1 SM 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 JD Merrick, No. CV-22-00156-TUC-JGZ 10 Plaintiff, 11 v. ORDER 12 David Shinn, et al., 13 Defendants.
14 15 Plaintiff JD Merrick, who is currently confined in the Arizona State Prison Complex 16 (ASPC)-Tucson, Rincon Unit, brought this pro se civil rights action pursuant to 42 U.S.C. 17 § 1983. (Doc. 94.) Before the Court are Plaintiff’s Motion for a Temporary Restraining 18 Order and Temporary Injunction (Doc. 58), Motion for Reconsideration (Doc. 100), and 19 Motion for Summary Judgment (Doc. 115), and Defendants’ Motion for Summary 20 Judgment.1 (Doc. 116.) 21 I. Background 22 On screening Plaintiff’s Fourth Amended Complaint (Doc. 94) under 28 U.S.C. 23 § 1915A(a), the Court determined that Plaintiff stated a First Amendment retaliation claim 24 against Defendants Shinn, Martinez, Savoie, and Rojas in their individual capacities in 25 Count One; an Eighth Amendment medical care claim against Defendant Martinez in 26 Count Two; and a Fourteenth Amendment due process claim in Count Three against 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. 119.) 1 Defendant Thornell in his official capacity and Defendant McCoy in his individual 2 capacity. (Doc. 93 at 9.) The Court ordered these Defendants to answer the respective 3 claims against them and dismissed the remaining claims and Defendants. (Id.) The parties 4 subsequently stipulated to dismiss Count Two (Doc. 102), and the Court granted the 5 stipulation and dismissed that claim (Doc. 105). 6 Plaintiff moves for summary judgment on Count One. (Doc. 115.) Defendants 7 Martinez, Rojas, Savoie, Shinn, and Thornell move for summary judgment on Plaintiff’s 8 remaining claims in Counts One and Three.2 (Doc. 116.) Plaintiff also seeks 9 reconsideration of the Court’s July 26, 2023 Order denying his Motion for 10 Sanctions/Motion to Compel. (Doc. 100.) 11 II. Motion for Reconsideration 12 “The Court will ordinarily deny a motion for reconsideration of an Order absent a 13 showing of manifest error or a showing of new facts or legal authority that could not have 14 been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). No 15 motion for reconsideration of an Order may repeat any oral or written argument made in 16 support of or in opposition to the motion that resulted in the Order. Id. “Absent good cause 17 shown,” a motion for reconsideration must be filed “no later than fourteen (14) days after 18 the date of the filing of the Order that is the subject of the motion.” LRCiv 7.2(g)(2). 19 In its July 26, 2023 Screening Order, the Court denied Plaintiff’s Motion for 20 Sanctions/Motion to Compel (Doc. 78), noting that “Federal Rule of Civil Procedure 21 37(a)(3)(B)(iii) provides that a party may move to compel a discovery response when a 22 party fails to answer an interrogatory. Upon reviewing Plaintiff’s Motion, Plaintiff objects 23 to the accuracy and/or credibility of some of Defendants’ responses to his interrogatories. 24 (See id.) This is not a valid basis for relief under Rule 37.” (Doc. 93 at 7.) In his Motion 25 for Reconsideration, dated August 15, 2023, Plaintiff moves the Court to reconsider its 26 denial of his Motion for Sanctions/Motion to Compel. (Doc. 100.) Plaintiff argues that
27 2 Defendant McCoy is not a participant in Defendants’ Motion for Summary 28 Judgment. McCoy was not served until November 9, 2023, (Doc. 121), and his deadline to file a dispositive motion does not expire until May 2, 2024. (See Doc. 135.) 1 his Motion was “not merely focused on the defendants’ credibility” and that “Plaintiff 2 simply pointed to the obvious inconsistency of the defendants’ Answer to the Complaint 3 and their answers to some of the discovery requests in driving home just how evasive they 4 were.” (Id. at 2.) 5 Plaintiff’s Motion for Reconsideration is untimely because it was not filed within 6 14 days of the Court’s Order denying the Motion for Sanctions/Motion to Compel. LRCiv 7 7.2(g)(2). Moreover, none of Plaintiff’s arguments are based on new facts that arose or 8 became known after the Court’s July 26, 2023 Order. Nor does Plaintiff identify a change 9 in the law that occurred after the Court’s decision or show that the Court failed to consider 10 facts that were presented before the decision. Rather, Plaintiff effectively asks the Court 11 to rethink what it has already thought through, which is not a proper basis for 12 reconsideration. Contrary to Plaintiff’s assertions, the Court did consider Plaintiff’s 13 challenges to Defendants’ responses to the interrogatories and determined that sanctions 14 were not warranted. The Court has already addressed and rejected Plaintiff’s arguments. 15 As such, the Motion for Reconsideration is denied. 16 III. Summary Judgment Standard 17 A court must grant summary judgment “if the movant shows that there is no genuine 18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 19 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The 20 movant bears the initial responsibility of presenting the basis for its motion and identifying 21 those portions of the record, together with affidavits, if any, that it believes demonstrate 22 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. A genuine dispute 23 exists if “the evidence is such that a reasonable jury could return a verdict for the 24 nonmoving party,” and material facts are those “that might affect the outcome of the suit 25 under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 26 A movant is entitled to judgment as a matter of law against a party who fails to make 27 a showing sufficient to establish the existence of an element essential to that party’s case, 28 and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In 1 Celotex, the Supreme Court explained: “In such a situation, there can be ‘no genuine issue 2 as to any material fact,’ since a complete failure of proof concerning an essential element 3 of the nonmoving party’s case necessarily renders all other facts immaterial. The moving 4 party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed 5 to make a sufficient showing on an essential element of her case with respect to which she 6 has the burden of proof.” Id. at 322–23. 