Richey v. Duncan

• Court: District Court, E.D. Washington
• Decided: July 16, 2024
• Docket: 2:23-cv-00050
• Status: Unknown

Opinion

1 Jul 16, 2024 2 SEAN F. MCAVOY, CLERK 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 THOMAS WILLIAM SINCLAIR 10 RICHEY, No. 2:23-CV-00050-SAB 11 Plaintiff, 12 v. ORDER GRANTING 13 GRIEVANCE COORDINATOR B. DEFENDANTS’ MOTION FOR 14 DUNCAN, et al., SUMMARY JUDGMENT 15 Defendants. 16 17 Before the Court are Plaintiff’s Motion for Summary Judgment, ECF No. 18 24, and Defendants’ Motion for Summary Judgment, ECF No. 55. The motions 19 were heard without oral argument. Plaintiff is representing himself in this matter. 20 Defendants are represented by Aaron Williams and Alicia Mac. 21 Motion Standard 22 Summary judgment is appropriate “if the movant shows that there is no 23 genuine dispute as to any material fact and the movant is entitled to judgment as a 24 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless 25 there is sufficient evidence favoring the non-moving party for a jury to return a 26 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 27 (1986). The moving party has the initial burden of showing the absence of a 28 genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 1 If the moving party meets its initial burden, the non-moving party must go beyond 2 the pleadings and “set forth specific facts showing that there is a genuine issue for 3 trial.” Anderson, 477 U.S. at 248. 4 In addition to showing there are no questions of material fact, the moving 5 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of 6 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled 7 to judgment as a matter of law when the non-moving party fails to make a 8 sufficient showing on an essential element of a claim on which the non-moving 9 party has the burden of proof. Celotex, 477 U.S. at 323. The non-moving party 10 cannot rely on conclusory allegations alone to create an issue of material fact. 11 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). 12 When considering a motion for summary judgment, a court may neither 13 weigh the evidence nor assess credibility; instead, “the evidence of the non-movant 14 is to be believed, and all justifiable inferences are to be drawn in his favor.” 15 Anderson, 477 U.S. at 255. 16 Underlying Facts 17 In 1987, Plaintiff, a state prisoner currently housed at Airway Heights 18 Corrections Center, was sentenced to 65 years imprisonment. While in custody on 19 the west side of the state, Plaintiff filed over 20 actions in the Western District of 20 Washington. Lately, the focus of Plaintiff’s actions has been the First 21 Amendment.1 Plaintiff files grievances using disrespectful language to describe 22

23 1In 2012, Plaintiff brought a § 1983 action in the Western District of Washington 24 against prison officials at Monroe Corrections Center because his grievance about 25 a prison guard was administratively withdrawn after he refused to remove rude 26 comments about the prison guard’s weight Richey v. Dahne, 3:12-CV-05060-BHS, 27 (W.D. Wash 2012). After extensive motion practice, Judge Settle denied the 28 defendants’ request for immunity on the First Amendment right to petition the 1 prison staff. Usually, he is asked to rewrite the grievance, and when he refuses, the 2 prison either rejects or processes the grievance. It has been suggested that Plaintiff 3 has engineered these lawsuits in search of “a nice payday.” Richey v. Stemler, 2020 4 WL 8370941, *3-4 (W.D. Wash. 2020) (Report and Recommendation of 5 Magistrate Judge Mary Theiler). 6 At some point, Plaintiff was transferred to Eastern Washington, being 7 housed at the Washington State Penitentiary in Walla Walla, Washington and 8 Airway Heights Corrections Center (AHCC) in Airway Heights, Washington. He 9 has continued to file lawsuits—many of which have been dismissed for failure to 10 comply with the filing fee and more than one alleging that his First Amendment 11 rights were violated when he used derogatory language when filing grievances.2 12 Plaintiff filed this instant action on February 22, 2023. This current action 13 follows the First Amendment line of claims where Plaintiff submitted grievances 14

