his property and cane to a correctional 2 officer and Defendant Harris, the property supervisor. (Id. at 4.) On June 26, Plaintiff told 3 Defendant Harris that he filed a grievance regarding the withholding of his legal property 4 and Harris responded “I will show you what your grievance filing mean[s] to me” and 5 several weeks later, Harris sent Plaintiff a document indicating that his property was being 6 stored. (Id.) 7 After that, the more Plaintiff requested his legal property “the wors[e his] plight 8 became” and although Plaintiff informed Defendant Doe about the adverse treatment 9 against him, Doe did nothing about it. (Id. at 4-5.) When Plaintiff was moved to a new 10 unit, he discovered that his property had been inventoried by Defendant Lewis, that his 11 purchased clothing and a lot of his legal materials were missing, and when he returned to 12 his original unit “four days later,” he went “through the same problems with Harris 13 [regarding his] legal material.” (Id. at 7.) On November 2, a property officer delivered a 14 lot of Plaintiff’s legal documents and told Plaintiff that Harris instructed the officer to give 15 the legal property to Plaintiff and that the officer would try to find Plaintiff’s clothes and 16 the rest of his legal work. (Id. at 5.) On November 7, Sanchez and another officer went to 17 Plaintiff’s cell and asked him if he was going to file another grievance against her regarding 18 his property, and when he arrived at the new unit, all the property he received from the 19 property officer was gone. (Id.) 20 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 21 First Amendment retaliation claims against Defendants Harris and Sanchez, a failure to 22 supervise claim against Defendant Doe, and an Eighth Amendment medical care claim 23 against Defendant Igwe. (Id. at 8-9.) The Court dismissed the remaining claims and 24 Defendants. (Id. at 10.) Thereafter, Defendant Doe was dismissed because Plaintiff did 25 not file a timely notice of substitution, Defendant Sanchez was dismissed for failure to 26 timely effect service of process, and summary judgment was granted in favor of Defendant 27 Igwe. (Docs. 45, 58, 171.) 28 . . . . 1 Defendant Harris argues that he is entitled to summary judgment because there is 2 no evidence that Harris retaliated against Plaintiff. 3 II. Legal Standards 4 A. Summary Judgment 5 A court must grant summary judgment “if the movant shows that there is no genuine 6 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 7 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 8 movant bears the initial responsibility of presenting the basis for its motion and identifying 9 those portions of the record, together with affidavits, if any, that it believes demonstrate 10 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 11 If the movant fails to carry its initial burden of production, the nonmovant need not 12 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 13 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 14 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 15 contention is material, i.e., a fact that might affect the outcome of the suit under the 16 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 17 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 18 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 19 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 20 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 21 it must “come forward with specific facts showing that there is a genuine issue for trial.” 22 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 23 citation omitted); see Fed. R. Civ. P. 56(c)(1). 24 At summary judgment, the judge’s function is not to weigh the evidence and 25 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 26 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 27 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 28 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 1 B. First Amendment Retaliation 2 “[A] viable claim of First Amendment retaliation entails five basic elements: 3 (1) [a]n assertion that a [government] actor took some adverse action against an inmate 4 (2) because of (3) that inmate’s protected conduct, and that such action (4) chilled the 5 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 6 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 7 Cir. 2005). 