Johnson 151089 v. Thornell ( 2020 )

1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Johnson, No. CV 18-03055-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Defendants. 14 15 Plaintiff Richard Johnson, who is currently confined in Arizona State Prison 16 Complex-Eyman, brought this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 37.) 17 The parties cross-move for summary judgment. (Docs. 55, 57.)1 18 I. Background 19 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 20 Fourteenth Amendment Due Process claims against Defendants Ryan, Crabtree, Days, and 21 Montano and First Amendment retaliation claims against Defendants Belt and Montano. 22 (Docs. 9, 26.) The Court dismissed the remaining claims and Defendants. (Doc. 9.) 23 II. Summary Judgment Standard 24 A court must grant summary judgment “if the movant shows that there is no genuine 25 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 26 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 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 to Defendants’ Motion for Summary Judgment. (Doc. 62.) 1 movant bears the initial responsibility of presenting the basis for its motion and identifying 2 those portions of the record, together with affidavits, if any, that it believes demonstrate 3 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 4 If the movant fails to carry its initial burden of production, the nonmovant need not 5 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 6 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 7 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 8 contention is material, i.e., a fact that might affect the outcome of the suit under the 9 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 10 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 11 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 12 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 13 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 14 it must “come forward with specific facts showing that there is a genuine issue for trial.” 15 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 16 citation omitted); see Fed. R. Civ. P. 56(c)(1). 17 At summary judgment, the judge’s function is not to weigh the evidence and 18 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 19 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 20 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 21 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 22 III. Facts 23 A. The Security Threat Group Program 24 In 1991, the Arizona Department of Corrections (ADC) established a Security 25 Threat Group (STG) policy dedicated to controlling prison gang activity in Arizona’s 26 prisons. (Doc. 58 ¶ 1; Doc. 70 ¶ 1.) A reduction in prison gang membership and activities 27 contributes to the decrease of violence, intimidation, and harassment of other inmates. 28 (Doc. 58 ¶ 1; Doc. 70 ¶ 1.) The purpose of the STG policy is to minimize the threat that 1 inmate-gang or gang-like activity poses to the safe, secure, and orderly operations of 2 institutions. (Doc. 58 ¶ 2; Doc. 70 ¶ 2.) Information is gathered by the Special Security 3 Unit (SSU) about inmates suspected of being in a STG; when enough information is 4 collected, a validation packet is put together, and a hearing is held. (Doc. 58 ¶ 3; Doc. 70 5 ¶ 3.) If successfully validated as an STG-member, the validated inmate is classified as a 6 maximum custody inmate. (Doc. 58 ¶ 3; Doc. 70 ¶ 3.) Once validated, an inmate can only 7 have his custody reduced from maximum custody if he renounces his STG membership 8 and debriefs or successfully completes the Step-Down Program. (Doc. 58 ¶ 4; Doc. 70 9 ¶ 4.) The Step-Down Program does not require renunciation and debriefing; as a result, 10 any indication that the inmate is involved in gang activity results in removal from the Step- 11 Down Program because the absence of gang activity is the primary requirement of 12 remaining in the Step-Down Program. (Doc. 58 ¶ 5; Doc. 70 ¶ 5.) Inmates are permitted 13 to renounce and debrief at any time. (Doc. 58 ¶ 6; Doc. 70 ¶ 6.) 