7 At summary judgment, the judge’s function is not to weigh the evidence and 8 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 9 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 10 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 11 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 12 IV. Count One – Retaliation 13 In Count One, Plaintiff alleges that Defendants Shinn, Martinez, Savoie, and Rojas 14 interfered with his email and incoming and outgoing mail in retaliation for Plaintiff 15 reporting alleged deliberate indifference to the Inmate Advocacy Group (IAG). 16 A. Legal Standard 17 A viable claim of First Amendment retaliation contains five basic elements: (1) an 18 assertion that a state actor took some adverse action against a prisoner (2) because of 19 (3) that prisoner’s protected conduct, and that such action (4) chilled the prisoner’s exercise 20 of his First Amendment rights (or that the prisoner suffered more than minimal harm) and 21 (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 22 F.3d 559, 567–68 (9th Cir. 2005); Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997). 23 Plaintiff has the burden of proving his First Amendment retaliation claim at trial. See 24 generally Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (discussing proof prisoner- 25 plaintiff must present to defeat motion for summary judgment on retaliation claim); see 26 also Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (stating plaintiff bears the burden 27 of pleading and proving the absence of legitimate correctional goals for the conduct of 28 which he complains). 1 B. Relevant Facts3 2 Plaintiff is a prisoner in the custody of the Arizona Department of Corrections, 3 Rehabilitation and Reentry (ADCRR), and at all times material to this lawsuit, he was 4 assigned to the ASPC-Tucson, Rincon Unit. (Doc. 117, DSOF ¶ 1; Doc. 122, PRSOF ¶ 1.) 5 According to Plaintiff, Plaintiff and his non-prisoner friends created the IAG to 6 “pressure . . . ADCRR to provide more medical staff and ensure med[ications] were given 7 as prescribed.” (Doc. 115-9, PSOF ¶ 14; Doc. 125, DRSOF ¶ 14.) The concept of the IAG 8 was to pair an inmate with a volunteer outside of the prison who in turn would advocate 9 for their inmate. (Doc. 115-9, PSOF ¶ 14; Doc. 125, DRSOF ¶ 14.) The IAG volunteer 10 would send emails to prison officials and ask officials to investigate the inmate’s allegation 11 and take corrective action. (Doc. 115-9, PSOF ¶ 14; Doc. 125, DRSOF ¶ 14.) 12 In December 2021, an e-mail was sent to ADCRR leadership from a private Gmail 13 account; the e-mail was signed with Plaintiff’s name and ADCRR prisoner number. (Doc. 14 117, DSOF ¶ 4; Doc. 122, PRSOF ¶¶ 4, 8.) The parties dispute whether Plaintiff caused 15 the e-mail to be sent or whether it was sent by Plaintiff’s friend, Kelly Meacham, a 16 volunteer with the IAG. (Doc. 117, DSOF ¶ 4; Doc. 122, PRSOF ¶¶ 4–8; see also Doc. 17 117-1 at 3, Defs.’ Ex. A.) Plaintiff states, “Kelly Meacham sent an email via a Gmail 18 account to ADCRR Defendant Director David Shinn on the plaintiff’s behalf . . . to ensure 19 Plaintiff receive[d] his med[ications] on time.” (Doc. 115-9, PSOF ¶ 15.) Prison officials 20 suspected that the e-mail may have been sent directly from Plaintiff, in violation of 21 ADCRR policy. (Doc. 117, DSOF ¶¶ 4–6.) 22 ADCRR prisoners are given tablets that allow them to send or receive e-mails 24 23 hours a day for a fee of $0.25 per e-mail. (Doc. 115-9, PSOF ¶ 19; Doc. 125, DRSOF ¶ 24
25 3 The facts are taken from the Defendants’ Statement of Facts in support of their motion for summary judgment, cited as Doc. 117, DSOF; Plaintiff’s responsive Statement 26 of Facts, cited as Doc. 122, PRSOF; Plaintiff’s Statement of Facts in support of his motion for summary judgment (which was filed as one of many attachments to his motion), cited 27 as PSOF, Doc. 115-9; and Defendant’s responsive “Objection to Plaintiff’s Statement of Facts,” cited as Doc. 125, DRSOF. These facts are undisputed unless otherwise specified. 28 Where Defendants object to a relevant factual assertion by Plaintiff, the Court accepts the Plaintiff’s allegation as true for purposes of resolving the pending motions. 1 19.) ADCRR Department Order (“DO”) 720 prohibits prisoners from having private e- 2 mail accounts. (Doc. 117, DSOF ¶ 5; Doc. 122, PRSOF ¶ 5.) Additionally, DO 720 § 4.1 3 states: “All communications via the [prisoner] tablets are not confidential and are subject 4 to monitoring and recording.” (Doc. 117, DSOF ¶ 25; Doc. 122, PRSOF ¶ 25.) Section 5 5.2 of DO 720 provides that prisoners “are not permitted to message staff directly.” (Doc. 6 117, DSOF ¶ 25; Doc. 122, PRSOF ¶ 25.) DO 720 further provides, “Email 7 correspondence is unlimited and may be sent/received only through secure JPAY services 8 . . . All email remains subject to review.” (Doc. 117, DSOF ¶ 26; Doc. 122, PRSOF ¶ 26.) 9 Physical mail to and from prisoners is governed by DO 914, which provides, in 10 relevant part: 11 914 § 2.0 INCOMING MAIL 12 2.5 Designated staff at each unit/complex is authorized to open, inspect and read incoming mail to prevent criminal activity and 13 prevent inmates from receiving contraband or any other 14 material that may be detrimental to the safe and orderly operation of the institution. 15 . . . . 16 914 § 6.0 OUTGOING MAIL 17 6.3 Staff shall read up to 10% of outgoing mail. 18 . . . . 19 6.5 Outgoing inmate mail is subject to being opened and read by staff when there is a reasonable belief that the inmate is 20 using the mail to further a crime or circumvent Department 21 regulations or written instructions. 22 (Doc. 117, DSOF ¶ 30 (emphasis in original).)4 23 An investigation into the source of the e-mail and Plaintiff’s ability to reach out to 24 ADCRR senior leadership ensued, and it was determined that Plaintiff was “composing 25 emails on his behalf, and they [were then] being sent out from another email from 26 friends/family.” (Doc. 117, DSOF ¶¶ 7–8; see also Doc. 117-1 at 3, Defs.’ Ex. A.) Plaintiff 27
28 4 ADCRR Department Orders are publicly available at https://corrections.az.gov /department-orders-policy [permalink: https://perma.cc/P94T-2YB3]. 1 admits that he helped to compose emails and that he “did assist Ms. Meacham in producing 2 the Gmail by giving her the information she needed to advise the ADCRR director that 3 [Plaintiff] wasn’t getting his prescribed medications for his pain and serious heart 4 condition.” (Doc. 122, PRSOF ¶¶ 7−8.) In fact, in a January 10, 2022 e-mail to Ms. 5 Meacham, Plaintiff wrote: 6 I was placed under investigation because some of the emails I was sending out on behalf of Inmate Advocacy Group [were] 7 sent to the ADC Director using m[y] gmail account when those 8 emails should’ve been sent via the Inmate Advocacy Group email accounts. . . . The SSU (investigators) were super cool 9 about it and the[y] are trying to clear things up so I can go back 10 to using my email app. 11 (Doc. 115-9, PSOF ¶ 37; see also Doc. 115-7 at 9, Pl.’s Attach. 13.) 12 On that same date, Plaintiff states he was called to see Defendants Savoie and Rojas 13 to discuss his mail and the investigation, and Savoie and Rojas “acknowledged they were 14 withholding the plaintiff’s mail because . . . the Director’s Office was angry with the 15 plaintiff for having an email sent to [the Director] complaining [Plaintiff] was not getting 16 his medications.” (Doc. 115-9, PSOF ¶ 36.) Plaintiff states that Defendant Savoie told 17 him “he would try to let some of [Plaintiff’s] mail through for the day and he [Savoie] and 18 Rojas would talk to Defendant Deputy Warden Martinez and try to end their investigation 19 into [Plaintiff’s] mail because they . . . were wasting their time with [Plaintiff].” (Id.; Doc. 20 115-1, Pl. Decl. ¶ 36.) Plaintiff’s e-mail app continued to be disabled, and he still was not 21 receiving his incoming postal mail. (Doc. 115-9, PSOF ¶ 37.) 22 As a result of the investigation into the e-mail, it was recommended that Plaintiff’s 23 e-mails be placed “on a ‘watchlist’ in which each of his notes require a review” in order to 24 “help identify [Plaintiff’s] ability to dictate emails to the outside on his behalf.” (Doc. 117, 25 DSOF, ¶¶ 10–14; Doc. 117-1 at 3, Defs.’ Ex. A; Doc. 122, PRSOF ¶ 9–10, 12–13.) The 26 Rincon Unit Warden forwarded this recommendation to Defendant Deputy Warden Jorge 27 Martinez, and the Warden asked Defendant Martinez to “get with JPay and put [Plaintiff] 28 on the email watch list they speak about.” (Doc. 117, DSOF ¶ 12; Doc. 122, PRSOF ¶ 12.) 1 Defendant Martinez forwarded the Warden’s email to Erin Leon at JPay and asked if she 2 could “place [Plaintiff] on the ‘watch list.’” (Doc. 117, DSOF ¶ 13; Doc. 122, PRSOF ¶ 3 13.) That same day, Ms. Leon placed Plaintiff on the watch list and replied to Defendant 4 Martinez as follows: “Also, please advise your SSU that they will be getting [Plaintiff’s] 5 emails for review. [Plaintiff] will start to complain that he is not receiving them. And he 6 won’t until SSU reviews and releases the email.” (Doc. 117, DSOF ¶ 14; Doc. 122, PRSOF 7 ¶ 14.) Defendant Martinez forwarded Ms. Leon’s email to Defendants Savoie and Rojas. 8 (Doc. 117, DSOF ¶ 17; Doc. 122, PRSOF ¶ 17.) Plaintiff asserts that, thereafter, he only 9 received “about 60% of his incoming mail.” (Doc. 122, PRSOF ¶ 14.)5 10 Plaintiff alleges that on or about February 5, 2022, he was called to meet with 11 Defendants Savoie and Rojas, and, during the meeting, he complained that he was not 12 receiving his incoming mail and that his outgoing mail was “disappearing.” (Doc. 115-9, 13 PSOF ¶ 46.) Defendants Savoie and Rojas told Plaintiff, “there was nothing they could do 14 because they [were] under orders from ‘on top.’ They said they would talk to [Defendant] 15 Martinez . . . but that was all they can do.” (Id.) 16 In a February 17, 2022 letter to his attorney, Plaintiff stated that he was receiving 17 “SOME mail, but most doesn’t get to [him]” and that his e-mails took between “2−7 days” 18 to reach him because “SSU pushes them through once every few days if they have time.” 19 (Id. ¶ 47 (emphasis in original).) 20 In a February 23, 2022 letter to Plaintiff’s lawyer, ASPC-Tucson Warden 21 Josefowicz relayed that the Grievance Coordinator had met with Plaintiff and explained 22 that, per DO 720, incoming and outgoing email that has been held for security reasons must 23 be reviewed within three days by mailroom staff prior to releasing the mail to an inmate. 24 (Doc. 115-9, PSOF ¶ 48; Doc. 125, DRSOF ¶ 48.) Further, the letter advised that policy 25 permits review of all incoming and outgoing mail for security reasons, which sometimes 26 causes a delay, and that ADCRR does not prevent or prohibit inmates from communicating 27
28 5 Plaintiff asserts that Defendants Martinez, Rojas, and Savoie were responsible for his missing mail, but he does not provide any evidence to support this statement. 1 via electronic message or postal service. (Doc. 115-9, PSOF ¶ 48; Doc. 125, DRSOF ¶ 2 48.) 3 According to ADCRR records, monitoring of Plaintiff’s e-mail correspondence 4 stopped by May 2022. (Doc. 117, DSOF ¶ 21; Doc. 122, PRSOF ¶ 21; Doc. 115-9, PSOF 5 ¶ 56; Doc. 125, DRSOF ¶ 56.) However, Plaintiff denies that the monitoring of his postal 6 mail ended on this date, and asserts that he was still not receiving all of his incoming mail, 7 recipients were not receiving his outgoing mail, and that this continued through late-August 8 2022. (Doc. 122, PCSOF ¶ 21; Doc. 115-9, PSOF ¶¶ 57, 75.) He also asserts that staff 9 was reviewing 100 percent of his outbound mail. (Doc. 115-9, PSOF ¶ 75.) Plaintiff 10 pursued multiple administrative grievances regarding this issue between April 2022 and 11 July 2022. (Id. ¶¶ 60–73.) 12 Plaintiff filed this lawsuit in April of 2022. (Doc. 1.) 13 C. Plaintiff’s Evidence is Insufficient to establish essential elements of his 14 First Amendment Retaliation Claim Against the Defendants. 15 1. Adverse Action 16 The record does not support a finding that Defendant Shinn took adverse action 17 against Plaintiff. Plaintiff asserts that Defendant Shinn ordered the investigation into the 18 December 2021 e-mail, but he has not presented any evidence to support this statement or 19 to show that Defendant Shinn ordered the monitoring and restrictions that were eventually 20 placed on Plaintiff’s correspondence. See Hines, 108 F.3d at 267 (retaliation claims require 21 a plaintiff to show that the prison official acted in retaliation for the exercise of a 22 constitutionally protected right). Defendant Shinn was not a recipient or sender in any of 23 the e-mails surrounding the investigation, Plaintiff’s placement on the watchlist, or the 24 monitoring and restriction of Plaintiff’s communications. Also, Defendant Shinn did not 25 personally respond to any of Plaintiff’s grievances regarding this issue. Absent a showing 26 that Defendant Shinn personally participated in taking adverse action against Plaintiff, 27 Defendant Shinn is entitled to summary judgment. 28 // 1 2. Retaliatory Motive 2 As for the remaining Defendants in Count One, even if there is a triable issue as to 3 whether Defendants Martinez, Savoie, and Rojas took adverse action against Plaintiff by 4 placing him on the watchlist and restricting Plaintiff’s correspondence, the record does not 5 show that they did so because of Plaintiff’s purported protected conduct. In order to prevail 6 on a retaliation claim, “a plaintiff must show that his protected conduct was the substantial 7 or motivating factor behind the defendant's conduct.” Brodheim, 584 F.3d at 1271 (9th 8 Cir. 2009) (citation and internal quotation omitted). To raise a triable issue as to motive, 9 Plaintiff must offer “either direct evidence of retaliatory motive or at least one of three 10 general types of circumstantial evidence [of that motive].” Allen v. Iranon, 283 F.3d 1070, 11 1077 (9th Cir. 2002). Such circumstantial evidence includes (1) proximity in time between 12 protected speech and alleged retaliation; (2) the defendant’s expression of opposition to the 13 speech; and (3) other evidence that the reasons proffered by defendant for the adverse 14 action were false and pretextual. See McCollum v. Cal. Dep’t of Corr. and Rehabilitation, 15 647 F.3d 870, 882 (9th Cir. 2011). 16 Here, there is evidence of proximity in time between the December 2021 e-mail 17 being sent to prison officials and Plaintiff’s placement on the watch list and the restrictions 18 on his communications starting in early January 2022. But suspect timing, without more, 19 is not enough to show retaliatory intent. See Pratt, 65 F.3d at 808 (9th Cir. 1995) (finding 20 that timing alone is insufficient to establish retaliatory motive). 21 Plaintiff does not provide any evidence that any of the Defendants expressed 22 opposition to the contents of the e-mail. Rather, all of the evidence shows that Defendants’ 23 concerns were with the fact that Plaintiff might have the ability to send emails to senior 24 prison officials, which was prohibited. There is no evidence that any Defendant focused 25 on or had concerns about the content of the communication. 26 Moreover, there is no evidence that the reasons for investigating and monitoring 27 Plaintiff’s communications were false or pretextual. It is undisputed that an e-mail with 28 Plaintiff’s name and inmate number was sent from a private e-mail account to a senior 1 prison official. It is a violation of prison policy for a prisoner to maintain a private e-mail 2 account. Plaintiff has admitted that he contacted Ms. Meacham for the purpose of writing 3 the suspect e-mail. Thus, officials had a reasonable belief that Plaintiff was violating prison 4 policy or may have been attempting to circumvent ADCRR regulations when they placed 5 him on the watch list and restricted his communications. 6 Here, nothing except suspect timing supports an inference of retaliatory intent. In 7 light of the remaining undisputed evidence, Plaintiff fails to support his claim that the 8 investigation, monitoring, and restriction of his communications occurred “because of” his 9 exercise of his First Amendment rights. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 10 1310, 1314 (9th Cir. 1989) (finding that the plaintiff has the burden of demonstrating that 11 his exercise of his First Amendment rights was a substantial or motivating factor behind 12 the defendants’ conduct) (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 13 U.S. 274, 287 (1977)). For this reason, Defendants are entitled to summary judgment on 14 Count One. 15 3. Legitimate Penological Interest 16 A plaintiff “bears the burden of pleading and proving the absence of legitimate 17 correctional goals for the conduct of which he complains.” Pratt, 65 F.3d at 806. The 18 Court evaluates a retaliation claim in light of the deference accorded prison officials. Id. 19 at 807. It is well-settled that “the legitimate governmental interest in the order and security 20 of penal institutions justifies the imposition of certain restraints on inmate 21 correspondence.” Procunier v. Martinez, 416 U.S. 396, 412–13 (1974), overruled on other 22 grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989); see O’Keefe v. Van 23 Boening, 82 F.3d 322, 326 (9th Cir. 1996) (deterring criminal activity and maintaining 24 prisoner security are legitimate penological interests that justify regulations on prisoner 25 mail). In this instance, the investigation, monitoring, and restriction of Plaintiff’s 26 correspondence were undertaken to further ADCRR’s legitimate security interest in 27 monitoring prisoners’ communications with the outside world by making sure prisoners do 28 not circumvent the prohibition on private e-mail accounts. Plaintiff’s failure to prove the 1 absence of a legitimate correctional goal—a necessary element of his claim, provides an 2 additional basis for granting summary judgment to Defendants.6 See Hines, 108 F.3d at 3 267 (plaintiff bringing a retaliation claim must prove that the alleged adverse action 4 “advanced no legitimate penological interest”). 5 V. Count Three – Due Process 6 In Count Three, Plaintiff asserts an official capacity claim against Defendant 7 Thornell. Plaintiff claims that his due process rights were violated when he was reassigned 8 to probationary trainee status at his prison job, his wages were reduced, and his second 9 stimulus check was returned to the IRS as a result of Defendant Thornell’s policies that 10 prohibited Plaintiff from accessing the Internal Revenue Service (IRS) website and calling 11 the IRS office in order to correct a discrepancy between Plaintiff’s former and current legal 12 names.7 13 A. Relevant Facts 14 Plaintiff’s legal name was Jeffrey Merrick Logan until November 1, 1999, when he 15 changed his name to JD Merrick. (Doc. 117, DSOF ¶¶ 2, 3; Doc. 94 ¶ 53.8) For 22 or 23 16 years, Plaintiff has worked at various prison jobs and received wages under the name JD 17 Merrick. (Doc. 94 ¶ 56.) Plaintiff’s social security number returns to the name Jeffrey 18 Merrick Logan. (Id. ¶¶ 54–55.) 19 In June 2021, Plaintiff received a stimulus check under the American Rescue Plan, 20 and it was deposited into his inmate trust account. (Id. ¶ 60.) When Plaintiff attempted to 21 apply for his second stimulus check, he received a letter from the IRS stating that his second 22 stimulus check was being withheld because his legal name—JD Merrick—did not match