8 III. Facts2 9 At all times between June 16, 2017, and November 7, 2017, Plaintiff was in the 10 custody of the ADC. (Doc. 179-1 ¶ 1; Doc. 209 at 3 ¶ 1.) Defendant Sergeant Harris has 11 been employed by the ADC since 2008. (Doc. 179-1 ¶ 2; Doc. 209 at 3 ¶ 2.) Between 12 June 16, 2017 and November 7, 2017, Harris was a Sergeant assigned to the Mail and 13 Property Room at ASPC-Eyman Special Management Unit (SMU). (Doc. 179-1 ¶ 3; Doc. 14 209 at 3 ¶ 3.) 15 On or about June 18, 2017, Plaintiff was assigned to housing at Eyman-SMU I East, 16 locator code A38. (Doc. 179-1 ¶ 4; Doc. 209 at 3 ¶ 4.) On or about October 12, 2017, 17 Plaintiff was assigned to housing at Eyman-Cook Unit, locator code A14. (Doc. 179-1 ¶ 5; 18 Doc. 209 at 3 ¶ 5.) On or about October 17, 2017, Plaintiff was assigned to housing at 19 Eyman-SMU Detention, locator code A34. (Doc. 179-1 ¶ 6; Doc. 209 at 3 ¶ 6.) On or 20 about November 1, 2017, Plaintiff was assigned to housing at Eyman-SMU Temp CDU 21 (detention), locator code A67. (Doc. 179-1 ¶ 7; Doc. 209 at 3 ¶ 7.) On or about November 22 7, 2017, Plaintiff was assigned to housing at Eyman-Rynning Unit (Rynning), locator code 23 24 2 Plaintiff claims to dispute some of Defendant’s stated facts, but does not state the 25 nature of his dispute in his statement of facts. In some instances, when Plaintiff disputes an asserted fact, Plaintiff cites to certain exhibits. The Court has reviewed the exhibits 26 attached to Plaintiff’s controverting statement of facts and is unable to ascertain Plaintiff’s 27 disputes. See generally Doc. 209. In his Response, Plaintiff does clarify the reasons for disputing certain facts, but his disputes are largely based on his asserted failure to obtain 28 relevant discovery or are based on facts that do not actually dispute Defendant’s asserted facts. 1 A60. (Doc. 179-1 ¶ 8; Doc. 209 at 3 ¶ 8.) Plaintiff was assigned to Rynning until he was 2 moved to the ASPC-Florence in January of 2018. (Doc. 179-1 ¶ 8; Doc. 209 at 3 ¶ 8.) 3 Between June 16, 2017 through November 7, 2017 Department Order (DO) 909, 4 Inmate Property, governed the ADC’s Inmate Property Procedure. (Doc. 179-1 ¶ 9; Doc. 5 209 at 3 ¶ 9.) Pursuant to DO 909, regardless of whether an inmate lives in a cell or dorm 6 setting, an inmate is permitted to keep four “banker” style storage boxes, which are sold in 7 the inmate store, in his immediate living area. (Doc. 179-1 ¶ 10; Doc. 209 at 4 ¶ 10.) An 8 inmate is limited to one storage box for “personal” and/or “religious” property and up to 9 three storage boxes for “legal material” and official Department correspondence. (Doc. 10 179-1 ¶ 11.) Boxes that exceed the permissible number permitted in the inmate’s 11 immediate living area shall be kept in the Property Department’s storage. (Doc. 179-1 12 ¶ 11; Doc. 209 at 4 ¶ 11; Doc. 210 ¶ 2.) If an inmate wishes to obtain access to a box in 13 storage, the inmate submits an Inmate Letter. (Doc. 179-1 ¶ 11; Doc. 209 at 4 ¶ 11.) If an 14 inmate already possesses the maximum number of legal boxes permitted in his immediate 15 living area, the inmate must trade out a box from his immediate living area in order to 16 receive a legal box kept in storage. (Doc. 179-1 ¶ 11; Doc. 209 at 4 ¶ 11.) 17 A staff member completes an inventory of an inmate’s property, using the Inmate 18 Property Inventory, Form 909-4, and when appropriate, the Inmate Property Inventory 19 Supplement, Form 909-1, when the inmate is, among other times, transferred from one 20 institution to another institution, transferred from one unit to a unit of a higher custody 21 level, or is assigned to a temporary placement. (Doc. 179-1 ¶ 12; Doc. 209 at 4 ¶ 12.) 