FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Oct 26, 2022 SEAN F. MCAVOY, CLERK TYLER TOWNSEND, No. 2:20-cv-00193-MKD Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR v. SUMMARY JUDGMENT CAROL SMITH; B. LONGINO; SGT. ECF No. 38 WESTFALL; SGT. ALDENDORF; J. MARTIN; JAMES KEY; SGT. BOLINGER; and JOHN DOE 1, in their individual and official capacities, Defendants. Before the Court is Defendants’ Motion for Summary Judgment, filed on November 23, 2021. ECF No. 38. This is a 42 U.S.C. § 1983 civil rights action. ECF No. 15 at 1. Plaintiff alleges that Defendants violated his rights under the First Amendment to the United States Constitution while Plaintiff was in the custody of the Washington Department of Corrections (“WDOC”) at the Airway Heights Correctional Center (“AHCC”) in April 2020. See ECF No. 15. Plaintiff claims fall into two causes of action, censorship and retaliation. Plaintiff alleges that Defendants Bonnie Longino, James Westfall, James Key, and John Doe 1, now identified as Tracy Schneider,1 targeted and blocked his
outgoing mail to the news media and thereby censored him in violation of the First Amendment. ECF No. 15 at 14 ¶ 72. Plaintiff alleges that Defendant Carol Smith told him that he could not send mail to the media and thereby censored him as
well. ECF No. 15 at 14 ¶ 73. Plaintiff alleges that all eight Defendants took adverse action against him either through a process of infraction or by propagating false statements that led to a mail restriction and infraction, in violation of his right to be free from retaliation for protected First Amendment activities. ECF No. 15 at
14 ¶¶ 74, 75. Plaintiff seeks declaratory and injunctive relief, and compensatory and punitive damages. ECF No. 15 at 15-16 ¶¶ A-E. Defendants move for
1 Defendants admit in their answer that “John Doe 1” appears to be Tracy Schneider. ECF No. 24 at 3 ¶ 11, 10 ¶ 53. However, Tracy Schneider, in her Declaration in Support of Defendants’ Motion for Summary Judgment, states that “I am not a Defendant in this lawsuit.” ECF No. 44 at 1 ¶ 1. Plaintiff omits both John Doe and Tracy Schneider from his response to the motion for summary judgment. The Court proceeds under Defendants’ admission that Tracy Schneider
is, in fact, John Doe 1. summary judgment on all claims. See ECF No. 38. For the reasons stated herein, the Court grants summary judgment as to all claims.
The undisputed facts are as follows. In April 2020, Plaintiff was in WDOC custody at AHCC. ECF No. 24 at 2 ¶ 3; ECF No. 38 at 1 ¶ 1; ECF No. 46 at 2. In
the midst of the COVID-19 pandemic, AHCC officers posted memoranda with information about its COVID-19 policies in its facility for prisoners to view. ECF No. 39 at 2 ¶ 4, ECF No. 42 at 2-3 ¶ 3. At some point on or before April 3, 2020, Plaintiff attempted to mail COVID-19 memoranda to a Fox News outlet in
Spokane, Washington. ECF No. 39 at 2 ¶ 2; ECF No. 42-1; ECF No. 46 at 2. On April 3, 2020, Defendant Bonnie Longino, a Mail Processing Driver in the mailroom at AHCC, rejected Plaintiff’s outgoing mail that contained the
COVID-19 memoranda. ECF No. 39 at 2 ¶ 3; ECF 46 at 2. Defendant Longino determined that Plaintiff’s mail was in violation of Washington Administrative Code 137-28-220 #053, which prohibits incarcerated persons from possession of items not authorized for retention or receipt, or not issued through approved
channels. ECF No. 39 at 3 ¶ 6; ECF No. 42 at 2-3 ¶ 3; ECF No. 46 at 2-3; see WAC 137-28-220. Defendant Longino believed that Plaintiff obtained the copies of the COVID-19 memoranda by removing them from a wall in a common area.
ECF No. 39 at 1 ¶ 4; ECF No. 42 at 2-3 ¶ 5; ECF No. 46 at 2. Plaintiff appealed the rejection. ECF No. 39 at 3 ¶ 7; ECF No. 46 at 4. Pursuant to procedure, the appeal went before Defendant James Westfall, a
Mailroom Sergeant for AHCC, who upheld the rejection. ECF No. 24 at 2 ¶ 5; ECF No. 39 at 3 ¶ 7; see ECF No. 42-1, Ex. 1. Alongside the mail rejection, Defendant Longino issued Plaintiff a general
infraction. ECF No. 39 at 3 ¶ 8; ECF No. 40-1; ECF No. 42 at 2 ¶ 4; ECF No. 42- 1, Ex. 2; ECF No. 46 at 4. On April 26, 2020, WDOC held a hearing on the infraction. ECF No. 39 at 4 ¶ 9, ECF No. 46 at 4. Defendant Adam Aldendorf, a Sergeant at AHCC, was the hearing officer. ECF No. 24 at 3 ¶¶ 6, 23; ECF No. 39
at 3 ¶ 9; ECF No. 40-1 at 2; ECF No. 46 at 4. Defendant Aldendorf found Plaintiff guilty based upon staff testimony and issued a reprimand and warning against him. ECF No. 24 at 5 ¶ 23; ECF No. 39 at 3 ¶ 9; ECF No. 40-1 at 2; ECF No. 46 at 4.
Defendant Randy Bolinger,2 a Sergeant at AHCC, reviewed the infraction report. ECF No. 24 at 5 ¶ 23. On April 27, 2022, the day following the hearing, Plaintiff filed a grievance over the infraction. ECF No. 39 at 4 ¶ 10; ECF No. 42 at 2 ¶ 4; ECF No. 46 at 4.
2 Defendants refer to Defendant “Bolinger,” rather than “Bollinger,” as appears in Plaintiff’s pro se Amended Complaint. See, e.g., ECF No. 15 at 1, ECF No. 24 at 3 ¶ 10; ECF No. 38 at 4-6. The Court defers to the spelling offered by Defendants. On April 30, 2020, Defendant Jason Martin, Grievance Coordinator for WDOC, dismissed Plaintiff’s grievance as “not grievable” as there were alternative
methods for appeal. ECF No. 24 at 3 ¶ 7; ECF No. 39 at 5 ¶ 15; ECF No. 43-1 at 4; ECF No. 46 at 5. At some point after the hearing and on or before April 29, 2020, Plaintiff
again attempted to send mail containing AHCC’s COVID-19 memoranda. ECF No. 39 at 4 ¶ 12; ECF No. 42 at 3 ¶ 7; ECF No. 46 at 4. On April 29, 2020, Defendant Longino issued another mail rejection and infraction against Plaintiff, on the same grounds as the prior attempted mailing. ECF No. 39 at 4 ¶ 12; ECF
No. 42 at 3 ¶ 7; ECF No. 42-1 at 10-13; ECF No. 46 at 4. On April 29, 2020, Defendant Longino exchanged a number of emails with Julie Saiz, Correctional Unit Supervisor for WDOC. ECF No. 39 at 4 ¶ 14; ECF No. 42 at 3 ¶ 8; ECF No.
42-1 at 15-20; ECF No. 46 at 5. Defendant Longino eventually determined that these copies of the COVID-19 memoranda were given to Plaintiff as part of his hearing packet for the hearing on his previous infraction, and not illicitly obtained. ECF No. 39 at 4-5 ¶ 14; ECF No. 42 at 3-4 ¶ 9.
The second mail rejection and infraction were dismissed, and Plaintiff’s second package containing the COVID-19 memoranda was mailed on May 4, 2020. ECF No. 39 at 5 ¶¶ 14, 16; ECF No. 42 at 4-5; ECF No. 46 at 5. Defendant
Longino communicated the result to Plaintiff. ECF No. 39 at 6-7 ¶ 17; ECF No. 42 at 4-5 ¶¶ 10-11; ECF No. 42-1 at 22; ECF No. 46 at 5.
On May 5, 2020, Plaintiff appealed Defendant Martin’s “not grievable” finding against his grievance related to the first infraction. ECF No. 24 at 7; ECF No. 39 at 6 ¶ 18; ECF No. 43-1 at 4; ECF No. 46 at 5. On May 12, 2020,
Defendant Carol Smith, Headquarters Grievance Program Manager for WDOC, denied the grievance appeal, upholding the decision. ECF No. 39 at 6 ¶ 18; ECF No. 46 at 5. Defendant Smith also communicated to Plaintiff that “per policy you are not allowed to send mail to the media. The superintendent’s decision on
outgoing mail of this content is final.” ECF No. 39 at 6 ¶ 18; ECF No. 46 at 5. On August 27, 2020, Defendant Tracy Schneider, Headquarters Correctional Manager for WDOC, upheld the rejection of Plaintiff’s mail. ECF No. 24 at 3 ¶
11; ECF No. 39 at 7 ¶ 22; ECF No. 42-1 at 2-3; ECF No. 46 at 5.3 On May 28, 2020, Plaintiff filed his pro se Complaint. See ECF No. 1. On August 5, 2020, the Hon. Rosanna Malouf Peterson dismissed his Complaint in part. See ECF No. 9. On August 21, 2020, Plaintiff moved to amend his
complaint and on September 23, 2020, Judge Peterson granted his motion. See
3 Plaintiff alleges that Defendant James Key, Superintendent at AHCC, also “upheld” the infractions and mail rejections at issue. ECF No. 15 at 10 ¶ 52. ECF Nos. 10, 14. On September 23, 2020, Plaintiff filed his pro se Amended Complaint. See ECF No. 15.
On September 28, 2021, Plaintiff was released from WDOC custody. ECF No. 39 at 7 ¶ 23; ECF No. 46 at 5. On November 23, 2021, Defendants moved for summary judgment as to all
claims. See ECF No. 38. On December 22, 2021, this matter was reassigned to the undersigned Judge. See ECF No. 48. On February 8, 2022, the Court heard argument on the motion. See ECF No. 55. Jeffry K. Finer appeared on behalf of Plaintiff and Katherine J. Faber appeared on behalf of Defendants. On February
25, 2022, the Court entered a stay pending resolution of the instant motion for summary judgment. See ECF No. 57.
A district court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnes v. Chase Home Fin., LLC, 934 F.3d 901, 906
(9th Cir. 2019). A party may move for summary judgment on part of a claim or defense. Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact
could resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The moving party “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’” that demonstrate the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323 (quoting former Fed. R. Civ. P. 56(c)). A moving party who does not bear the burden of persuasion at trial will succeed on summary judgment either by producing evidence that negates an essential element of the
non-moving party’s claim or defense, or by showing that the non-moving party does not have enough evidence to prove an essential element. Nissan Fire & Marine Ins. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).
If the moving party has satisfied its initial burden, to survive summary judgment, the non-moving party must demonstrate by affidavits, depositions, answers to interrogatories, or admission on file, “specific facts” showing that there is a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324. “The mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
The court “must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inference in the nonmoving party’s
favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . .” Anderson,
477 U.S. at 255. “Summary judgment is improper where divergent ultimate inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, 771 F.3d at 1125.
Plaintiff’s claims arise under 42 U.S.C. § 1983. ECF No. 15 at 1. Section 1983 provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
“[Section] 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks omitted). To state a claim under Section 1983, a plaintiff must show that he was “deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
Section 1983 “creates a species of tort liability” and claims brought thereunder “sound in tort. . . .” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999). The United States Supreme Court has “interpreted
the statute in light of the background of tort liability.” Id. (internal quotation marks omitted). Defendants seek summary judgment on five grounds: (1) that Plaintiff’s claims against Defendants Martin, Smith, Bolinger, and Key should be dismissed
because Plaintiff cannot demonstrate these defendants personally participated in the events underlying his claims; (2) that Plaintiff’s censorship claims should be dismissed because Plaintiff cannot demonstrate that his rights were violated; (3)
that Plaintiff’s retaliation claims should be dismissed because Plaintiff cannot demonstrate that any defendants retaliated against him for exercising his First Amendment rights; (4) that Plaintiff cannot recover damages from any defendant because all are entitled to qualified immunity; and (5) that Plaintiff’s claims
seeking injunctive and declaratory relief are moot because Plaintiff is no longer in WDOC custody.
A. Personal Participation in the Alleged Constitutional Depravations Defendants seek summary judgment as to Plaintiff’s claims against several
defendants based on their lack of personal participation in the events underlying Plaintiff’s claims. Vicarious liability is inapplicable to Section 1983 suits. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Section 1983 liability “must be based
on the personal involvement of the defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980)); see also Iqbal, 556 U.S. at 676 (“a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has
violated the Constitution.”). To be liable, a person must do an affirmative act, participate in another's affirmative act, or fail to perform an act that the person is legally required to do.
Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). “Anyone who causes any citizen to be subjected to a constitutional depravation is also liable.” Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999) (quoting Johnson, 588 F.2d at 743 (9th Cir. 1978)). “The requisite causal connection can be established not
only by some kind of direct personal participation in the depravation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Id.
The Seventh Circuit in George v. Smith, 507 F.3d 605 (7th Cir. 2007), summarized the standard as follows:
Only persons who cause or participate in the violations are responsible. Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation. A guard who stands and watches while another guard beats a prisoner violates the Constitution; a guard who rejects an administrative complaint about a completed act of misconduct does not. Id. at 609-10. Defendants argue that the involvement of certain defendants in the events underlying Plaintiff’s claims is purely supervisory in nature and insufficient to give rise to Section 1983 liability. 1. Defendant Martin Defendants argue that Defendant Martin’s “only involvement in this case was to review [Plaintiff’s] grievance about his infraction and provide a Level 0 response that the grievance topic was ungrievable because there was a separate channel of formal appeal.” ECF No. 38 at 4-5. The extent of Defendant Martin’s role in processing and denying Plaintiff’s grievance is undisputed. See ECF No. 39 at 5 ¶ 15; ECF No. 46 at 5. Plaintiff, without citation to binding authority4 or
4 Plaintiff, in his pro se Amended Complaint, offers a collection of district court decisions generally supporting a theory of supervisory liability under Section 1983. ECF No. 15 at 6 ¶ 31 n. 1. Each was decided prior to Iqbal, none are from within evidence,5 argues that Defendant Martin had the authority and a duty to “consider remedial action” once aware of Plaintiff’s impression that he was the subject of
retaliation. ECF No. 45 at 5; see also ECF No. 15 at 6 ¶ 30 (“It is my understanding that a grievance coordinator, under prevailing law, if he has been
the Ninth Circuit, and the cases do not speak to the specifics of Defendant Martin’s alleged duty. 5 The evidentiary basis for the bulk of Plaintiff’s allegations is his pro se Amended Complaint. A complaint may serve as an affidavit opposing summary judgment if
it is verified and “based on personal knowledge and set forth specific facts admissibly in evidence.” Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). A plaintiff’s verified complaint “satisfies the personal knowledge
requirement where the ‘allegations were not based purely on . . . belief.’” Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013) (quoting Schroeder, 55 F.3d at 460). Plaintiff has verified his Amended Complaint. ECF No. 15 at 16. However, the assertions therein include factual allegations based on Plaintiff’s
personal knowledge, statements of Plaintiff’s beliefs about facts, and legal conclusions. The Court considers only assertions based on Plaintiff’s personal knowledge for the purposes of finding a genuine dispute of material fact to survive
summary judgment. informed of a violation through a grievance, has the authority to correct it, and does not do so, may be held liable.”).
Even if Defendant Martin had such authority, which is not clear from the record, prison grievance procedures do not confer substantive rights upon which Section 1983 liability may be founded. Burton v. Schneider, Case No. 3:15-CV-
05862-BHS-JRC, 2016 WL 8223269, at *3 (W.D. Wash. Nov. 29, 2016) (citing Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)). Plaintiff fails to offer evidence that Defendant Martin personally participated in the alleged First Amendment violation, namely, the rejection of his outgoing mail, or personally
participated in any adverse action constituting retaliation for his exercise of his First Amendment rights. There is no genuine dispute of material fact as to Defendant Martin’s
personal participation in the events at issue. Plaintiff’s claims against Defendant Martin fail as a matter of law. The Court grants summary judgment as to all claims against Defendant Martin. 2. Defendant Smith
Defendants argue that Defendant Smith, like Defendant Martin, did not personally participate in the alleged constitutional depravations, and “only provided a Headquarters response to [Plaintiff’s] appeal of the non-grievable
finding.” ECF No. 38 at 5. Indeed, Defendant Smith merely upheld Defendant Martin’s finding. ECF No. 39 at 6 ¶ 18; ECF No. 46 at 5.
Plaintiff raises, briefly, Defendant Smith’s mistaken communication to Plaintiff that “per policy you are not allowed to send mail to the media. The superintendent’s decision on outgoing mail of this content is final. Appeal
denied.” ECF No. 45 at 5-6. Defendants concede that Defendants Smith was mistaken. ECF No. 38 at 7. Judge Peterson, screening Plaintiff’s initial pro se Complaint under the Prison Litigation Reform Act of 1995, found that “Plaintiff’s Complaint—which
pleads facts alleging that Defendant Smith notified him that prison policy prohibited Plaintiff from sending mail to the media—states a First Amendment claim against Defendant Smith that is cognizable under Procunier.” ECF No. 9 at
17-18 (citing Procunier v. Martinez, 416 U.S. 396 (1974). From Plaintiff’s initial Complaint, Judge Peterson allowed only his claim against Defendant Smith to continue. See ECF No. 9. Judge Peterson later permitted Plaintiff to amend his complaint and, upon an additional screening, permitted him to continue with his
pro se Amended Complaint. See ECF No. 14. Under Procunier v. Martinez, “censorship of prisoner mail is justified if [(1)] the regulation or practice in question further[s] an important or substantial
governmental interest unrelated to the suppression of expression . . . [, and (2)] the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” 416
U.S. at 414, overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989) (limiting the standard applied in Procunier to prison policies involving outgoing prisoner mail).
The Court now has the benefit of the parties’ undisputed material facts, supporting declarations, and legal briefing. See ECF Nos. 38-47, 49. It is true that Defendant Smith communicated to Plaintiff a policy that would undoubtedly violate his First Amendment rights under Procunier. ECF No. 39 at 6 ¶ 18; ECF
No. 46 at 5. However, it is undisputed that Defendant Smith was mistaken in her communication, and there was no codified policy in place at AHCC prohibiting Plaintiff from communicating with the media. ECF No. 39 at 6-7 ¶¶ 19-20; ECF
No. 46 at 19. More importantly, the Court now has the benefit of the context of Defendant Smith’s role in the events underlying Plaintiff’s claims. It is undisputed that Defendant Smith merely reviewed and upheld Defendant Martin’s findings against
Plaintiff’s grievance related to the first infraction. ECF No. 39 at 6 ¶ 18; ECF No. 46 at 5. Plaintiff offers no evidence that Defendant Smith personally rejected Plaintiff’s mail or retaliated against him for his attempt to communicate with the
media. There is no genuine dispute of material fact as to Defendant Smith’s involvement in the events underlying the events at issue. Plaintiff’s claims against
Defendant Smith fail as a matter of law. For the same reasons as articulated above in relation to Defendant Martin, the Court grants summary judgment as to all of Plaintiff’s claims against Defendant Smith.
3. Defendants Bolinger and Key Plaintiff conceded at oral argument that summary judgment should be granted in favor of Defendants Bolinger and Key because neither caused nor was sufficiently involved in the constitutional violations of which Plaintiff complains.
The Court therefore grants summary judgment as to Plaintiff’s claims against Defendants Key and Bolinger. B. Censorship
Defendants argue that Plaintiff’s remaining censorship claims must be dismissed because Plaintiff cannot show that his First Amendment rights were violated. ECF No. 38 at 6. Prisoners have a First Amendment right to send and receive mail. Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). As
stated above, censorship of outgoing prisoner mail is justified only if the regulation (1) “[furthers] an important or substantial government interest unrelated to the suppression of expression” and (2) the limitation of First Amendment freedoms is
“no greater than is necessary or essential to the protection of the particular governmental interest involved.” Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (citing Procunier, 416 U.S. at 412). Substantial government interests
that may justify censorship of outgoing prisoner mail are security, order, and rehabilitation. Procunier, 416 U.S. at 413. As an initial matter, Defendants begin by offering their policy regarding
communications between incarcerated individuals and the news media. ECF No. 38 at 6. It is undisputed that WDOC has codified policies that permit prisoner communication with the media. ECF No. 39 at 6-7 ¶¶ 19-20; ECF No. 46 at 5. However, as Plaintiff explains, “the scope and legitimacy of the Unauthorized Mail
policy itself is not at issue. The issue is whether the Defendants have a true basis to reject [Plaintiff’s] effort to mail the Memorandum to Fox News.” ECF No. 45 at 11. It is the conduct of the defendant officers at issue, not WDOC policy.
1. Plaintiff’s Censorship Claims Arising from the Second Mail Rejection and Infraction Defendants argue that the second mail rejection and infraction, issued against Plaintiff on April 29, 2020, cannot support Plaintiff’s claims because these decisions were ultimately reversed, and the mail sent. Defendants cite to the Ninth Circuit’s decision in Crofton v. Roe, which held that a temporary delay in delivering publications to a prisoner did not violate the prisoner’s First Amendment rights. 170 F.3d 957, 961 (9th Cir. 1999). In Crofton, a prison’s security inspection caused the delay, which was reasonably related to the prison’s interest in inspecting mail for contraband. Id.
The same logic applies to this case. Consistent with the text of Section 1983, general tort principles, and Article III of the United States Constitution, a Section 1983 plaintiff must demonstrate injury. 42 U.S.C. § 1983
(A person who, acting under color of law, deprives another of a Constitutional or federal right “shall be liable to the party injured.”) (emphasis added); see Saved Mag. v. Spokane Police Dep’t, 505 F. Supp. 3d 1095, 1104 (E.D. Wash. 2020), aff’d, 19 F.4th 1193 (9th Cir. 2021) (“To plead a section 1983 violation . . .
Plaintiffs must allege that they suffered a specific injury.”) (citing Rizzo v. Goode, 423 U.S. 362, 371–72 (1976)). While an injury need not always be tangible, “it must actually exist.” Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016).
There is no dispute that Plaintiff’s second attempt to send the COVID-19 memoranda by mail to the news media was effectuated on May 4, 2020, less than a week from the date of his second attempt. The delay does not amount to a cognizable constitutional depravation for the purposes of a Section 1983 claim.
The delay was due to AHCC’s legitimate interest in regulating outgoing mail from incarcerating persons. To the extent that Plaintiff offers the second mail rejection and infraction as support for his First Amendment claims, the Court grants
summary judgment in favor of Defendants. 2. Plaintiff’s Censorship Claims against Defendant Longino Defendants argue that Defendant Longino’s initial rejection of Plaintiff’s
mail to the media was justified under Procunier as “further[ing] one or more of the substantial government interests of security, order, and rehabilitation” and was a limitation “no greater than . . . necessary or essential to the protection of the
particular governmental interest involved.” ECF No. 38 at 8 (quoting Procunier, 416 U.S. at 413). Defendants argue that “protecting prison security . . . is central to all other corrections goals[,]” ECF No. 38 at 8 (citing Thornburgh, 490 U.S. at 415) (quotations omitted), and that WAC 137-28-220 #053 legitimately prohibits a
prisoner from possession of items not authorized for retention or receipt, or not issued through approved channels. Defendants offer the Declaration of Defendant Longino for her assertion that she rejected Plaintiff’s mail because it contained two
COVID-19 memoranda that Plaintiff was not authorized to have. ECF No. 39 at 2 ¶ 4; ECF No. 42 at 1-2 ¶ 3. Defendants’ Undisputed Statement of Fact 4 provides that “[Plaintiff’s] mail contained two memos about COVID-19 which were posted in the units at [AHCC]
for all offenders to view. Longino believed Townsend was not authorized to take the state copy of the memo and send it out[.]” ECF No. 39 at 2 ¶ 4. Plaintiff does not dispute Fact 4. ECF No. 46 at 2. However, elsewhere, he alleges that he
received a copy of the COVID-19 memoranda underneath his cell door, rather than took a copy from a public posting board. ECF No. 15 at 3-4 ¶¶ 15, 17; ECF No. 45 at 1-2; ECF No. 46 at 2.
Plaintiff argues that Defendants “have failed to express a legitimate penological basis for refusing to process [Plaintiff’s] mail based on ungrounded suspicion alone that [his] correspondence had unauthorized copies of admitted
public notices.” ECF No. 45 at 13. Plaintiff does not contest in the pleadings and admitted at oral argument that, if he had taken the COVID-19 memoranda from a public posting board, mail rejection and infraction would have been appropriate measures. This position is consistent with the relevant case law. See, e.g.,
Witherow v. Crawford, 468 F. Supp. 2d 1253, 1261 (D. Nev. 2006) (“Prison officials may . . . visually inspect out-going mail to determine whether it contains contraband material which threatens prison security or material threatening the
safety of the recipient.”). Instead of challenging the constitutionality of Defendant Longino’s reason for rejecting his mail, Plaintiff seeks to relitigate the factual basis of the rejection. Defendant Longino declares that an unnamed officer called to inform her that no
one had made or distributed copies of the publicly posted COVID-19 memoranda to prisoners. ECF No. 42 at 2-3 ¶ 5. Therefore, she believed Plaintiff had no other way to obtain the COVID-19 memoranda other than to take them from a public
board. ECF No. 39 at 2-3 ¶ 6; ECF No 42 at 2-3 ¶ 5. In contrast, Plaintiff offers that the copies he attempted to send lacked “staple wounds,” which, if the copies were posted on a public board, would be
present on the page. ECF No. 15 at 5-6 ¶¶ 21, 23. Plaintiff asserts that he lacked access to the public board during the time in question. ECF No. 15 at 11 ¶ 61. Plaintiff offers evidence of an infraction issued to another prisoner, who was also
found guilty of possession of two “notifications” that were “required to remain in the unit.” ECF No. 47 at 4. In that prisoner’s appeal, the Disciplinary Hearing Officer found that “the documents that [the prisoner] had acquired were actually copies that had not been obtained from the bulletin board and may have in fact
been given to [the prisoner] by staff” and that “there were some documents that were disturbed to all offenders by sliding them under your cell doors.” ECF No. 47 at 4.
The dispute over where Plaintiff received the COVID-19 memoranda is not material to his censorship claim. Plaintiff’s claims do not arise out of any alleged failure of due process or deficiency in AHCC’s mail rejection proceedings. Plaintiff claims that Defendants censored him in violation of his First Amendment
rights. The Court therefore narrows focus to the decision to reject Plaintiff’s mail. In more typical outgoing prisoner mail censorship cases such as Barrett v. Belleque, 544 F.3d 1060 (9th Cir. 2008), a prisoner’s mail is rejected according to
some prison policy, the prisoner challenges the rejection as unconstitutional, and the prison defends the rejection as justified under Procunier. Id. at 1062. In such cases, the prison’s offered justification is not factually disputed, the parties quarrel
over the constitutionality of the justification. Id.; see also Procunier, 416 U.S. at 398-99; Riggins v. Clarke, 403 Fed. Appx. 292, 294 (9th Cir. 2010); Witherow v. Paff, 52 F.3d 264, 265-266 (9th Cir. 1995); Pederson v. Schneider, 575 F. Supp. 3d
1339, 1348-1351 (W.D. Wash. 2021). Here, the dispute is whether the prison’s offered justification is pretextual. Plaintiff, in his response to Defendants’ undisputed facts, does not dispute that Defendant Longino believed his mail contained contraband. ECF No. 46 at 2.
However, in his response to the motion for summary judgment, Plaintiff advances a theory that Defendants attempted to “stop[] copies of its formal notice to imates [sic] from reaching [Plaintiff’s] intended audience: journalist capable of
researching and publishing/broadcasting on the matter.” ECF No. 45 at 14. Plaintiff argues that Defendants held “animus toward [Plaintiff’s] effort to make [WDOC’s] no-mask policy public.”6 ECF No. 45 at 13. At oral argument,
6 The Court was not provided a copy or image of the COVID-19 memoranda at issue. According to Plaintiff’s pro se Amended Complaint, the memoranda included instruction from the “superintendent” that “face masks would be issued,
but staff were not required to wear them.” ECF No. 15 at 3 ¶ 14. Plaintiff’s counsel accused Defendant Longino of acting in bad faith and questioned her offered justification for the mail rejection. Plaintiff alleges that
Defendant Longino lied at the April 26, 2020 infraction hearing, by claiming that Plaintiff admitted to possession of a copy of the COVID-19 memoranda without authorization. ECF No. 15 at 4-5 ¶ 23; ECF No. 46 at 3. Plaintiff argues that
Defendant Longino’s “allegations are an intentional deception to support the adverse actions” against him. ECF No. 15 at 4 ¶ 20. Plaintiff’s briefing lacks citation to factual material supporting his theory. The Court resorts to Federal Rule of Civil Procedure 56(c)(1), which provides as
follows: (1) Supporting Factual Positions. A party asserting that a fact . . . is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence . . . of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. While Plaintiff’s pro se Amended Complaint is verified and may serve as an affidavit in opposition to summary judgment, the assertions therein must be made on personal knowledge to raise a genuine dispute of fact. Fed. R. Civ. P. 56(c)(4); Strong, 724 F.3d at 1045. Plaintiff’s assertions as to Defendant Longino’s motive for rejecting his mail are not based upon his personal knowledge, they are rooted in his belief that he was censored to prevent the media from seeing AHCC’s COVID-
19 policy. See Columbia Pictures Indus. v. Prof’l Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir. 1991) (“Because [affiant’s] declaration is not based on personal knowledge, but on information and belief, his statement does not raise a
triable issue of fact.”). To summarize, Defendant Longino submits that she rejected Plaintiff’s mail due to her belief that Plaintiff had obtained the COVID-19 memoranda illicitly. Plaintiff asserts in his verified complaint and in briefing that Defendant Longino
rejected his mail as part of a coordinated attempt to censor his communications with the media, to conceal the prison’s response to the COVID-19 pandemic from the public. Plaintiff does not cite to any materials in the record that raise a factual
dispute as to Defendant Longino’s justification. Fed. R. Civ. P. 56(c)(1)(A). To the contrary, while Plaintiff provides evidence that Defendant Longino was mistaken and challenges the reasonableness of her belief, he admits that Defendant Longino believed his possession of the COVID-19 memoranda was not authorized.
ECF No. 46 at 2 (responding “NOT DISPUTED” to Defendants’ Statement 4). Thus, while Plaintiff appears to dispute the purpose of his mail rejection, he has not provided evidence demonstrating that the dispute is genuine.
Essential to Plaintiff’s claim is that Defendant Longino’s censorship of his mail was unjustified. Barrett, 544 F.3d at 1062. Plaintiff has offered no evidence
raising a genuine dispute that his mail was censored for any reason other than to prevent prisoners from possessing items which they are not authorized to have. The Court grants summary judgment as to Plaintiff’s censorship claims against
Defendant Longino. 3. Plaintiff’s Censorship Claims against Remaining Defendants Plaintiff maintains claims of censorship against Defendant Westfall, who upheld Defendant Longino’s mail rejection at the Superintendent/designee level,
ECF No. 42-1 at 2, and Defendant Schneider, who upheld the rejection at the headquarters level, ECF No. 42-1 at 2-3. Plaintiff offers no factual basis for his claims against Defendants Westfall and Schneider other than their review of
Defendant Longino’s mail rejection. As found above, Plaintiff raises no genuine dispute of as to Defendant Longino’s legitimate basis for rejecting his mail. Plaintiff fails to dispute that Defendants Westfall and Schneider were similarly justified in upholding Defendant Longino’s mail rejection. The Court grants
summary judgment as to Defendants Westfall and Schneider. C. Retaliation To demonstrate First Amendment retaliation by prison officials, a plaintiff
must show: (1) that a state actor took some adverse action against a prisoner (2) because of (3) that prisoner’s protected conduct, and that such action (4) would chill or silence a person of ordinary firmness from future First Amendment
activities, and (5) the retaliatory action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citations omitted); see also Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir.
2012); Brodheim v. Cry, 584 F.3d 1262, 1269-70 (9th Cir. 2009). “[P]rison officials may not defeat a retaliation claim on summary judgment simply by articulating a general justification for a neutral process, when there is a genuine issue of material fact as to whether the action was taken in retaliation for
the exercise of a constitutional right.” Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (collecting cases). However, the Ninth Circuit has “repeatedly held that mere speculation that defendants acted out of retaliation is not sufficient” to
survive summary judgment. Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). A court “should ‘afford appropriate deference and flexibility’ to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory.” Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (quoting Sandin v.
Conner, 515 U.S. 472, 482 (1995)). Plaintiff claims that Defendants retaliated against his attempt to contact the media. Plaintiff claims retaliation by Defendants Longino, Aldendorf, Bolinger,
Martin, and Smith for “writing an infraction against him . . . , or by participating or sanctioning the infraction process . . . .” ECF No. 15 at 14 ¶ 74. Plaintiff claims retaliation by Defendants Longino, Westfall, Key, Martin, Smith, and Schneider
for “generating knowingly false allegations leading to mail restriction and infraction, and in sanctioning these false reports to uphold the infractions and mail rejections.” ECF No. 15 at 16 ¶ 75. The Court has found, above, that Defendants
Martin, Smith, Bolinger, and Key lacked the requisite personal participation in any alleged depravations of constitutional rights and therefore Plaintiff’s retaliation claims against those defendants fail. As previously explained, prisoners have a right to send and receive mail.
Witherow, 52 F.3d at 265. The infractions and mail rejections at issue, as well as the alleged false allegations giving rise to mail restriction and infractions, would undoubtedly “chill or silence a person of ordinary firmness from future First
Amendment activities,” and therefore constitute adverse action for the purposes of retaliation. Watison, 668 F.3d at 1114. Plaintiff must produce evidence that raises a genuine dispute as to Defendants’ motive for the adverse actions. “In the First Amendment context, a
plaintiff creates a genuine issue of material fact on the question of retaliatory motive when he or she produces [1] evidence that the defendant knew of the protected speech, [2] evidence of proximity in time between the protected speech
and the allegedly retaliatory decision, [3] evidence that the defendant expressed opposition to the speech or [4] evidence that the defendant’s proffered reason for the adverse action was false or pretextual.” Corales v. Bennett, 567 F.3d 554, 568
(9th Cir. 2009) (emphasis removed). Plaintiff need only “put forth evidence of retaliatory motive, that, taken in the light most favorable to him, presents a genuine issue of material fact. . . .” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009)
(citations omitted). The record includes evidence that each Defendant took adverse action against Plaintiff immediately upon learning that Plaintiff had attempted to contact the media, or, at a minimum, as much is easily inferred from the record. ECF No.
39 at 2-7 ¶¶ 3, 7, 9, 15, 18, 22; ECF No. 42-1; ECF No. 46 at 2-5. Plaintiff has therefore produced evidence of proximity in time and Defendants’ awareness of the protected activity. However, the significance of this evidence is somewhat
mitigated by the necessary relatedness of the adverse action and Defendants’ awareness. This is not a case where an adverse action is wholly unrelated from a protected activity and gives rise to an inference of motive. See, e.g., Brodheim, 584 F.3d at 1265-66 (prison officer threatened prisoner with transfer after prisoner
submitted grievances against him); Bruce, 351 F.3d at 1288-1287 (prisoner was determined to be a gang member after filing grievances regarding inadequate prison conditions). Here, the event which alerted each defendant to Plaintiff’s
protected activity is the same event in which the defendant took adverse action against him. Further, “timing alone, though possibly sufficient to establish a prima facie case for retaliation, will not suffice . . . to defeat a motion for summary
judgment. . . .” Wilson v. City of Fountain Valley, 372 F. Supp. 2d 1178, 1191 (C.D. Cal. 2004) (collecting cases); see also Quiroz v. Horel, 85 F. Supp. 3d 1115, 1134 (C.D. Cal. 2015) (citing Pratt, 65 F.3d at 808).
Absent from the record is evidence that Defendants expressed opposition to Plaintiff’s protected speech. There is no evidence as was in Bruce v. Ylst, for example, that the officers voiced opposition to his protected activity. Bruce, 351 F.3d at 1289. In Bruce, the plaintiff produced evidence that a defendant officer
made comments such as “[t]he higher-ups want you [marked as a gang member] to make an example out of you do discourage similar complaints and protests . . . .” Id.; see also Schroeder, 55 F.3d at 460 (“[Plaintiff] demonstrated his personal
knowledge by citing two specific instances where correctional staff members . . . made statements from which a jury could reasonably infer a retaliatory motive. . . .”); Jones v. Mora, Case No. 20-CV-04093-TSH, 2021 WL 1531448, at *1 (N.D. Cal. Apr. 19, 2021) (before performing a sexually invasive search, a prison officer
said: “This is one of them who have wrote me up, search his ass”); Perkins v. Angulo, Case No. 3:18-CV-0850-DMS, 2021 WL 948804, at *3 (S.D. Cal. Mar. 12, 2021) (After denying a family visiting application, a prisoner appealed the
denial, and the reviewing officer said: “If you withdraw [a pending complaint against the officer] maybe your application wont [sic] be denied.”).
According to Plaintiff’s own allegations, Defendants consistently explained the mail rejections and infractions as issued due to Plaintiff’s unauthorized possession of the COVID-19 memoranda. The notion that Defendants opposed
Plaintiff’s contact with the media is further undermined by the undisputed fact that, ultimately, Defendants approved his mail after the concern of his supposedly unauthorized possession was dispelled. ECF No. 39 at 5 ¶ 16; ECF No. 46 at 5. In fact, the prison allowed another prisoner in similar circumstances to contact the
media after the issue of his unauthorized possession was dispelled. ECF No. 47 at 4. The final consideration for retaliatory motive is “evidence that the
defendant’s proffered reason for the adverse action was false or pretextual.” Corales, 567 F.3d at 568. As explained above, Plaintiff attempts to relitigate the origin of his copy of the COVID-19 memoranda and provides evidence that the copy he first attempted to mail was slid under his cell door and not taken from a
public board. Yet, Plaintiff admits that Defendant Longino believed that his mail contained material he was not authorized to possess. ECF No. 39 at 2 ¶¶ 3-4; ECF No. 46 at 2.
