Curtis Downing v. Johnnie Graves ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS L. DOWNING, No. 14-16308
Plaintiff-Appellant, D.C. No.
2:12-cv-00332-JCM-CWH
v.
JOHNNIE GRAVES; LEE GRIGGS; MEMORANDUM*
BRIAN E. WILLIAMS; BRYAN
WILSON; CHERYL BURSON; JERRY
HOWELL; JAMES COX; FRANK
DREESEN; BRIAN CONNETT;
RASHONDA SMITH; HOWARD
SKOLNIK; SHERYL FOSTER; A.
ROMERO; R. WOODBURY; JESUS
MERANZA; ROBERT HILL,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 19, 2016**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Curtis Downing appeals the district court’s grant of summary judgment on
his 42 U.S.C. § 1983 claims and the district court’s dismissal of his access to
courts claims pursuant to 28 U.S.C. § 1915(e)(2). We have jurisdiction pursuant to
28 U.S.C. § 1291. We review de novo the district court’s grant of summary
judgment, King v. AC & R Advert., 65 F.3d 764, 767 (9th Cir. 1995), and the
district court’s dismissal for failure to state a claim under § 1915(e)(2), Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm.
I. First Amendment retaliation and related claims
A viable First Amendment retaliation claim requires five elements: “(1) An
assertion that a state actor took some adverse action against an inmate (2) because
of (3) that prisoner’s protected conduct, and that such action (4) chilled the
inmate’s exercise of his First Amendment rights, and (5) the action did not
reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d
559, 567–68 (9th Cir. 2005). The district court concluded that no genuine issue of
material fact existed as to three of these elements: the causation of an adverse
action; the chilling of Downing’s speech; and the relationship between the actions
complained of and a legitimate correctional goal. The district court concluded that,
because Downing “continued to file multiple grievances . . . his First Amendment
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rights were not actually ‘chilled.’” The district court erred in focusing on whether
or not Downing’s speech was actually chilled, because “an objective standard
governs the chilling inquiry.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir.
2009).
This error, however, was harmless, because Downing did not establish a
genuine issue of material fact as to causation or the lack of a legitimate penological
goal. Downing adduced no evidence showing a retaliatory motive on the part of
the corrections officers. Rather, the record shows that: (1) Downing was charged
with and disciplined for charging inmates legal fees on the basis of evidence that
he charged a fellow inmate $2,200 for legal services; (2) Downing was charged
with being in possession of a fellow inmate’s legal papers because he was in
possession of such papers; (3) Downing was charged with abusing the grievance
process because he improperly asserted two or more grievances in a single
grievance claim; (4) Downing was transferred to address his and the prison’s safety
concerns; (5) the cell searches were random, and Downing was charged for having
contraband because in fact he had contraband.
Downing also failed to show a genuine issue of material fact as to whether
the challenged actions were unrelated to legitimate correctional goals. Prison
officials can have legitimate penological interests in ensuring compliance with the
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grievance process and in regulating the activities of prison law clerks, Shaw v.
Murphy, 532 U.S. 223, 230–31 (2001), transferring prisoners between cells and
prisons, Pratt v. Rowland, 65 F.3d 802, 808–09 (9th Cir. 1995), and in conducting
cell searches, see Hudson v. Palmer, 468 U.S. 517, 526–27 (1984). Because the
First Amendment retaliation claims fail, the related charges of failure to train and
conspiracy necessarily fail as well.
II. Fourteenth Amendment procedural due process claim
Downing received advanced written notice of the charges against him and
had three weeks to prepare his defense; the hearing officer created a written
statement providing the evidence relied upon and reasons for finding Downing in
violation of the regulations; Downing was asked if he wanted witnesses and
declined; and Downing was found guilty on the basis of evidence that he attempted
to charge a fellow inmate $2,200 for legal services. The proceedings thus satisfied
due process. Wolff v. McDonnell, 418 U.S. 539, 566–70 (1974) (setting out due
process requirements in prison disciplinary proceedings).
III. Access to courts claim
The touchstone of the right of access to courts is the “adequate opportunity
to file nonfrivolous legal claims challenging . . . convictions or conditions of
confinement.” Lewis v. Casey, 518 U.S. 343, 356 (1996). Thus, the official acts or
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omissions complained of must result in “actual prejudice with respect to
contemplated or existing litigation, such as the inability to meet a filing deadline or
to present a claim.” Id. at 348 (internal quotation marks omitted). Here, Downing
was able to successfully file this § 1983 action, and has failed to demonstrate that
the changes in the prison library policy violated his right of meaningful access to
the courts by causing him prejudice with respect to any current or anticipated
litigation.
AFFIRMED.
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