22 A staff member at the sending unit or institution packs the inmate’s property, 23 including any property in storage. (Doc. 179-1 ¶ 13; Doc. 209 at 4 ¶ 13.) Staff members 24 search the inmate’s property, looking for contraband, suspicious, or excessive property. 25 (Doc. 179-1 ¶ 13; Doc. 209 at 4 ¶ 13.) Officer(s) complete an inventory filling in preprinted 26 areas, where applicable, and provide descriptions for property not already preprinted to 27 include, where applicable, the make, model designation, serial number, color and size, 28 distinguishing marks, signatures, engravings, and visible condition (poor, fair, good), 1 working condition (W = working, N = new, U = used, NW = not working), and any other 2 identifying characteristics of the inmate’s property items. (Doc. 179-1 ¶ 13; Doc. 209 at 4 3 ¶ 13.) Boxes containing legal materials are labeled with the inmate’s last name and ADC 4 #, if not already labeled. (Doc. 179-1 ¶ 13; Doc. 209 at 4 ¶ 13.) Excess or non-transferrable 5 property is boxed and processed pursuant to DO 909. (Doc. 179-1 ¶ 13; Doc. 209 at 4 6 ¶ 13.) Property that has been inventoried is stored in a secure area until the time of 7 transportation. (Doc. 179-1 ¶ 13; Doc. 209 at 4 ¶ 13.) 8 Transporting staff accepts the inmate property files from the sending unit, loads the 9 property, signs for sealed containers, does not accept unsealed or damaged containers, and 10 completes Information Reports (IR), Form 105-2, and delivers the IRs to receiving staff 11 regarding any containers that are lost, opened, or damaged in transit. (Doc. 179-1 ¶ 14; 12 Doc. 209 at 4 ¶ 14.) Staff at the receiving institution process inmate property in the order 13 it is received. (Doc. 179-1 ¶ 15; Doc. 209 at 4 ¶ 15.) Consequently, when a large number 14 of inmates are received, the length of the queue and an inmate’s position in the queue 15 determine the length of time for staff to process that particular inmate’s property. (Doc. 16 179-1 ¶ 15; Doc. 209 at 4 ¶ 15.) 17 Receiving staff search incoming property for contraband, excessive property, and 18 property not permitted at the receiving institution due to its increased custody level, e.g., 19 paperclips, staples, binder clips. (Doc. 179-1 ¶ 16; Doc. 209 at 4 ¶ 16.) Additional 20 search(es) may be performed by the Special Security Unit (SSU) and/or the Criminal 21 Investigations Unit (CIU). (Doc. 179-1 ¶ 16; Doc. 209 at 4 ¶ 16.) Staff document 22 unauthorized property on the Inmate Property Inventory form(s) and Inmate 23 Property/Contraband/Disposition Tracking forms. (Doc. 179-1 ¶ 16; Doc. 209 at 4 ¶ 16.) 24 The receiving institution conducts an inventory by cross-checking the inmate’s 25 property with the Inventory form(s) and notes this in the “Receiving” column by signing 26 the Officer’s initials or noting the status of the property, and notes any irregularities 27 appearing during the inventory in the “comments” section. (Doc. 179-1 ¶ 17; Doc. 209 at 28 4 ¶ 17.) The status of property issued to an inmate may be denoted by an “I,” property not 1 given to an inmate because it is determined to be contraband may be denoted by a “C,” 2 property not received by the receiving institution may be denoted by “DNR” (did not 3 receive), and property placed in storage may be noted by the word “stored” or “storage” or 4 something similar. (Doc. 179-1 ¶ 17; Doc. 209 at 4 ¶ 17.) 5 According to the Inmate Property Transfer Log (Transfer Log), on June 16, 2017, 6 Plaintiff returned to the ADC with four boxes of property, three (large garbage) bags of 7 property, and a cane. (Doc. 179-1 ¶ 18.) According to the Transfer Log, Plaintiff’s 8 property arrived on June 16, 2017, and was checked in by staff “AK.” (Id.) The code 9 “AK” does not belong to or identify Defendant Harris. (Id.) Also, the Transfer Log shows 10 that Plaintiff’s property inventory was completed on July 16, 2017, by staff “SMLL.” (Id.) 11 The code “SMLL” does not belong to or identify Defendant Harris. (Id.) 12 The month prior to Plaintiff’s return to the ADC, approximately 128 inmates3 were 13 transferred to SMU. (Doc. 179-1 ¶ 19.) Consequently, during the time period when 14 Plaintiff’s property was being processed, the average processing time was four weeks 15 because Plaintiff’s property was processed after the 128 inmates who had arrived before 16 him. (Id.) Staff finished processing Plaintiff’s property on or about July 16, 2017, which 17 is exactly four weeks from the date he arrived at the ADC. (Id.) 18 On June 21, 2017, staff delivered Plaintiff’s property that had remained stored at the 19 ADC during the time that he was out to court and in the custody of the Maricopa County 20 Sheriff’s Office. (Id. ¶ 20.) Plaintiff signed the document on June 21, 2017. (Id.) On July 21 16, 2017, CO II McCabe created an inventory of some of Plaintiff’s property, including 22 four legal boxes and one box of legal paper that were to be kept in storage. (Id. ¶ 21.)4 On 23 24 3 Plaintiff asserts that only 51 inmates were transferred at that time (Doc. 208 ¶ 5), 25 but Plaintiff’s contention does not controvert Defendants’ fact that additional inmates were transferred in the month of Plaintiff’s transfer. Moreover, the number of inmates 26 transferred in the month prior to Plaintiff’s transfer is not material to deciding the Motion 27 for Summary Judgment. 28 4 Plaintiff appears to dispute the contents of the inventory done by McCabe (Doc. 208 ¶ 7), but resolution of this issue is not material to resolving the Motion for Summary 1 July 17, 2017, Plaintiff signed the Inventory form. (Id.) 2 On October 11, 2017, CO II T. Lewis completed an Inmate Property Inventory for 3 Plaintiff. (Id. ¶ 22.) CO II Lewis worked the Graveyard Shift from 2200 hours (10:00 4 p.m.) to 0600 hours (6:00 a.m.). (Id.) On October 11, 2017, Defendant Harris worked the 5 Day Shift from 0600 hours (6:00 a.m.) to 1400 hours (2:00 p.m.). (Id.) Defendant Harris 6 was not at work at the time CO II Lewis performed the Inmate Property Inventory of 7 Plaintiff’s property because he left the prison after his shift and before the Graveyard Shift 8 began. (Id.) 9 On October 12, 2017, Plaintiff was moved from SMU to Cook Unit. (Doc. 179-1 10 ¶ 23; Doc. 209 at 5 ¶ 23.) The receiving institution checked in Plaintiff’s property and 11 noted that the following items were not received: 2 pants (orange); 5 T-shirts (orange); 3 12 boxers (white); 1 sweat pants (orange); 2 shirts; 2 sweaters; and 3 long-sleeve shirts. (Doc. 13 179-1 ¶ 24.) 14 On October 16, 2017, Officers CO II Moran and Gorman, who worked at the 15 sending institution, Cook, inventoried Plaintiff’s property. (Id. ¶ 25.) The Officers noted 16 that they sent three items that had been kept in storage: 5 storage boxes; 5 expanding files 17 with paper; and 2 plastic expanding files. (Id.) 18 On October 17, 2017, Plaintiff was moved from Cook to SMU. (Doc. 179-1 ¶ 26; 19 Doc. 209 at 5 ¶ 26.) At the receiving institution, CO II Garcia checked-in the inventory. 20 (Doc. 179-1 ¶ 27; Doc. 209 at 4 ¶ 27.) According to the Inmate Property Inventory dated 21 November 16, 2017, the following items were not delivered to Plaintiff, but were 22 determined to be contraband: 5 storage boxes; 5 expanding files with paper; and 2 plastic 23 expanding files. (Doc. 179-1 ¶ 27; Doc. 209 at 5 ¶ 27.) 24 On November 1, 2017, Plaintiff signed the Inmate Property Inventory forms. (Doc. 25 179-1 ¶ 28.) According to the Inventory, no comments were made that any of Plaintiff’s 26 property was missing, as required by DO 909, § 909.05, Subsection 1.9 et seq. (Id.)5 27 Judgment. 28 5 Plaintiff asserts that he was not given an opportunity to indicate that anything was 1 On November 2, 2017, CO II Garcia completed an Inmate Property Inventory 2 Supplement showing that Plaintiff numbered and placed four legal boxes “in long-term 3 legal exchange.” (Doc. 179-1 ¶ 29.)6 On November 2, 2017, Plaintiff signed the Inventory 4 form. (Id.) Defendant Harris first found out that Plaintiff had filed a lawsuit, Douglas 5 Wayne Derello v. Unknown Jackson, et al., U.S.D.C. CV17-01266-PHX-DGC (JFM), in 6 or about April of 2019 when he was advised by his attorney, Lucy Rand. (Doc. 179-1 7 ¶ 30.) 8 On June 26, 2017, the date Plaintiff claims that Defendant Harris made threatening 9 statements to him in retaliation for his filing Derello v. Jackson, Plaintiff had not yet served 10 any defendants. (Id. ¶ 31.) After Plaintiff’s property was prepared and secured for his 11 transport on October 12, 2017, Defendant Harris did not access or cause anyone else to 12 access Plaintiff’s property in order to remove any items or for any other reason. (Id. ¶ 32.) 13 Defendant Harris is unaware of how Plaintiff’s property was lost. (Doc. 179-1 ¶ 33; Doc. 14 209 ¶ 33.) 15 Plaintiff asserts that his claimed retaliation is unrelated to Derello v. Jackson,7 but 16 rather that on June 26, 2017, he spoke to Defendant Harris where Defendant Harris asked 17 Plaintiff whether he had talked to Sanchez about his property and stated that Plaintiff was 18 lucky to get any property because “they do not go against their own,” apparently in 19 reference to Sanchez not giving Plaintiff his property. (Doc. 208 ¶ 13.) Plaintiff states that 20
21 missing at this time. (Doc. 208 ¶ 11.) 22 6 Plaintiff asserts that these boxes are not relevant to the boxes he was attempting to 23 obtain. (Doc. 208 ¶ 12.) 24 7 Plaintiff also indicates that Harris might have known about Derello v. Jackson 25 because documents related to that case were in his property files. (Doc. 208 ¶ 13.) Plaintiff asserts that he does not know whether Harris knew about those files because he did not 26 pursue that line of discovery. (Id.) Plaintiff’s speculation that Harris may have known 27 about his lawsuit is insufficient to create a dispute. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory, speculative testimony in affidavits and 28 moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.”). 1 at that time, he told Harris that he had filed grievances about his legal property/cane and 2 that Harris, as the property supervisor, had control over whether Plaintiff received his legal 3 property/cane, and that Harris replied, “I will show you what your grievance filing means 4 to me.” (Id.) 5 Chapter 7, Section 1.9, Special Needs Orders (“SNOs”), Subsection 1.1, of the 6 Health Services Technical Manual (“HSTM”), revised July 1, 2016, states that 7 “Correctional and Classification staff must be advised of inmate’s special needs that may 8 affect housing, work, and program assignments; disciplinary measures; and admissions to 9 and transfers from institutions. (Doc. 179-1 ¶ 36.) Such communications must be 10 documented via an approved Special Needs Order form and performed in such a manner 11 that does not compromise confidentiality of health information.” (Id.) 12 According to Plaintiff’s medical record, on June 16, 2017, Plaintiff was seen by 13 Registered Nurse (“RN”) Shelby Gillespie for intake and screening and the taking of his 14 vitals. (Doc. 179-1 ¶ 37; Doc. 209 at 6 ¶ 37.) According to his medical record, on June 15 17, 2017, Nurse Gillespie saw Plaintiff in response to the initiation of the Incident 16 Command System (“ICS”), a system that advises staff that the allocation of resources, such 17 as staff, is necessary. (Doc. 179-1 ¶ 38.) Nurse Gillespie noted in the “Subjective” or “S” 18 area of the medical note that “[Plaintiff] arrived to medical[,] stated he fell asleep with his 19 fit [sic] up in his [wheelchair], and then fell out and hit his head.” (Id.) Gillespie further 20 noted that “[Plaintiff] fell asleep without his sleep apnea machine on.” (Id.) Under the 21 “Objective” or “O” area, Gillespie noted that “Inmate has small reddened area to the back 22 of his head, no bump, [alert and oriented] x4.” (Id.) Under the “Education” or “E” area of 23 the medical note, Nurse Gillespie noted that Plaintiff was educated about “sleep apnea” 24 and “sleeping in [wheelchair].” (Id.) According to his medical record, on June 23, 2017, 25 provider Natalya Weigel, Nurse Practitioner (“NP”), saw Plaintiff and noted that she was 26 “putting SNO in per DOC request.” (Id. ¶ 39.) Weigel authorized Plaintiff to possess a 27 quad cane to expire on June 2, 2019. (Id.) Weigel noted under the “Education” or “E” 28 area of the medical note that “instructions regarding SNO were given to [patient], he 1 verbalized understanding.” (Id.) According to his medical record, on July 18, 2017, NP 2 Weigel saw Plaintiff and completed and signed a SNO form for a quad cane, lower bunk, 3 lower tier, wheelchair for long distances, side restraints, CPAP machine, right wright brace, 4 shower chair, and extra blanket, which Plaintiff also signed. (Id. ¶ 40.) 