14 To participate in the Step-Down Program, a validated STG-member notifies staff in 15 writing that he wants to participate in the Step-Down Program. (Doc. 58 ¶ 7; Doc. 70 ¶ 7.) 16 To be eligible, the inmate must successfully complete a 24-month period where he has not 17 participated in any documented STG/gang activity or other behaviors, including, but not 18 limited to, assaultive or violent behavior and drug use or possession. (Doc. 58 ¶ 8; Doc. 19 70 ¶ 8.) The inmate must also successfully complete a polygraph examination that is 20 specific in nature concerning the inmate’s intent of participating in the program. (Doc. 58 21 ¶ 9; Doc. 70 ¶ 9.) The inmates are screened by the SSU and STG Unit to determine if they 22 meet criteria to enroll in the program. (Doc. 58 ¶ 10; Doc. 70 ¶ 10.) 23 A comprehensive investigation of each validated STG inmate is completed to assess 24 the inmate’s STG involvement. (Doc. 58 ¶ 10; Doc. 70 ¶ 10.) Validated STG inmates 25 must successfully complete the Step-Down Program to be eligible to reintegrate into close 26 custody institutions; their behavior must demonstrate that they do not pose a threat to staff, 27 inmates, or the safe, secure and orderly operations of the institution. (Doc. 58 ¶ 11; Doc. 28 1 70 ¶ 11.) The Step-Down Program must be completed within 18 months of the date of 2 entry into the Program. (Doc. 58 ¶ 12; Doc. 70 ¶ 12.) 3 If the inmate successfully completes the 18-month program and passes a polygraph, 4 the inmate then becomes eligible for close custody. (Doc. 58 ¶ 13; Doc. 70 ¶ 13.) After a 5 successful transition to the Close Custody Unit, the inmate remains under an indefinite 6 period of monitoring for Step-Down inmates. (Doc. 58 ¶ 14; Doc. 70 ¶ 14.) ADC policy 7 states that inmates enrolled in the Step-Down Program must be removed if they violate 8 criteria outlined in the policy or if they fail a polygraph; the rationale for the removal must 9 be documented in an Information Report. (Doc. 58 ¶¶ 15-16; Doc. 70 ¶¶ 15-16.) Upon 10 removal from the Step-Down Program, the Deputy Warden of the inmate’s assigned 11 housing unit must review the circumstances of the removal and determine whether to 12 reinstate or terminate the inmate from the Step-Down Program. (Doc. 58 ¶¶ 16-17; Doc. 13 70 ¶¶ 16-17.) A disciplinary ticket, a disciplinary investigation, or utilizing a Form A is 14 not necessary to remove an inmate from the Step-Down Program. (Doc. 58 ¶ 18; Doc. 70 15 ¶ 18.) At the time of Plaintiff’s removal from the Step-Down Program, inmates in Phases 16 I-IV of the Step-Down Program were not entitled to have Revocation hearings prior to their 17 removal from the program and did not have the ability to appeal their removal to the STG 18 Appeals Committee, but the Inmate Grievance Procedure remained available.2 (Doc. 58 19 ¶¶ 19-20; Doc. 70 ¶ 19.) 20 Inmates who are removed from the Step-Down Program due to direct involvement 21 in STG activity or for any reason deemed appropriate by the STG Validation Hearing 22 Committee during the inmate’s placement in the program shall be required to serve a 23 minimum of two years under validated status before they are eligible to participate in the 24 program. (Doc. 58 ¶ 21; Doc. 70 ¶ 21.) Inmates are given two opportunities to participate 25 in the Step-Down Program, but if removed from the program two times, inmates become 26 27 2 Plaintiff asserts that Department Order (DO) 802 was not available because DO 28 806 does not serve as a duplicate appeal process or substitute appeal process for DO 806. (Doc. 70 ¶ 20.) 1 permanently ineligible from participating in the program, and inmates remain in validated 2 status unless they choose to participate in the debrief process. (Doc. 58 ¶ 22; Doc. 70 ¶ 22.) 3 DO 812 covers the Inmate Maximum Custody and Management Incentive System, 4 which is a system that requires inmates in Maximum Custody to work through a program 5 that utilizes a step incentive system and provides the opportunity to participate in jobs, 6 programs, and other out-of-cell activities. (Doc. 58 ¶ 23; Doc. 70 ¶ 23.) Based on behavior 7 and programming, inmates may progress from controlled-based-housing to open, 8 privilege-based housing, where movement outside a cell is without restraint equipment. 9 (Doc. 58 ¶ 23; Doc. 70 ¶ 23.) The Program Team reviews inmates monthly to decide step 10 movement, housing, and review program needs and completion; during reviews, the 11 Program Team determine the inmate’s step level with Step I being the most restrictive and 12 Step III being the least restrictive. (Doc. 58 ¶ 24; Doc. 70 ¶ 24.) Inmates in the Browning 13 Unit can be eligible for Step II after a minimum of thirty days and can be eligible for Step 14 III after a minimum of thirty days in Step II. (Doc. 58 ¶ 25; Doc. 70 ¶ 25.) Inmates in Step 15 III at Browning receive: (1) recreation in three, 2.5 hour blocks per week in the chute 16 enclosure, to include one time per week in the 10 x 10 enclosure, (2) three, two-hour, non- 17 contact visits per week, (3) three fifteen minute phone calls per week, and (4) are allowed 18 to spend up to $100 per week at the inmate store. (Doc. 58 ¶ 26; Doc. 70 ¶ 26.) 19 B. Plaintiff’s Removal from the Step-Down Program 20 Plaintiff has been a validated STG member of the Warrior Society since October 21 22, 2014. (Doc. 58 ¶ 27; Doc. 70 ¶ 27.) Plaintiff participated in and was removed from 22 the Step-Down Program prior to his removal in 2018. (Doc. 58 ¶ 28; Doc. 70 ¶ 28.) On 23 February 1, 2018, Plaintiff was re-instated at Phase III of the Step-Down Program based 24 on the recommendation of the STG Validation Hearing Committee. (Doc. 58 ¶ 29; Doc. 25 58-1 at 32.) On April 12, 2018, Plaintiff arrived at ASPC-Florence Central Unit to begin 26 Phase IV of the Step-Down Program. (Doc. 58 ¶ 30; Doc. 70 ¶ 30.) 27 On April 13, 2018, Central Unit SSU conducted a search of Plaintiff’s property and 28 discovered three documents concealed in Plaintiff’s legal documents: (1) a calendar code 1 pertaining to the STG-specific Warrior Society with the name and ADC number of a 2 Warrior Society validated inmate, (2) a roster pertaining to the STG-specific Warrior 3 Society of validated members housed in Wing IV of ASPC-Eyman, Browning Unit, and 4 (3) a “micro note” authored by another STG (Dine Pride) validated inmate directed to 5 another inmate in the Step-Down Program. (Doc. 58 ¶ 32.) Plaintiff denies possessing, 6 knowing about, or facilitating the transport of STG-specific documents and objects to the 7 “characterization of the purported documents.” (Doc. 70 ¶ 32.) 8 SSU Sergeant Belt wrote a memorandum documenting finding the documents in 9 Plaintiff’s cell and concluded that they demonstrated clear evidence that Plaintiff violated 10 DO 806.08 § 1.2.2.2.4, which prohibits any participation in STG activity for inmates 11 participating the Step-Down program. (Doc. 58 ¶ 33.) Sergeant Belt determined that 12 Plaintiff was using the documents to facilitate communication between STG members 13 housed at ASPC-Eyman Browning Unit and ASPC-Florence Central Unit. (Id.) Defendant 14 Montano, Deputy Warden of the Central Unit, reviewed the memorandum and determined 15 there was sufficient evidence to remove Plaintiff from the Step-Down Program and 16 Plaintiff was transferred to Cell Block Kasson pending his move back to ASPC-Eyman, 17 Browning Unit. (Id. ¶ 34.) 18 Plaintiff was provided notice of his hearing regarding proposed placement in 19 maximum custody on April 23, 2018. (Doc. 58 ¶ 35.) Plaintiff asserts that when he asked 20 Belt why he was being terminated from the Step Down Program, Belt responded that his 21 “higher-ups wanted Plaintiff off the yard and jailhouse lawyers weren’t welcomed on his 22 unit,” but Belt refused to tell Plaintiff who his “higher-ups” were. (Doc. 70 ¶ 47.) On 23 April 25, 2018, following the maximum custody placement hearing, it was recommended 24 that Plaintiff be placed in maximum custody due to his status as a validated STG member. 25 (Id. ¶ 36; Doc. 70 ¶ 36.) 26 Plaintiff filed an appeal regarding his placement in maximum custody and 27 Defendant Crabtree responded to the appeal and informed Plaintiff that his placement was 28 correct because he was a validated STG member and that his placement was determined 1 due to “security threat group documented activity found in your belongings during a search 2 by SSU officers on April 13, 2018.” (Doc. 58 ¶ 37; Doc. 70 ¶ 37.) Defendant Crabtree did 3 not have the authority to address, question, or change the issues surrounding Plaintiff’s 4 removal from the Step-Down Program. (Doc. 58 ¶ 38; Doc. 70 ¶ 38.) Plaintiff filed a 5 formal grievance regarding his placement in maximum custody and Defendant Days 6 responded and informed him that his removal from the Step-Down Program was 7 appropriate because DO 806 does not require inmates in Phases I-IV of the Step-Down 8 Program to receive a revocation hearing prior to being removed from the program. (Doc. 9 58 ¶ 39; Doc. 70 ¶ 39.) 10 IV. Discussion 11 Defendants argue that they are entitled to summary judgment on Plaintiff’s Due 12 Process claims because participation in the Step-Down Program is not a protected liberty 13 interest, ADC’s validation procedure complies with Due Process, and Defendants Ryan, 14 Crabtree, and Days did not participate in Plaintiff’s removal from the Step-Down Program. 15 Defendants also assert that they are entitled to qualified immunity because the law is not 16 clearly established that due process is required for an alternative program that allows 17 inmates to move out of maximum custody like Arizona’s Step-Down Program. Defendants 18 further argue that Belt and Montano did not retaliate against Plaintiff. 19 A. Due Process 20 Plaintiff asserts that his due process rights were violated when he was removed from 21 the Step-Down Program because he never received “any kind of notification of what is 22 being used to classify him as an ‘active STG member.’” (Doc. 55 at 4.) 23 1. Ryan 24 Plaintiff asserts, that as Director of the ADC, Ryan exercises administrative control 25 of and responsibility for the ADC and “the way Ryan chooses to interpret those 26 responsibilities and administrative controls gives Plaintiff no procedural or even minimum 27 due process of any kind while being subject to a significant deprivation of liberty.” (Doc. 28 1 55 at 8.) Plaintiff appears to argue both that DO 806 is unconstitutional and that prison 2 officials did not abide by DO 806. (See generally Doc. 55.) 3 Plaintiff’s allegations and arguments regarding Defendant Ryan are conclusory and 4 the Court cannot ascertain the exact basis of Plaintiff’s claim against Ryan. The facts in 5 the record before the Court do not show that Ryan was involved in the decision to remove 6 Plaintiff from the Step-Down Program, and Plaintiff has not shown that the process of 7 removing him was attributable to any unconstitutional policies, practices, or customs that 8 could be attributed to Defendant Ryan. Accordingly, Defendants’ Motion for Summary 9 Judgment will be granted as to Plaintiff’s due process claim against Defendant Ryan. See 10 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory, 11 speculative testimony in affidavits and moving papers is insufficient to raise genuine issues 12 of fact and defeat summary judgment.”). 13 2. Crabtree 14 Plaintiff asserts that Crabtree did not meaningfully review his classification, but 15 instead responded to a grievance stating that Plaintiff was correctly classified to maximum 16 custody due to the serious nature of Plaintiff’s participation in a security threat group. 17 (Doc. 55 at 6-7.) The facts in the record before the Courts show that Defendant Crabtree 18 did not determine that Plaintiff would be removed from the Step-Down Program and had 19 no authority to alter that decision because Plaintiff had not renounced and debriefed or 20 completed the Step-Down Program. Plaintiff has not introduced any evidence 21 controverting these facts. Accordingly, summary judgment will be granted in favor of 22 Defendant Crabtree as to Plaintiff’s due process claim against her. 23 3. Days 24 Defendant Days responded to Plaintiff’s formal grievance and informed him that 25 his removal from the Step-Down Program was appropriate because DO 806 does not 26 require inmates in Phases I-IV of the Step-Down Program to receive a revocation hearing 27 prior to being removed from the program. Plaintiff asserts that this response “perpetuat[ed] 28 the denial of providing a brief summary of the factual basis for the classification review, 1 and condoning the denial of Plaintiff’s opportunity to rebut whatever evidence is used to 2 classify him as an ‘active STG member.’” (Doc. 55 at 5.) Plaintiff further alleges that he 3 later spoke to Days about his situation and she told him she would look into it and get back 4 to him, but she never did. (Doc. 55 at 6.) 5 The record before the Court shows that Plaintiff was in Phase IV of the Step-Down 6 Program when he was removed. The version of DO 806 in effect at that time did not 7 require ADC staff to provide revocation hearings for inmates removed from Phases I-IV 8 of the Step-Down Program, and because Plaintiff was in Phase IV of the Step-Down 9 Program, Days had no authority to order a revocation hearing for his removal. Days was 10 not involved in the determination to remove Plaintiff from the Step-Down Program and did 11 not have authority to alter that decision. Plaintiff has not introduced any evidence 12 controverting these facts. Accordingly, summary judgment will be granted in favor of 13 Defendant Days as to Plaintiff’s due process claim against her. 14 4. Montano 15 Deputy Warden Montano reviewed the memorandum detailing the alleged STG- 16 related documents found in Plaintiff’s cell and determined there was sufficient evidence to 17 remove Plaintiff from the Step-Down Program. As such, the record before the Court shows 18 that Montano was personally involved in the decision to remove Plaintiff from the Step- 19 Down Program. 20 The Due Process Clause of the Fourteenth Amendment prohibits the states from 21 “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. 22 Const. amend. XIV, § 1. To determine whether a procedural due process violation has 23 occurred, a court engages in a two-step analysis. See Sandin v. Conner, 515 U.S. 472, 485- 24 87 (1995). First, a court looks to whether the person possesses a constitutionally 25 cognizable liberty interest with which the state has interfered. Id. Second, if the state has 26 interfered with a liberty interest, a court looks to whether this interference was 27 accompanied by sufficient procedural and evidentiary safeguards. See id. 28 Here, due to his status status as an STG member, Plaintiff has been classified into 1 maximum custody. It is well-settled that placement in maximum security segregation units 2 implicates a liberty interest requiring due process protections. Wilkinson v. Austin, 545 3 U.S. 209, 224 (2005). Under these circumstances, due process requires (1) upon initial 4 placement in segregation, the inmate receives notice of the factual basis for the segregation 5 and an opportunity to be heard; (2) some evidence to support the decision; and (3) review 6 of the inmate’s confinement status. Id. at 225-26. 7 Plaintiff’s initial placement into maximum security and whether there was evidence 8 to support that decision are not at issue in this action because Plaintiff does not contest his 9 initial classification as a member of a security threat group. Accordingly, the Court must 10 determine if the periodic review of Plaintiff’s confinement status satisfies due process. To 11 determine whether the periodic review afforded Plaintiff conforms to due process 12 requirements, the Court must consider “[1] the private interest that will be affected by the 13 official action; [2] the risk of an erroneous deprivation of such interest through the 14 procedures used, and the probable value, if any, of additional or substitute procedural 15 safeguards; and [3] the Government’s interest, including the function involved and the 16 fiscal and administrative burdens that the additional or substitute procedural requirement 17 would entail.” Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). 18 Under these circumstances, the Ninth Circuit Court of Appeals has indicated that 19 annual reviews of the inmate’s confinement status, by themselves, are 20 insufficient. Toussaint v. McCarthy, 801 F.2d 1080, 1101 (9th Cir.1986), abrogated in 21 part on other grounds by Sandin v. Conner, 515 U.S. 472, (1995)); Hernandez v. Schriro, 22 No. 08-15493, 357 F. App’x 747, 749 (9th Cir. 2009) 23 This Court has previously held that ADC’s periodic review, combined with the 24 ability to debrief at any time, satisfies due process. Hernandez v. Schriro, No. CV 05- 25 2853-PHX-DGC (JJM), 2011 WL 2910710, at *8-9 (D. Ariz. 2011); see Mendez v. Ryan, 26 No. CV-12-0271-PHX-RCB (MHB), 2013 WL 6408389, at *8 (D. Ariz. 2013); Standley 27 v. Ryan, No CV 10-1867-PHX-DGC (ECV), 2012 WL 3288728, at *9-10 (D. Ariz. 2012); 28 1 Faulkner v. Ryan, No. CV 10-2441-PHX-SMM (JFM), 2012 WL 407452, at *9-10 (D. 2 Ariz. 2012). 3 While in those cases Plaintiff also had the ability to participate in the Step-Down 4 Program, the Courts’ reasoning that the ability to debrief at any time and non-pretextual 5 annual reviews satisfy the test articulated in Mathews applies equally. Plaintiff makes no 6 argument as to why the periodic reviews combined with debriefing are inadequate and 7 makes no argument that debriefing is somehow unavailable to him. Plaintiff’s entire 8 argument is that he was entitled to procedural protections when terminated from the Step- 9 Down Program, but Defendants argue that the Step-Down Program itself creates no liberty 10 interest. 11 Indeed, where, as here, Plaintiff’s placement in maximum custody complies with 12 the Due Process Clause and the periodic review complies with the Due Process Clause, the 13 Court is unable to find that the Step-Down Program creates an independent liberty interest. 14 The Step-Down Program is a program that is voluntarily administered by the ADC and is 15 not necessary for the ADC to comply with Due Process. As such, as long as Plaintiff is 16 afforded the process he is due for his placement in maximum custody, the Court cannot 17 find that he is entitled to greater protections simply because the ADC voluntarily offers a 18 program that would create another way for Plaintiff to be removed from maximum custody. 19 See Sandin, 515 U.S. at 481-84 (a court determines whether a liberty interest is created by 20 a state prison regulation or policy by focusing on the nature of the deprivation it effects); 21 James v. Rowlands, 606 F.3d 646, 657 (9th Cir. 2010) (“[W]hen a state establishes 22 procedures to protect a liberty interest that arises from the Constitution itself[,] . . . the state 23 does not thereby create a new constitutional right to those procedures themselves, and non- 24 compliance with those procedures does not necessarily violate the Due Process Clause. . . 25 . Rather, the Due Process Clause itself determines what process is due before the state may 26 deprive someone of a protected liberty interest.”). 27 Here, while Plaintiff’s placement in maximum custody constitutes a deprivation, 28 Plaintiff has been afforded due process in that deprivation through yearly reviews and the 1 opportunity to debrief. While the availability of the Step-Down Program gives Plaintiff 2 another opportunity to be released from maximum custody, that opportunity is not 3 necessary for Plaintiff to be afforded his due process. Accordingly, there is no evidence of 4 a due process violation in this record, and summary judgment will be granted in favor of 5 Defendant Montano as to Plaintiff’s due process claim. 6 B. Retaliation 7 Plaintiff asserts that he was removed from the Step-Down Program because at the 8 time of his removal, he had a lawsuit pending before the United States Court of Appeals 9 for the Ninth Circuit. Plaintiff’s claim in that prior lawsuit was that Validation Committee 10 Chair Diaz, ASPC-Winslow/Kaibab Unit Deputy Warden Pruett, and ASPC- 11 Eyman/Rynning Unit Associate Deputy Warden Rode retaliated against Plaintiff for filing 12 grievances by validating Plaintiff as a gang member. (Johnson v. Bendel, No. CV 15- 13 00670-PHX-GMS (D. Ariz.), Doc. 159-1 at 2, Doc. 139 at 5.). 