15 government because a reasonable officer would know that either rejecting or 16 withdrawing a grievance because it included offensive language was a 17 constitutional violation and denied their request for immunity with respect to the 18 retaliation claims because questions of material fact existed. ECF No. 74. 19 The State appealed that decision and in 2018, the Ninth Circuit issued an 20 unpublished opinion where it held that in the special context of prison grievances, 21 prison rules prohibiting disrespectful language do not serve a legitimate 22 penological interest, as would be required for the rules to be constitutional. Richey 23 v. Dahne, 733 Fed. Appx. 881 (9th Cir. 2018) 24 2 See e.g., Richey v. Sinclair, et al., 2:21-CV-00107-RMP; Richey v. Duncan, 2:23- 25 CV-00018-RMP; 4:16-CV-05047-RMP. As the court noted in Richey v. Pease, 26 2:15-CV-5097-RMP, a review of court records from the U.S. District Courts in the 27 Eastern and Western Districts of Washington showed that by 2015, Plaintiff had 28 filed more than thirty civil cases. 1 or resolution requests in which he uses questionable language to describe prison 2 staff. In this case, Plaintiff submitted three grievances that included questionable 3 language. 4 Log ID No. 22767657 5 On November 8, 2022, Plaintiff submitted a written grievance LOG ID No. 6 22767657, in which he complained about retaliation from prison staff. He 7 described a guard as “the fat tub of lard wearing sergeant stripes and his mini me, 8 the bearded lady, C/O Marcus.” Plaintiff was directed to rewrite his written 9 grievance, remove the abusive language, and return it by November 30, 2022. He 10 submitted a rewrite, and in it stated:

11 I’m not rewriting a goddamn thing. File my grievance as I 12 wrote it. Don’t try to control and censor my language. My grievance complaint is detailed and properly written. Do your 13 fucking job and file and investigate my grievance as written. 14 Defendant B. Duncan, Grievance Coordinator/Resolution Specialist, 15 requested that Plaintiff submit a rewrite of the rewrite to remove the profane, 16 derogatory and/or abusive language. Richey refused to rewrite the resolution 17 request. When Plaintiff refused to rewrite his resolution request a second time, it 18 was accepted and processed as written. 19 On December 14, 2022, Defendant Duncan submitted an infraction against 20 Plaintiff for violating WAC 137-25-020(896). This infraction, IGN 103, was for 21 abusive language contained in Plaintiff’s Resolution Request with LOG ID No. 22 22767657. 23 On January 18, 2023, CC3 Lightbody reviewed grievance No. 22767657. 24 Lightbody concluded that based on the information obtained, the staff processed 25 his grievance correctly. Lightbody noted that custody staff and CI staff attempted 26 to resolve the issue at the lowest level by replacing Plaintiff’s meal and 27 apologizing, but Plaintiff refused to accept any resolution. Lightbody concluded 28 1 the grievance was unfounded. 2 Log ID No. 22769710 3 On December 6, 2022, Plaintiff filed a grievance against Greg Waldo, 4 Records Specialist, asserting that because Plaintiff “mistakenly addressed” Waldo 5 as “Gay Waldo,” Waldo became emotional disturbed and refused to provide a copy 6 of the requested verification document. He also wrote that “Greg Waldo must 7 privately have gay tendencies, since he acts so distraught and insecure when a 8 mistake is made about his name.” This grievance was assigned Log ID No. 9 22769710. 10 Defendant Funnemark directed Plaintiff to rewrite this grievance because of 11 the abusive language. Plaintiff refused. On December 23, 2022, he wrote:

12 I refuse to rewrite by grievance to censor my language so 13 process grievance as written. That’s your only option here. STOP RETURNING MY GRIEVANCES. I did not include 14 abusive language and so what are you talking about? 15 It was processed, but Defendant Funnemark did not accept the Resolution Request. 16 On January 6, 2023, Defendant Duncan wrote an infraction for Richey for 17 violating WAC 137-25-020(896). This infraction, IGN 104, was for abusive 18 language contained in Plaintiff’s Resolution Request with LOG ID No. 22769710. 19 Log ID No. 23770936 20 On December 30, 2022, Plaintiff submitted grievance No. 23770936. 21 Plaintiff wrote: 22 I want to grieve the Moron, CS2 Duncan for retaliating against me by refusing to process by properly filed grievances and for 23 retaliating against me by writing an infraction for exercising my 24 protected 1st Amendment rights. You need to hire people to fill positions who are competent and understand the law and the 25 rights of grievants and the parameters of the grievance rules. 26 Duncan is unsuitable for the job of grievance coordinator because he is obviously cerebrally challenged. 27 He asked that Duncan be replaced with “a person of higher intellect.” 28 1 On December 30, 2022, he submitted additional documents. In it he wrote:

2 Duncan . . . retaliated by writing a serious infraction report, 3 violation #896, because of language I used in my grievance. . . Duncan needs to fully understand the rights of prisoners and 4 exercise his duties as a grievance coordinator instead of acting 5 like an emotionally distraught child basing reactionary decisions on emotions is immature handicap for anyone in a 6 supervisory position. 7 He asked that Duncan be relieved of her duties, and someone be hired that 8 was mature enough to remove their emotions from their decision-making process. 9 Defendant Funnemark responded: 10 Individuals cannot submit a Resolution Request on concerns 11 that have a Department approved formal review and/or appeals 12 process. Individuals are directed to follow the correct review/appeals process to resolve those concerns or allow the 13 review process to take place. This includes, but is not limited 14 to: Infractions/sanctions/disciplinary hearing actions or 15 employees/contract staff involved in the proceeding, as they can be adjudicate through the disciplinary process in accordance 16 with WAC. 17 On January 3, 2023, J. Funnemark wrote an infraction for Plaintiff for 18 violating WAC 137-25-020(896) in filing Resolution Request ID No. 23770936, 19 that contained abusive and offensive comments. This infraction, IGN 105, was for 20 violating WAC 895 Discriminatory Harassment. 21 Disciplinary Hearing Related to IGN 103, 104 and 105. 22 On January 9, 2023, a disciplinary hearing was conducted by Defendant 23 Donna Byrnes. Plaintiff asked for a continuance, which was granted. On February 24 16, 2023, a disciplinary hearing was held for the Infraction Report 104 and 105. It 25 appears that Plaintiff participated in this hearing. Defendant Byrnes found Plaintiff 26 not guilty of IGN 104 and 105. 27 With respect to IGN 104, Defendant Byrnes made the following findings:

28 1 Written staff testimony that offender made harassing, abusive, and offensive comments directed at staff pertaining to sexual 2 orientation and continued to do so after his behavior being 3 addressed by staff. Documentation submitted through the 4 Grievance process cannot be used against the offender and is protected and the right of the offender to not be infracted 5 because it included vulgar and offensive language. Physical 6 evidence presented. Offender documentation attached. ECF No. 51, Ex. 2. 7 With respect to IGN 105, Defendant Byrnes made the following findings: 8 Written staff testimony that offender made offense comments 9 directed at staff pertaining to emotional handicap/disabilities. 10 Physical evidence presented; Documentation submitted through the Grievance process cannot be used against the offender and 11 is protected and the rights of the offender to not be infracted 12 because of his grievance includes vulgar and offensive comments. 13 ECF No. 51, Ex. 3. 14 With respect to IGN 103, a hearing was held on March 10, 2023. It does not 15 appear that Plaintiff participated. Defendant Byrnes reduced the serious violation 16 of WAC 137-25-020 (896) and instead found Plaintiff guilty of a violation of 17 WAC 137-28-220(202).3 ECF No. 51, Ex. 1. Defendant Byrnes appeared to rely on 18 written staff testimony that Plaintiff made offensive comments directed at staff 19 pertaining to sexual orientation. She sanctioned Plaintiff to 7 days CC and 40 hours 20 of extra duty. The reasons for the sanction were because this was Plaintiff’s second 21 202 infraction in the past 12 months and the seriousness of the incident. 22 Since Plaintiff received his serious infraction, he states he has not filed any 23 additional grievances because he is fearful of being infracted. 24