Relating to the second rejection of his mail, Plaintiff alleges that Defendant Longino lied because she had been informed by Defendant Aldendorf as to the
origin of the copies of the COVID-19 memoranda in his second mail package. ECF No. 15 at 7 ¶ 38. The Court cannot take as fact Plaintiff’s allegations as to conversations for which he was not present. Strong, 724 F.3d at 1045. Further as
explained, the second mail rejection was reversed as soon as Defendant Longino determined that Plaintiff was permitted to possess the COVID-19 memoranda that he was mailing out. ECF No. 39 at 5 ¶ 17; ECF No. 46 at 5. Plaintiff merely asserts in argument that Defendants’ proffered reason is pretextual. He offers no
evidence from which a jury could make such a finding. Critically, Plaintiff, with counsel and after opportunity for discovery, has failed to place in the record any factual material supporting a nefarious motive to
silence Plaintiff. Retaliatory motive has often been found where prison officials attempt to silence a prisoner who, in their estimation, files too many grievances. See, e.g., Bruce, 351 F.3d at 1288 (“[Plaintiff] offered the suspect timing of the validation--coming soon after his success in the prison conditions grievances.”);
Rhodes, 408 F.3d at 562, 567 (“. . . because purely retaliatory actions taken against a prisoner for having exercised [his right to file a grievance], such actions violate the Constitution. . . .”). Or, retaliation against a prisoner who files too many
lawsuits challenging prison officer conduct. Schroeder, 55 F.3d at 460 (prisoner wrote a letter to a branch administrator complaining about infrastructure and maintenance). In these cases, it is reasonable for a jury to infer that a prison officer
would retaliate against protected activities that might have negative consequence for that officer. Here, Plaintiff presents no facts supporting a similar reasonable inference.
Plaintiff’s claims seem to charge, though not explicitly, that AHCC’s COVID-19 policy was controversial. However, there is no indication from the record that any of the individually named defendants had a hand in formulating the policy, was at risk of repercussion from its publication, adhered to it or failed to adhere to it, or
otherwise had any stake in the policy remaining concealed from the public. Plaintiff would leave the fact finder to speculate without factual basis as to the Defendants’ motive for preventing Plaintiff from publicizing AHCC’s COVID-19
policy. No reasonable jury could find a motive and, therefore, Plaintiff fails to demonstrate that this dispute is genuine. Fresno Motors, 771 F.3d at 1125. After showing a retaliatory motive, a Plaintiff “bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which
he complains.” Bruce, 351 F.3d at 1289. Plaintiff argues that “[Defendant] Longino’s actions of generating a knowingly false report and infraction in order to confiscate outgoing mail . . . where the contents do[] not threaten the security of
the prison or the recipient” does not advance a legitimate penological interest. ECF No. 15 at 6 ¶ 34, 9 ¶ 44. The contents of Plaintiff’s outgoing mail do not raise any security risk. However, to survive summary judgment, Plaintiff must raise a
genuine dispute as to whether the prohibition of prisoner possession of unauthorized materials is a legitimate goal. In Bruce, the adverse action at issue was that prison officers “validated” the
plaintiff as a gang member. 351 F.3d at 1286-87. The Ninth Circuit explained that there was a legitimate penological interest in stopping gang activity, but, if the defendants were using the validation procedure “as a cover or a ruse to silence and punish” the plaintiff for his protected activity, the procedure would lose its
validity. Id. at 1289. There is some parallel, here, as Plaintiff alleges that Defendants abused the mail rejection and infraction procedure to prevent him from sending mail to the media. However, the plaintiff in Bruce was able to point to
facts in the record showing that the adverse action was a ruse. 351 F.3d at 1288- 89. Plaintiff, in comparison, merely lodges conclusory allegations unsupported by evidence. The Court finds, particularly in light of the Ninth Circuit’s instruction that
courts “should afford appropriate ‘deference and flexibility’ to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory[,]” that Plaintiff fails to genuinely dispute that Defendants lacked a
retaliatory motive and that their conduct served a legitimate penological goal. Pratt, 65 F.3d at 807 (quoting Sandin, 515 U.S. at 482). The Court grants summary judgment for Defendants as to Plaintiff’s retaliation claims.
D. Qualified Immunity and Mootness As Plaintiff’s claims do not survive summary judgment, the Court need not address at length the remaining arguments in Defendants’ summary judgment
motion, which amount to affirmative defenses precluding Plaintiff’s claims or an aspect thereof. With regard to qualified immunity, there are no claims left for which qualified immunity may serve as a defense. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Turning to mootness, Plaintiff was released from AHCC to community supervision in September 2021. ECF No. 41-1 at 2; ECF No. 39 at 7. Article III of the United States Constitution restricts federal courts to cases and controversies.
Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir. 2012). “An inmate’s release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison’s policies unless the suit has been certified as a class action.” Id. (quoting Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (internal
quotation marks omitted)). “The same is true for claims seeking declaratory relief.” Id. Plaintiff’s claims for injunctive and declaratory relief are moot and Defendants are entitled to summary judgment on Plaintiff’s requests for such
relief. For the reasons stated herein, the Court grants summary judgment as to the
entirety of Plaintiff’s claims. Accordingly, IT IS ORDERED: 1. Defendants’ Motion for Summary Judgment, ECF No. 38, is
2. All claims are DISMISSED WITH PREJUDICE, with all parties to bear their own costs and attorney fees. 3. All other pending motions are DENIED AS MOOT.
4. All hearings and other deadlines are STRICKEN. 5. The Clerk’s Office is directed to ENTER JUDGMENT in Defendants’ favor and CLOSE this file.
The District Court Executive is directed to file this Order and Judgment accordingly, provide copies to all counsel, and close the file. DATED October 26, 2022.
s/Mary K. Dimke MARY K. DIMKE