14 “[A] viable claim of First Amendment retaliation entails five basic elements: 15 (1) [a]n assertion that a state actor took some adverse action against an inmate (2) because 16 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 17 exercise of his First Amendment rights, and (5) the action did not reasonably advance a 18 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 19 1. Protected Conduct 20 Courts have determined that protected conduct in the prison context includes filing 21 lawsuits. Rhodes, 408 F.3d at 567. Here, Plaintiff alleges that Defendants Belt and 22 Montano retaliated against him for filing the previous lawsuit against Diaz, Pruett, and 23 Rode, and has thus sufficiently alleged that he was engaged in protected conduct. 24 . 2. Causation and Legitimate Correctional Goal 25 The evidence in the record before the Court does not support Plaintiff’s assertion 26 that Defendants Belt and Montano removed him from the Step-Down Program because of 27 his protected conduct. “To prevail on a retaliation claim, a plaintiff must show that his 28 protected conduct was the substantial or motivating factor behind the defendant’s conduct.” 1 Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009) (internal quotation marks and citation 2 omitted). Plaintiff speculates that Belt’s comment that his “higher-ups” wanted Plaintiff 3 off the yard because they “don’t like jailhouse lawyers” means that he was being retaliated 4 against for filing his previous action. Plaintiff provides no evidence regarding who Belt’s 5 superiors were or their alleged involvement in removing him from the Step-Down Program. 6 Montano avers that he had no knowledge of Plaintiff’s previous litigation (Doc. 61-1 at 7 36), and Plaintiff’s previous litigation was not against any Defendants to this action and 8 was filed years prior to the alleged events that gave rise to Plaintiff’s claim in this action. 9 Plaintiff’s speculation about the alleged meaning of Belt’s alleged comment is insufficient 10 to create a disputed issue of material fact that any Defendant was aware of the previous 11 action. See Soremekun, 509 F.3d at 984. 12 Even if Defendants knew about the previous action, Plaintiff has failed to show that 13 the previous action was a substantial or motivating factor behind his removal from the Step- 14 Down Program. Rather, the evidence shows that SSU officers discovered evidence in 15 Plaintiff’s cell and brought that evidence to Belt, who prepared a memorandum detailing 16 how the evidence found was allegedly related to a security threat group, and after reviewing 17 the memorandum, Montano determined that Plaintiff should be removed from the Step- 18 Down Program due to his alleged continued involvement in a security threat group. 19 Although Plaintiff denies any knowledge of the evidence found in his cell, Plaintiff 20 presents no evidence that Defendants Belt and Montano were involved in any impropriety 21 with regard to how the evidence got to Plaintiff’s cell. Rather, the record before the Court 22 shows that Belt and Montano relied on the evidence allegedly found in Plaintiff’s cell when 23 determining that Plaintiff should be removed from the Step-Down Program. Because Belt 24 and Montano relied on this evidence to remove Plaintiff from the Step-Down Program, 25 Plaintiff has failed to show that filing a prior lawsuit was the substantial or motivating 26 factor behind his removal from the Step-Down Program. 27 As such, Plaintiff has failed to demonstrate that there is a disputed issue of material 28 fact that the previous action was a substantial or motivating factor behind Plaintiff’s removal from the Step-Down Program or that the removal did not reasonably advance a 2| legitimate correctional goal. 3 For all of the foregoing reasons, Defendants’ Motion for Summary Judgment will be granted. 5| ITIS ORDERED: 6 (1) The reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Summary Judgment (Doc. 55) and Defendants’ Motion for Summary Judgment (Doc. 8) 57). 9 (2) Defendants’ Motion for Summary Judgment (Doc. 57) is granted, and the 10 | action is terminated with prejudice. 11 (3) Plaintiff's Motion for Summary Judgment (Doc. 55) is denied. 12 (4) The Clerk of Court must enter judgment accordingly. 13 Dated this 13th day of February, 2020. 14 Michael T. Liburdi 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28