5 Pursuant to the HSTM, Plaintiff’s SNO for a quad cane was effective on July 18, 6 2017, when it was documented on an approved SNO form. (Id. ¶ 41.) From June 16, 2017, 7 through July 18, 2017, Plaintiff did not have a documented SNO to possess a quad cane. 8 (Id. ¶ 42.) 9 IV. Discussion 10 Defendant Harris argues that he is entitled to summary judgment because there is 11 no evidence that Defendant Harris retaliated against Plaintiff because there is no evidence 12 that Harris, a non-party to Derello v. Jackson knew that Plaintiff had filed Derello v. 13 Jackson at the time Plaintiff’s property was not given to him, that at the relevant time 14 Plaintiff did not have medical authorization for a cane, and although the medical provider 15 had approved Plaintiff for a cane, the medical provider did not properly complete the 16 paperwork, leaving Plaintiff without the proper paperwork to obtain a cane. Defendant 17 further argues that there is no evidence that Harris interfered with Plaintiff’s receipt of his 18 property, but rather the evidence shows that 128 prisoners were processed at the same time 19 and had to wait to receive their property, that Harris was not involved in the storage of 20 Plaintiff’s property on July 17, 2017, and had no involvement with the inventory or storing 21 of Plaintiff’s property thereafter. 22 In Response, Plaintiff asserts that Harris, as the supervisor of the property room, had 23 control over whether Plaintiff received his property and on June 26, in response to 24 Plaintiff’s statements that he had filed grievances relating to not receiving his property, 25 Harris stated “I will show you what your grievance filing means to me.” 26 There is no evidence in this record that Defendant Harris ever took control of 27 Plaintiff’s property or acted to delay Plaintiff’s receipt of his property. Plaintiff alleges 28 that Defendant Harris withheld his legal boxes, but does not allege any facts suggesting 1| that Harris was motivated by Plaintiff's exercise of his First Amendment rights. Plaintiff asserts that on June 26, 2017, he told Harris about some grievances relating to him not receiving his property and Sanchez not giving Plaintiff his property and Harris said “T will show you what your grievance filing means to me,” but the meaning of this statement is not clear; Plaintiff also alleges that later, in July 2017, Harris sent him a document 6| indicating his legal documents had been stored, and that in November 2017, his legal property was given to him at the direction of Defendant Harris, but was later taken by other 8 | ADC employees. Plaintiff also alleged that in November 2017, Harris told him he would try to find the rest of Plaintiff's legal work and clothes. (Doc. | at 9.) 10 Because there is no evidence that Harris was involved in either withholding 11 | Plaintiffs property or destroying it and Plaintiff's allegations are inconsistent with Harris acting in retaliation for Plaintiff filing a grievance or lawsuit, summary judgment will be 13 | granted in favor of Defendant Harris. 14| ITIS ORDERED: 15 (1) The reference to the Magistrate Judge is withdrawn as to Defendant Harris’s 16 | Motion for Summary Judgment (Doc. 176). 17 (2) Defendant Harris’s Motion for Summary Judgment (Doc. 176) is granted 18 | and the action is terminated. 19 (3) The Clerk of the Court must enter Judgment accordingly. 20 Dated this 15th day of January, 2021. 21 Wichad T. gibuade Michael T. Liburdi 24 United States District Judge 25 26 27 28