23 6 In light of the Court’s conclusion that Plaintiffs has failed to produce evidence 24 sufficient to support his First Amendment Claim, the Court will not address Defendants’ qualified immunity argument. 25 7 The Court will limit its discussion of Count Three to Plaintiff’s claim against 26 Defendant Shinn because Defendant McCoy has not moved for summary judgment at this time. 27 8 Because Plaintiff is a pro se litigant, the Court will consider as evidence in 28 opposition to summary judgment all of Plaintiff’s contentions set forth in the verified Fourth Amended Complaint (Doc. 94). Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 1 his social security number, which was still associated with the name Jeffrey Merrick Logan. 2 (Id. ¶¶ 61–62.) The IRS informed Plaintiff that he could call their Integrity Verification 3 Operations office or visit their website to verify his identity, or he could submit a W9 Tax 4 Form to verify his identity. (Id. ¶ 63.) 5 Plaintiff was informed by “prison administration” that he was not allowed to call 6 the IRS or visit their website. (Id. ¶ 64.)9 According to Plaintiff, he submitted several W- 7 9 forms to the IRS, but the IRS disregarded them. (Id. ¶ 65.) 8 On October 5, 2022, the IRS mailed Plaintiff’s second stimulus check to Plaintiff at 9 the prison, but the check was returned because it was made payable to Jeffrey Merrick 10 Logan and not to JD Merrick. (Id. ¶ 76.) 11 Federal law requires an employer to issue information returns, such as W-2 forms 12 and 1099 forms. See 26 U.S.C. § 6051(a); 26 C.F.R. § 31.6051-1. The failure to provide 13 such forms creates liability to the United States on the part of an employer. See 26 U.S.C. 14 §§ 6051, 6722. According to the IRS website: 15 Every employer engaged in a trade or business who pays remuneration, including noncash payments of $600 or more for 16 the year (all amounts if any income, social security, or 17 Medicare tax was withheld) for services performed by an employee must file a Form W-2 for each employee (even if the 18 employee is related to the employer) from whom: 19 Income, Social Security, or Medicare tax was withheld. 20 Income tax would have been withheld if the employee had 21 claimed no more than one withholding allowance or had not claimed exemption from withholding on Form W-4, 22 Employee’s Withholding Allowance Certificate.10 23
24 9 DO 915 is the ADCRR policy governing the use of phones by prisoners. (Id. ¶ 25 33.) Under DO 915, prisoners are prohibited from dialing 1-800 or 1-900 numbers. (Id.; see DO 915 §§ 1.4.3, 1.4.3.6 (“The following types of phone calls are prohibited . . . Calls 26 to 800 and 900 phone numbers.”).)ADCRR Department Order 915, https://corrections.az.gov/sites/default/files/documents/policies/900/DO%20915.pdf 27 [permalink: https://perma.cc/F4LR-AKWF]. 28 10 See About Form W-2, Wage and Tax Statement, https://www.irs.gov/forms- pubs/about-form-w-2 [permalink: https://perma.cc/4B8L-BJJZ]. 1 The ADCRR Director has set forth applicable pay rates for prisoner workers in DO 2 903. (Doc. 117, DSOF ¶ 36; Doc. 122, PRSOF ¶ 36.) DO 903 provides, in relevant part: 3 3.0 WORK PROGRAM ASSIGNMENT PROCESS 4 3.1.1.5 Verify the inmate’s employment eligibility to earn above the $599 annual income threshold based on the Internal 5 Revenue Service (IRS) guidelines. 6 3.1.1.5.1 The CO III / CO IV shall screen all inmates for 7 employment eligibility. The screening shall include the presence of valid SSN or TIN [tax identification number]. 8 3.1.1.5.2 Inmates that do not have a valid SSN or TIN may be 9 assigned to a job but will not be compensated more than .20 10 cents per hour. 11 3.1.1.5.3 An inmate shall be assigned into a Probationary Trainee position and shall remain in this job classification 12 unless they are able to furnish the required IRS credentials. It 13 is the responsibility of the inmate to take the necessary steps to obtain and furnish the required IRS credentials to the WIPP CO 14 III. 15 3.1.1.5.3.1 Removal from the probationary trainee status shall 16 only occur when the required credentials are provided to the CO III by the inmate and are validated by the ADCRR TIN 17 Administrator. 18 (Doc. 117, DSOF ¶ 37; Doc. 122, PRSOF ¶ 37.) 19 Rudy Arevalo is employed as the Business Administrator with the ADCRR at the 20 Arizona Prison Complex, Tucson. (Doc. 117-1 at 27, Defs.’ Ex. H ¶ 2.) According to Mr. 21 Arevalo, under federal law, inmates whose anticipated pay will be greater than $599 in 22 annual wages must have a name and social security number that match to each other as 23 determined by federal databases. (Doc. 117, DSOF ¶ 38.)11 An inmate’s eligibility to earn 24
25 11 Plaintiff objects to the Paragraphs 39–43 of the DSOF, asserting Mr. Arevalo is not qualified to testify on behalf of the IRS and federal government. (Doc. 122, PRSOF ¶ 26 38.) In his declaration, Mr. Arevalo describes ADCRR’s policies and procedures for payment of inmate wages and he explains how the policy and procedures are based on 27 ADCRR’s understanding of federal law. Mr. Arevalo’s declaration establishes he is qualified to testify as to ADCRR’s procedures and policies. The declaration is signed, made 28 under penalty of perjury, and shows that Mr. Arevalo’s testimony is based on his personal knowledge, experience, and his review of relevant ADCRR documents maintained in the 1 more than the $599-per-year federal guideline amount is determined by the TIN 2 Administrator running the prisoner’s name against his social security number in federal 3 databases. (Id. ¶ 39.) ADCRR interprets DO 903 and federal law to mean that ADCRR 4 cannot employ prisoners like Plaintiff—whose social security card and W-2 do not 5 match—at a wage that exceeds the $599 threshold. (Id. ¶ 40.) Mr. Arevalo relates that in 6 2019 and 2022, the IRS audited ADCRR and cracked down on prisoners making more than 7 $599 where the prisoner’s name did not match their social security number. (Id. ¶ 41.) 8 On or about March 26, 2022, Plaintiff was reassigned to a probationary trainee 9 position, and his rate of pay was reduced from thirty-five cents per hour to twenty cents 10 per hour to comply with federal guidelines and DO 903 because his legal name did not the 11 match the name on his social security card in federal databases. (Id. ¶¶ 42, 43; see Doc. 94 12 ¶¶ 67–68.) Mr. Arevalo states that ADCRR cannot pay Plaintiff a higher rate of pay until 13 the federal government confirms that his social security number and current legal name 14 match. (Doc. 117, DSOF ¶ 44.) 15 In response to Plaintiff’s interrogatories, former TIN Administrator Jennifer Villa 16 stated that she “processed one W9 for [Plaintiff]” and that it “had both [of Plaintiff’s] last 17 names on it.” (Doc. 122-1 at 3.) While processing Plaintiff’s W-9 form, Ms. Villa entered 18 combinations of Plaintiff’s social security number with his former last name (Logan) and 19 his current legal last name (Merrick), and the search “came back with an IRS database 20 match” between Plaintiff’s social security and his previous last name (Logan). (Id.) After 21 processing Plaintiff’s W-9, Ms. Villa sent an e-mail to CO III Deliana Noel on April 25, 22 2022 informing her that “[Plaintiff] cleared as Logan and there was no need to keep him 23 probationary.” (Id.) Ms. Villa’s “understanding was [that] if the social security 24 number/name combination matched the inmate was not to be [on] probationary work status. 25 The W9 [Plaintiff] provided ha[d] both names on it and both were his, and he cleared.” 26 (Id.) Ms. Villa stated that she has “nothing to do with [enforcing] DO 903.” (Id.) 27
28 ordinary course of business. (Doc. 117-1 at 27, Defs.’ Ex. H ¶¶ 1, 2.) Thus, the Court overrules Plaintiff’s objections. 1 In a letter dated July 26, 2023, Assistant Attorney General Nancy Davis informed 2 Plaintiff that: 3 Your pay was reduced in accordance with DO 903 because your SSN does not match your given name. What steps have 4 you taken to contact the Social Security Administration to have 5 your SSN card updated so that your name change matches your SSN? The documents you have provided in grievances reflect 6 your efforts to contact the IRS, but I do not see any evidence 7 that you have actually reached out to the SSA about this issue. For your convenience, I have enclosed publically [sic] 8 available information regarding the SSA and their instructions 9 on how to have such information updated. 10 Until the SSA acknowledges this change and updates its records, you are not eligible to work at the higher rate of pay 11 because your name and SSN do not match on federal reporting 12 databases. There is nothing ADCRR can do to change this as this is a federal agency issue, not an ADCRR issue, and it 13 impacts tax reporting requirements. Without a valid match 14 between your SSN and name, ADCRR cannot issue you a 1099 and 1099s must be issued for all compensation paid in excess 15 of $600 per year. 16 (Doc. 117-1 at 63, Defs.’ Ex. L.) 17 B. Claim for Damages 18 Plaintiff cannot maintain a claim for damages against Defendant Shinn in 19 his official capacity under § 1983 because “a suit against a state official in his or her 20 official capacity is not a suit against the official but . . . against the official’s office. As 21 such, it is no different from a suit against the State itself.” Will v. Michigan Dep’t of State 22 Police, 491 U.S. 58, 71 (1989) (internal citation omitted) (holding that the Eleventh 23 Amendment protects states from being sued for damages in federal court). By its express 24 terms, § 1983 applies to “person[s]” acting under color of state law, which does not include 25 states. Hafer v. Melo, 502 U.S. 21, 26 (1991); see also Gilbreath v. Cutter Biological, Inc., 26 931 F.2d 1320, 1327 (9th Cir. 1991) (“[A] state is not a ‘person’ for purposes of section 27 1983. Likewise[,] ‘arms of the State’ such as the Arizona Department of Corrections are 28 1 not ‘persons’ under section 1983.”) (citation omitted). Therefore, Plaintiff’s official 2 capacity claim is limited to prospective relief only. 3 C. Official Capacity Claim 4 To prevail on a claim against Defendant Thornell in his official capacity, Plaintiff 5 must show that an official policy or custom caused the constitutional violation. Monell v. 6 Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 (1978). To make this showing, 7 Plaintiff must demonstrate that (1) he was deprived of a constitutional right; (2) Defendant 8 Thornell had a policy or custom; (3) the policy or custom amounted to deliberate 9 indifference to Plaintiff’s constitutional right; and (4) the policy or custom was the moving 10 force behind the constitutional violation. Mabe v. San Bernardino Cnty., Dep’t of Pub. 11 Soc. Servs., 237 F.3d 1101, 1110–11 (9th Cir. 2001). Further, if the policy or custom in 12 question is an unwritten one, Plaintiff must show that it is so “persistent and widespread” 13 that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting 14 Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68 (1970)). 15 1. Constitutional Violation 16 “The threshold question in due process analysis is whether a constitutionally 17 protected interest is implicated.” Baumann v. Arizona Dep’t of Corr., 754 F.2d 841, 843 18 (9th Cir. 1985). Here Plaintiff fails to demonstrate a constitutionally protected interest in 19 his wages or in the stimulus check. 20 a. Probationary Status/Reduced Wages 21 “[T]he Due Process Clause of the Fourteenth Amendment ‘does not create a 22 property or liberty interest in prison employment[.]’” Walker v. Gomez, 370 F.3d 969, 973 23 (9th Cir. 2004) (quoting Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986) (per 24 curiam), and citing Baumann, 754 F.2d at 846); Vignolo v. Miller, 120 F.3d 1075, 1077 25 (9th Cir. 1997). A prisoner has no constitutional right to a particular job assignment. See 26 West v. Beauclair, 338 F. App’x 716, 717 (9th Cir. 2009) (“[prisoner] did not have a liberty 27 or property interest in the prison job that he lost, or prison jobs that he was precluded from 28 obtaining, as a result of his [disciplinary] conviction”); Cunningham v. Bird, No. 1:22-cv- 1 00306-JLT-SAB (PC), 2022 WL 1308261, at *1 (E.D. Cal. May 2, 2022), report and 2 recommendation adopted, 2022 WL 2119045 (E.D. Cal. June 13, 2022); see also 3 Cornellier v. Walker, No. CV-04-0724-PHX-PGR (JJM), 2004 WL 7334915, at *3 (D. 4 Ariz. Aug. 11, 2004) (“[T]he loss of a prison job does not raise a constitutional claim”). 5 Further, under Arizona law, prisoner wage amounts are set by the ADC Director: 6 Each prisoner who is engaged in productive work in any state prison or institution under the jurisdiction of the department or 7 a private prison under contract with the department as a part of 8 the prison industries program shall receive for the prisoner's work the compensation that the director determines. 9 10 Ariz. Rev. Stat. § 31-254(A) (emphasis added). Therefore, Plaintiff’s reassignment to 11 probationary trainee, and his resulting reduction in wages, did not trigger due process 12 protection. As stated, ADCRR prisoner wages are determined by the Director, and the 13 Director has determined—as set forth in DO 903—that prisoner wages must comply with 14 IRS regulations, and those that do not comply must be brought into compliance by 15 designating the prisoner as a probationary trainee until the prisoner has provided proper 16 credentials. On these facts, Plaintiff did not suffer a due process violation by having his 17 job assignment and wages adjusted. See Rainer v. Chapman, 513 F. App’x 674, 675 (9th 18 Cir. 2013) (holding that the district court properly dismissed the prisoner-plaintiff’s “due 19 process claims based on his removal from his work assignment because these allegations 20 did not give rise to a constitutionally protected liberty or property interest); Hunter v. 21 Heath, 95 F. Supp. 2d 1140, 1147 (D. Or. 2000) (“It is uniformly well established 22 throughout the federal circuit courts that a prisoner’s expectation of keeping a specific 23 prison job, or any job, does not implicate a property or liberty interest under the Fourteenth 24 Amendment.”), rev’d on other grounds, 26 F. App’x 754, 755 (9th Cir. 2002). 25 b. Returned Stimulus Check 26 Plaintiff fails to establish that the return of the second stimulus check to the IRS 27 triggered due process protections. In a similar case, a court found that a prisoner failed to 28 show a protected property interest in a tax refund that was erroneously deposited in his 1 inmate trust account. See Brazier v. CDCR, No. 2:12–cv–0883 CKD P., 2014 WL 2 4187361, at *3 (E.D. Cal. Aug. 21, 2014). In Brazier, the prisoner-plaintiff received two 3 tax refund checks from the IRS totaling $1,267.00, and the IRS subsequently informed the 4 prison that the checks had been issued in error. Id. at *1. The funds were thereafter 5 withdrawn from the plaintiff’s trust account and returned to the IRS without the plaintiff’s 6 consent or a hearing. Id. In finding that the record did not establish a due process violation, 7 the court noted that the plaintiff did “not produce[] any evidence that the refunds were 8 anything but administrative mistakes, soon corrected.” Id. at *3. 9 Similarly, in the instant case, the IRS had previously informed Plaintiff that he 10 would not receive his second stimulus check because his legal name did not match his 11 social security number. (Doc. 94 at 25.) Although the check was subsequently sent to 12 Plaintiff despite his names still not matching, there is no evidence in the record that this 13 was anything more than a clerical error. See Brazier, 2014 WL 4187361, at *3 (“While 14 the funds were issued by the government and briefly credited to plaintiff’s trust account, 15 this alone does not suffice to show a protected property interest.”). “The ‘mere fact a 16 person has received a government benefit in the past, even for a considerable length of 17 time, does not, without more, rise to the level of a legitimate claim of entitlement.’” See 18 Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005) (quoting Doran v. 19 Houle, 721 F.2d 1182, 1186 (9th Cir. 1983)) (cleaned up).12 Accordingly, Plaintiff fails to 20 present evidence sufficient to show a due process violation with respect to the returned 21 stimulus check. 22 // 23 // 24
25 12 Notably, it is not clear that a private cause of action exists for non-receipt of stimulus funds. See Edmisten v. Internal Revenue Serv., No.: 3:21-cv-00232-MMD-WGC, 26 2021 WL 5177460, at *5 (D. Nev. Aug. 19, 2021) (“It does not appear that a private cause of action can be maintained under the legislation authorizing the disbursement of [stimulus 27 checks]. The laws do not indicate that there is a private cause of action for non-receipt of funds.”) 28 1 2. Existence of Policy Amounting to Deliberate Indifference 2 Even if Plaintiff suffered a constitutional violation, the facts do not support a finding 3 that Defendant Thornell’s policy of not allowing prisoners to call 1-800 numbers or to 4 access the IRS website amounted to deliberate indifference. A policy or custom is 5 deliberately indifferent when its inadequacy is obvious and likely to result in the violation 6 of a constitutional right. City of Canton v. Harris, 489 U.S. 378, 390 (1989). But even 7 “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid 8 if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 9 78, 89 (1987). Defendants argue that ADCRR has a legitimate security interest in 10 monitoring and limiting prisoners’ telephonic and online communications with the outside 11 world and that allowing prisoners to call 1-800 numbers and access certain public websites 12 places the public at risk of fraudulent behavior. (Doc. 116 at 11, 13–14.) 13 Prisoners have a right to telephone access, but “this right is subject to reasonable 14 limitations arising from the legitimate penological and administrative interests of the prison 15 system.” Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) (citing Strandberg v. 16 City of Helena, 791 F.2d 744, 747 (9th Cir. 1986)); Keenan v. Hall, 83 F.3d 1083, 1092 17 (9th Cir. 1996). Such reasonable limitations include prohibitions on calling 1-800 18 numbers. See Aswegan v. Henry, 981 F.2d 313, 314 (8th Cir. 1992) (upholding a state 19 penitentiary’s policy of prohibiting prisoners from making 1-800 telephone calls); Thomas 20 v. SCI-Graterford, No. CIV.A. 11-6799, 2014 WL 550555, at *6 (E.D. Pa. Feb. 12, 2014) 21 (finding that the prison’s refusal to permit prisoner to call his attorney on a 1–800 phone 22 number did not give rise to a constitutional violation). 23 Moreover, prisoners do not enjoy unfettered access to the internet. Nickerson v. 24 Gootkin, No. CV 22-95-H-BMM-KLD, 2023 WL 7053494, at *1 (D. Mont. Oct. 26, 2023) 25 (noting that prisoner “d[id] not possess a constitutional right to the internet”); Mitchell v. 26 Dragoo, No. 10-5436RBL, 2011 WL 3739054, at *5 (W.D. Wash. July 21, 2011), report 27 and recommendation adopted, No. 3:10-CV-05436-RBL, 2011 WL 3739046 (W.D. Wash. 28 Aug. 24, 2011) (“There is no constitutional right to internet access [for inmates].”); 1 Evenstad v. Schnell, No. 20-CV-1464 (WMW/DTS), 2022 WL 617598, at *13–14 (D. 2 Minn. Jan. 13, 2022), report and recommendation adopted, No. 20-CV-1464 3 (WMW/DTS), 2022 WL 616962 (D. Minn. Mar. 2, 2022) (prisoner who challenged policy 4 that restricted his internet access to “work, educational, and vocational purposes” did not 5 state a constitutional claim); Alverson v. Munchin, No. 2:21-CV-16-ECM-KFP, 2021 WL 6 11421353, at *5 (M.D. Ala. Aug. 25, 2021), report and recommendation adopted, No. 7 2:21-CV-16-ECM, 2021 WL 4188396 (M.D. Ala. Sept. 14, 2021) (“[T]he Court can find 8 no support for the contention that a lack of internet access to file a tax refund in prison 9 constitutes a denial of Plaintiff’s constitutional right to equal protection.”); Edwards v. New 10 York State Dep’t of Corr. & Cmty. Supervision, No. 9:19-CV-0254 (MAD/ATB), 2019 WL 11 1978803, at *5 (N.D.N.Y. May 3, 2019) (“Although prison inmates retain a right under the 12 First Amendment to send and receive information while incarcerated, . . . they do not have 13 a constitutional right to a particular form of communication, including access to the internet 14 or email.”) (citations omitted); Duenes v. Wainwright, No. A-17-CV-0726-LY, 2017 WL 15 6210904, at *3 (W.D. Tex. Dec. 7, 2017) (“State inmates do not have a federal 16 constitutional right to possess computers or to access the Internet.”); Johnston v. Dooley, 17 No. 4:15-CV-04125-LLP, 2015 WL 7734284, at *6 (D.S.D. Nov. 10, 2015), report and 18 recommendation adopted, No. CIV 15-4125, 2015 WL 7734015 (D.S.D. Nov. 30, 2015) 19 (“To suggest that denying inmates access to the Internet is cruel and unusual punishment 20 is simply frivolous.”); Darby v. Schmalenberger, No. 1:12-CV-033, 2012 WL 5471881, at 21 *6 (D.N.D. May 7, 2012), report and recommendation adopted in part, No. 1:12-CV-033, 22 2012 WL 5471876 (D.N.D. Nov. 9, 2012) (finding that prisoner “has neither a right to 23 internet access nor a right to file electronically” and that prison “has a legitimate 24 penological interest in restricting inmates’ internet access”). 25 On this record, the evidence does not show that ADCRR’s policy regarding 1-800 26 numbers and accessing the IRS website are obviously inadequate or likely to result in the 27 violation of a constitutional right. Moreover, ADCRR has a legitimate interest in 28 prohibiting certain prisoner communications that place the public at heightened risk of 1 being subjected to fraudulent or abusive behavior, particularly where Plaintiff has 2 alternative means of engaging in those communications, such as through written 3 correspondence. See Turner, 482 U.S. at 90 (“Where ‘other avenues’ remain available for 4 the exercise of the asserted right . . . courts should be particularly conscious of the ‘measure 5 of judicial deference owed to corrections officials . . . in gauging the validity of the 6 regulation.’”) (citations omitted). Accordingly, Plaintiff has not identified a genuine issue 7 of material fact as to this element of the Monell analysis. 8 Because the evidence does not support a constitutional violation or the existence of 9 a policy or custom amounting to deliberate indifference, Plaintiff’s official capacity claim 10 fails, and summary judgment will be granted to Defendant Thornell. 11 VI. Motion for Injunctive Relief 12 A plaintiff seeking a preliminary injunction must show that (1) he is likely to 13 succeed on the merits, (2) he is likely to suffer irreparable harm without an injunction, (3) 14 the balance of equities tips in his favor, and (4) an injunction is in the public interest. 15 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “But if a plaintiff can only 16 show that there are ‘serious questions going to the merits’—a lesser showing than 17 likelihood of success on the merits—then a preliminary injunction may still issue if the 18 ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors 19 are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) 20 (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). 21 In his Motion for a Temporary Restraining Order and Temporary Injunction, 22 Plaintiff seeks the following relief: 23 1. Remove [Plaintiff] from the Probationary Training position and restore his regular pay[;] 2. Compensate [Plaintiff] for any 24 and all lost wages he would have received if he had not been 25 placed in a Probationary Training Position[;] and 3. Pay [Plaintiff] $1,417.91, the amount of the IRS check that the 26 ADCRR returned to the IRS. 27 (Doc. 58 at 22.) 28 1 As discussed above, Plaintiff fails to provide evidence sufficient to support a finding 2| that Plaintiff's placement on probationary training status, the resulting reduction of his wages, or the return of the second stimulus check amounted to constitutional violations. 4| Because the record does not show a likelihood of success as to Plaintiffs due process claim 5 | in Count Three, and the facts do not establish a serious question going to the merits of that claim, the Motion will be denied. 7 IT IS ORDERED: 8 (1) ‘Plaintiff's Motion for Temporary Restraining Order and Temporary 9 | Injunction (Doc. 58) is denied. 10 (2) Plaintiff's Motion for Reconsideration (Doc. 100) is denied. 11 (3) Plaintiff's Motion for Summary Judgment (Doc. 115) is denied. 12 (4) Defendants’ Motion for Summary Judgment (Doc. 116) is granted. 13 (5) Plaintiff's Count One retaliation claim, Count Two official capacity claim, 14| and Defendants Martinez, Rojas, Savoie, Shinn, and Thornell are dismissed with 15 | prejudice. 16 (6) The only claim remaining in this action is Plaintiff's Count Three due process claim against Defendant McCoy. 18 Dated this 20th day of March, 2024. 19 20 □
22 United States District Judge 23 24 25 26 27 28