25 3 (1) Any of the following types of behavior may constitute a general violation . . . 26 Disruptive behavior/lying 27 202- Harassing, using abusive language, or engaging in other offensive 28 behavior directed to or in the presence of another person(s) or group(s). 1 Legal Standards 2 A. 42 U.S.C. § 1983 3 In order to establish a claim under § 1983, Plaintiff must show that (1) he 4 suffered a violation of rights protected by the Constitution or created by federal 5 statute; and (2) the violation was proximately caused by a person acting under 6 color of state or federal law. West v. Atkins, 487 U.S. 42, 48 (1988). 7 B. Petition for Redress of Grievances 8 A prison regulation that restricts an inmate’s constitutional rights is 9 constitutional if it is “reasonably related to legitimate penological interest.” Turner 10 v. Safley, 482 U.S. 78, 89 (1987). The Turner Court set forth four factors a court 11 must consider whether prisoners allege that a regulation or practice impinges on 12 their First Amendment rights: (1) whether there is a rational connection between 13 the prison regulation and the legitimate governmental interest put forward to justify 14 it; (2) whether there are alternative means of exercising the right that remain open 15 to prison inmates; (3) what impact accommodation of the asserted constitutional 16 right will have on guards and other inmates, and on the allocation of prison 17 resources generally; and (4) whether ready alternatives at a de minimis costs exist 18 which may be evidence that the regulation is not reasonable, but is an exaggerated 19 response to prison concerns. Id. at 89-93 (quotation omitted). 20 Under Ninth Circuit precedent, “disrespectful language in a prisoner’s 21 grievance is itself protected activity under the First Amendment.” Brodheim v. Cry, 22 584 F.3d 1262, 1271 (9th Cir. 2009). Thus, absent a legitimate penological reason, 23 content-based limitations on a prisoner’s expression are unconstitutional. Id. As 24 explained by the Circuit, while the prison has a legitimate penological interest in 25 encouraging respect by inmates toward staff and other inmates, and rehabilitation 26 of inmates through insistence on their use of socially acceptable ways of solving 27 their problems, the link between this purpose and the disrespect rules as applied to 28 formal written grievances is weak. Id. This is so because grievances can be 1 insulated from other prisoners and from those prison officials who are the target of 2 the grievance, so that disrespectful language in a grievance does not raise any 3 substantial security concern. Id. “A prisoner’s statement in a grievance need not 4 have any more impact on prison security through the maintenance of respect than 5 the prisoner’s unexpressed thoughts.” Id. at 1273. 6 C. Retaliation for Exercising First Amendment Rights in Prison Setting 7 Prisoners have a First Amendment right to be free from retaliation for filing 8 grievances against prison officials. Watison v. Carter, 668 F.3d 1108, 1114 (9th 9 Cir. 2012). Retaliation against prisoners for their exercise of this right is itself a 10 constitutional violation and prohibited as a matter of “clearly established law.” 11 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citation omitted). 12 A viable retaliation claim in the prison context has five basic elements:

13 (1) An assertion that a state actor took some adverse action against an 14 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 15 rights, and (5) the action did not reasonably advance a legitimate 16 correctional goal. 17 Id. 18 D. Qualified Immunity 19 “Qualified immunity balances two important interests—the need to hold 20 public officials accountable when they exercise power irresponsibly and the need 21 to shield officials from harassment, distraction, and liability when they perform 22 their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). In 23 determining whether a state official is entitled to qualified immunity in the context 24 of summary judgment, we consider (1) whether the evidence viewed in the light 25 most favorable to the plaintiff is sufficient to show a violation of a constitutional 26 right and (2) whether that right was “clearly established at the time of the 27 violation.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 599 (9th Cir. 28 2019) (citing Pearson, 555 U.S. at 232). 1 Analysis 2 In analyzing Plaintiff’s right to petition claim and the right again retaliation 3 claim, the Court must determine whether the actions of the prison officials are 4 reasonably related to legitimate penological interests. In Brodheim, the Ninth 5 Circuit only looked at the penologically interest of the peaceable operation of the 6 prison and determined that certain language contained in a written complaint did 7 not pose a substantial threat to security and discipline, which was the penological 8 interests proffered by prison officials. 584 F.3d at 1272-73. 9 In this case, Defendants present what they believe are legitimate penological 10 interests for the restriction of abusive language that go beyond what was presented 11 in Brodheim. James Key, Deputy Assistant Secretary of Prisons, Central Division 12 of with Department of Corrections stated the following:

13 6. Rehabilitation is one of the most important reasons for these regulations. 14 Individuals who become incarcerated often have difficulty dealing with interactions with others. Many of them have never had the opportunity in life 15 to learn respectful discourse or the personal discipline to follow rules. Part of 16 the goal of incarceration is to teach incarcerated people respectful and effective communication skills so that they may someday be able to 17 participate in society. For instance, an individual would likely be terminated 18 from any job where they said something in an email that is disrespectfully, harassing, and abusive toward others in the workplace. Permitting the use of 19 this language in a prison grievance, therefore, undermines the Department’s 20 attempts to provide a structured environment where good coping skills and basic respectful communication skills are fostered and reinforced. In other 21 words it hinders effective rehabilitation. This is not something that can be 22 cured by simply having someone who is not the target of the grievance read it. Regardless of who reads the grievances, the behavior is negative and it is 23 imperative that the Department be permitted to reinforce new habits of 24 respectful behavior and to punish negative behavior as part of the rehabilitation process. 25

26 7. In addition, many incarcerated individuals ended up in prison because they lacked respect for rules in general and for authority figures. Respect 27 for rules and being respectful of authority is not just a skill needed in prison, 28 it is part of the life skills a person needs to function in everyday life outside 1 of a prison as well. Allowing an incarcerated person to ignore prison rules when they file grievances and to use harassing and abusing language 2 discourages respect for authority. This is also something that cannot be 3 solved by having someone who is not the target of the harassment read the 4 grievances.

5 8. Finally, these rules help to protect safety, security, and order within 6 the prison by preventing confrontations. Corrections staff need to be able to maintain a high degree of self-control which can be undermined when 7 incarcerated individuals bait them with insults. Confrontations can be caused 8 by the use of abusive and harassing language. Staff morale also suffers as the result of being harassed in the workplace. It is imperative that order and calm 9 be maintained and that confrontational situations be avoided in the prison 10 setting. Prison should be a place of respectful interactions and it should be a safe environment for all. Confrontation can lead to violence. The reason of 11 preventing confrontations too cannot be addressed simply by having someone 12 who is not the target of the insults respond to the grievance. Prisoners often talk up their grievances to other incarcerated individuals so the contents of an 13 offensive grievance can easily get around the prison. Incarcerated individuals 14 also often file their grievances in court so it is not possible to always shield the targeted employees from these remarks. 15 ECF No. 57. 16 Mr. Key’s testimony is based on thirty-six years of real-world experience. 17 Notably, Mr. Key states that teaching incarcerated people effective communication 18 is an important part of their rehabilitation. Plaintiff apparently agrees with this as 19 well. See ECF No. 48-1. Mr. Key’s testimony provides uncontroverted evidence 20 that Defendant’s actions in dealing with Plaintiff’s grievances were reasonably 21 related to legitimate penological reasons. As such, Plaintiff has not shown that the 22 limitations placed on his speech set forth above rise to a constitutional violation 23 because Defendants have legitimate penological reasons for limiting that speech. 24 Moreover, given the lack of prior precedent addressing the legitimate 25 penological need to foster effective communication skills as part of a prisoner’s 26 rehabilitation, as well as the Circuit split identified by Defendants, the Court finds 27 that Defendants are entitled to qualified immunity. 28 1 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Summary Judgment, ECF No. 24, is DENIED. 3 2. Defendants’ Motion for Summary Judgment, ECF No. 55, is GRANTED. 5 3. The Clerk of Court is directed to enter judgment in favor of Defendants and against Plaintiff. IT IS SO ORDERED. The Clerk of Court is hereby directed to file this Order, provide copies to Plaintiff and counsel, and close the file. 9 DATED this 16th day of July 2024. 10 11 12 13 Scleyld EceYoan Is Stanley A. Bastian Chief United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY