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Mintun v. Peterson

March 30, 2010

DENNIS MICHAEL MINTUN, PLAINTIFF,
v.
LES PETERSON; RANDY BLADES; S. LONG; PAM SONNEN; R. JORDAN; D. DIETZ; K. YORDY; GREG WREN; K. BASSFORD; ROBERT JORGENSON; TERRY KNAPP; M. JOHNSON; SGT. HOUSE; SGT. BILLIE FINLEY; DARRELL TAYLOR; KATHLEEN MCNULTY; SGT. M. WHITE; SGT. D. WILLIAMS; C/O BERTWELL; AND C/O D. JOHNSON; DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

Pending before the Court are various motions filed by the parties. Having fully reviewed the record, the Court finds that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs, and record without oral argument.

D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.

DEFENDANTS' MOTIONS FOR EXTENSION OF TIME AND MOTION TO FILE OVERLENGTH REPLY BRIEF

Defendants have filed two Motions for Extension of Time to File a Reply Brief (Docket Nos. 51 & 52). Plaintiff objects to such an extension (of less than a week). Plaintiff's objection is not well-founded, as this Court previously granted him a one-month extension. See Docket Entry No. 34. The motions for an extension of time will be granted. Defendant's Reply in Support of the Motion for Summary Judgment (Docket No. 55) and Defendants' Motion to Strike (Docket No. 54), lodged concurrently with the Reply, are considered timely filed.

Defendants have also filed an unopposed Motion for Leave to File an Overlength Reply Brief (Docket No. 53). The Court will grant this motion.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

A. Introduction

Plaintiff is a homosexual prisoner in the custody of the Idaho Department of Correction ("IDOC"), currently incarcerated at Idaho State Correctional Institution ("ISCI"). Plaintiff claims he was the victim of multiple civil rights violations by ISCI employees. Plaintiff brought this lawsuit under 42 U.S.C. § 1983 against the following Defendants, who at relevant times were employed at ISCI in the following capacities as alleged by Plaintiff:

1. Les Peterson, chaplain

2. Darrell Taylor, chaplain

3. Karen Bassford, librarian

4. Greg Wren, supervisor of Karen Bassford

5. Robert Jorgenson, supervisor of the print/decal shop at Correctional Industries

6. Terry Knapp, supervisor of Robert Jorgenson

7. Richard Jordan, housing Sergeant in Unit 14

8. Stan House, facility move coordinator

9. D. Dietz, Lieutenant

10. Billie Finley, housing Sergeant in Unit 16

11. Randy Blades, Warden

12. S. Long

13. K. Yordy

14. Pam Sonnen

15. M. Johnson

16. R. LaTulippe

17. Kathleen McNulty

18. Sergeant M. White

19. Sergeant D. Williams

20. C/O Bertwell

21. C/O D. Johnson*fn1 Plaintiff asserts First Amendment free exercise and retaliation claims, as well as claims under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), against Defendants Peterson, Taylor, and Blades in connection with Plaintiff's participation in a non-denominational Christian fellowship and choir. Plaintiff asserts Fourteenth Amendment claims against Defendants Peterson, Taylor, Bassford, Wren, Jorgenson, Knapp, and Blades, arguing that these Defendants denied Plaintiff equal protection because he is gay. He also claims his Fourteenth Amendment rights were violated by Defendants Long and Blades by finding him guilty without due process on a Disciplinary Offense Report ("DOR") for allegedly engaging in sexual activity with another inmate. Finally, Plaintiff alleges that Defendants Jordan, House, Dietz, Finley, and Blades violated his Eighth Amendment right against cruel and unusual punishment when they placed Plaintiff in certain housing units where he was attacked by other inmates.

Plaintiff filed his initial Complaint (Docket No. 3) on November 7, 2006. The Court reviewed the Complaint pursuant to 28 U.S.C. §§1915 and 1915A, and allowed Plaintiff to proceed on his free exercise, retaliation, equal protection, and Eighth Amendment claims. See Initial Review Order (Docket No. 6). Following that review, Plaintiff filed a First Amended Complaint (Docket No. 7) ("FAC"), which asserted the same claims as in the initial complaint, added a claim under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc ("RLUIPA"), and contained allegations against more Defendants.*fn2 FAC at 2, 5.

In its Order dated February 11, 2008, the Court allowed Plaintiff to proceed on his claims against all Defendants other than Officer LaTulippe, Pam Sonnen, and K. Yordy. See Docket No. 11. The remaining Defendants answered the FAC on May 2, 2008. See Docket No. 20. Defendants filed the instant motion for summary judgment on March 3, 2009. See Docket No. 28.

A. Standard of Law

Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not... a disfavored procedural shortcut," but is instead the "principal tool[] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).Material facts are those which may affect the outcome of the case. Id. at 248.

The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. Liberty Lobby, 477 U.S.at 256-57. The non-moving party must go beyond the pleadings and show "by [his] affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324 (citation and internal quotation marks omitted). A verified complaint based on personal knowledge of admissible evidence constitutes an opposing affidavit to a summary judgment motion. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979) (where the factual allegations of a verified complaint establish a prima facie case for relief under § 1983, and where the affidavits in support of summary judgment present conflicting versions of the facts which require credibility determinations, a genuine issue as to the material facts of the incident is presented, precluding summary judgment).

Only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002); see also Fed. R. Civ. P. 56(e). In determining admissibility for summary judgment purposes, it is the content of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could be presented in an admissible form at trial, those contents may be considered on summary judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay contents of plaintiff's diary on summary judgment because at trial, plaintiff's testimony of contents would not be hearsay).

Statements in a brief, unsupported by the record, cannot be used to create an issue of fact. Barnes v. Indep. Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995). The Ninth Circuit "ha[s] repeatedly held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment." Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (citation and internal quotation marks omitted). Authentication, required by Federal Rule of Evidence 901(a), is not satisfied simply by attaching a document to an affidavit. Id. The affidavit must contain "testimony of a witness with personal knowledge of the facts who attests to the identity and due execution of the document." Id.

B. Standard for Civil Rights Claims

To prevail on a claim under 42 U.S.C. § 1983, the civil rights statute, a plaintiff must show that a violation of his rights protected by the Constitution or created by federal statute occurred, and that it was proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).In Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), the court outlined the requirements for a finding of proximate causation:

Liability under section 1983 arises only upon a showing of personal participation by the defendant. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979). A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under section 1983.

The fact of confinement itself necessarily limits prisoners' retained constitutional rights. See, e.g., Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). The United States Supreme Court established the standard of law governing constitutional claims of inmates in Turner v. Safley, 482 U.S. 78 (1987). There, the Court examined a free speech issue in the context of prison officials prohibiting correspondence between inmates residing at different state institutions, holding that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 89. The Court identified four factors to consider when determining whether a regulation is valid: (1) whether there is a "rational connection between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) whether "there are alternative means of exercising the right that remain open to prison inmates"; (3) what "impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) whether "ready alternatives" exist. Id. at 89-90. Although this deferential analysis applies to most constitutional claims, it does not apply to claims arising under the Eighth Amendment. Johnson v. California, 543 U.S. 499, 511 (2005); Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir. 1993).

Even if a plaintiff is able to show a violation of a constitutional right under § 1983, a defendant may still be entitled to summary judgment on the basis of qualified immunity. The doctrine of qualified immunity protects state officials from personal liability for onthe-job conduct so long as the conduct is objectively reasonable and does not violate an inmate's clearly-established federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Contrarily, a state official may be held personally liable in a § 1983 action if he knew or should have known that he was violating a plaintiff's clearly-established federal rights. Id. True to its dual purposes of protecting state actors who act in good faith and redressing clear wrongs caused by state actors, the qualified immunity standard "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quotation omitted). Qualified immunity is a defense both to constitutional claims and to statutory claims, such as claims under RLUIPA. See Lovelace v. Lee, 472 F.3d 174, 198-99 (9th Cir. 2006).

A qualified immunity analysis consists of two prongs: (1) whether, "[t]aken in the light most favorable to the party asserting the injury,... the facts alleged show the [defendant's] conduct violated a constitutional right"; and (2) whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808 (2009) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). Addressing the two prongs of the test in this order is often beneficial, but it is not mandatory. Courts may "exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 129 S.Ct. at 818.

To determine whether the right was clearly established, a court turns to Supreme Court and Ninth Circuit law existing at the time of the alleged act. Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996). In the absence of binding precedent, the district courts should look to available decisions of other circuits and district courts to ascertain whether the law is clearly established. Id.

The inquiry of whether a right was clearly established "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. For the law to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand" that his conduct violates that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). It is not necessary that the "very action in question has previously been held unlawful," but "in the light of pre-existing law the unlawfulness must be apparent" to the official. Id. "The relevant, dispositive inquiry is whether it would be clear to a reasonable [defendant] that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202 (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).

Application of qualified immunity is appropriate where "the law did not put the [defendant] on notice that his conduct would be clearly unlawful." Id. However, if there is a genuine dispute as to the "facts and circumstances within an officer's knowledge," or "what the officer and claimant did or failed to do," summary judgment is inappropriate. Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993). When a § 1983 defendant makes a properly supported motion for summary judgment based on qualified immunity, the plaintiff has the obligation to produce evidence of his own; the district court cannot simply assume the truth of the challenged factual allegations in the complaint. Butler v. San Diego Dist. Attorney's Office, 370 F.3d 956, 963 (9th Cir. 2004).

C. First Amendment Claims and RLUIPA

Plaintiff asserts First Amendment claims alleging that Defendants Peterson, Taylor, and Blades violated his right to free exercise of his religion and retaliated against him for making a complaint with respect to a religious service. He also asserts claims under RLUIPA.

1. Material Facts

For most of his life, Plaintiff has been a "hard-core Christian, of the Pentecostal denomination." Affidavit of Dennis Mintun (Docket No. 50) ("Mintun Aff.") at ¶15. Plaintiff used to attend a nondenominational Christian fellowship at ISCI and also sang in the choir. This fellowship was organized and run by inmates, and anyone was free to preach, teach, or testify about his beliefs. Id. at ¶16. Plaintiff states that he would repeatedly hear inmates testify that homosexuality is a sin. This occurred at "pretty much every meeting." Id. At one of these meetings, inmate Monte Brandt gave a sermon about the Biblical story of Sodom and Gomorrah, interpreting the story as a parable for God's punishment of sin -- specifically, the sin of homosexuality. Id. at ¶17. According to Plaintiff's beliefs, homosexuality is not a sin. Numerous Christian denominations share this view. Id. at ¶15. When Plaintiff confronted Brandt about the sermon, Brandt asked if Plaintiff was gay. Plaintiff answered that he was. Brandt then told Plaintiff he should "step down" from participating in the fellowship, including the choir. Id. at ¶18.

Plaintiff complained to Defendant Chaplain Petersen about the situation. He alleges Peterson told him, "Monte was in charge, and I stand by what he says." Id. at ¶19. Despite this alleged statement, Petersen and another chaplain, Defendant Taylor, began an investigation into Plaintiff's concerns. Affidavit of Darrell Taylor (Docket No. 29) ("Taylor Aff.") at ¶10. Defendant Taylor reviewed the material that Brandt had used in his sermon. "The commentary was from a mainline Christian publisher and taught to hate the sin of homosexuality, but love the sinner who practiced it." Id. From the information Defendant Taylor received from Plaintiff, he believed that Brandt had "carried the lesson somewhat further" from the material and told Brandt that "his treatment of the subject was inappropriate." Id. at ¶11.

Prior to Taylor's and Petersen's investigation, Plaintiff had been singing in the choir. After Plaintiff's complaint and during the investigation of that complaint, Taylor and Petersen decided to keep Plaintiff out of the choir until they had "all the relevant information." Id. After the investigation was concluded, Defendant Taylor wrote to Plaintiff and told him he was welcome to come back to the choir, as long as he "[went] by the guidelines set up for the music slots." Id.,Exhibit A, p. 3.

Plaintiff states that he was prohibited not only from singing in the choir during the period when the investigation was conducted, but also from speaking or testifying in the fellowship: "I was prohibited from doing anything but sitting there and listening, and with my Pentecostal background, this meant that I was effectively prevented from worshiping as I would have wished." Mintun Aff. at ¶24. He also claims that in spite of Defendant Taylor's written notice that he could return to the choir, Defendant Peterson told him "verbally, and in private, that he would not recommend [Plaintiff's] coming back." Id. at ¶25. Plaintiff's affidavit is unclear as to whether Defendant Petersen told him only that he should not come back to sing in the choir, or that Defendant Petersen told him he should not come back to the interdenominational fellowship or attend services at all. Id.

Plaintiff asked Defendants Petersen and Taylor if he could organize and conduct "a new fellowship meetings [sic] for gay Christians, so that we could worship without continually being told that our sexual orientation is a sin." Id. at ¶21.*fn3 Although Defendant Petersen contends that Plaintiff did not request permission to conduct an alternate service, but instead only to teach a class, see Affidavit of Les Petersen (Docket No. 28-6) ("Petersen Aff.") at ¶8, the Court accepts Plaintiff's version of events for purposes of summary judgment.

Plaintiff states that his request was denied because the proposed alternate service was not an "IDOC approved religion." Mintun Aff. at ¶22. He does not, however, state which Defendant actually denied his request. Id. Thus, it is unclear whether Defendant Petersen or Defendant Taylor made the initial decision on the alternate fellowship, or whether one or both of them simply passed the request up the chain of command to another Defendant. See Petersen Aff. at ¶8. Plaintiff did file a grievance regarding the inability to sing, preach, teach, or testify in the fellowship during Defendants Petersen's and Taylor's investigation, but Plaintiff mentioned his request for an alternate fellowship only as an informal way he had tried to resolve the dispute -- not as an independent complaint. See Initial Complaint (Docket No. 3) at 14, Exhibit 1; Taylor Aff., Exhibit A, p. 1.

Plaintiff alleges that, because of Defendants' actions with respect to the interdenominational fellowship and choir, he never returned to either one. Mintun Aff. at ¶26. His beliefs have become "confused," and he has been attending pagan or Wiccan meetings instead of Christian services "because they are more accepting of homosexual individuals." Id.

2. Free Exercise and RLUIPA Claims

The Free Exercise Clause absolutely protects the right to believe in a religion; it does not absolutely protect all conduct associated with a religion. Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940). Inmates clearly retain their free exercise of religion rights in prison. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Free exercise claims are subject to a Turner analysis. Jones v. N.C. Prisoners' Labor Union, 433 U.S. 119, 125 (1977). The courts, therefore, must balance inmates' First Amendment rights against the legitimate goals of the correctional facility. See Turner, 482 U.S. at 89.

RLUIPA provides that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person... is in furtherance of a compelling governmental interest[] and... is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1(a). The Ninth Circuit has defined a substantial burden on religion as something that is "oppressive to a significantly great extent." Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (internal quotation marks omitted) (citing San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). In determining whether to grant summary judgment on an RLUIPA claim, the Court must consider the extent of the burden on Plaintiff's religious activities, the extent of the burden on the prison in accommodating Plaintiff's desire to worship as he chooses and his request for an alternative service, and the existence of less restrictive alternatives. See Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). Unlike free exercise claims, claims under RLUIPA are not subject to the deferential Turner analysis, and therefore Defendants must meet a "much stricter burden" to be entitled to summary judgment. Greene v. Solano County Jail, 513 F.3d 982, 986 (9th Cir. 2008).

As noted above, some of the facts surrounding Plaintiff's religious claims are unclear. Plaintiff alleges that, during the investigation, he was prohibited from singing in the choir and from preaching, teaching, or testifying during the service. However, it is unclear whether Defendant Petersen told Plaintiff that he should not return solely to the choir, or that Plaintiff should not attend religious services at all. Similarly, there is not enough evidence in the record to show whether any Defendant actually denied Plaintiff's request for an alternate service, and if so, which Defendant. Finally, it is unclear whether Plaintiff used the prison's grievance process to appeal (1) Defendant Petersen's instruction not to return to the choir and/or the fellowship or (2) the decision to deny Plaintiff's request to organize the alternate service.

The Court concludes that there is insufficient evidence at this time to determine whether Defendants are entitled to summary judgment on Plaintiff's free exercise and RLUIPA claims. Therefore, the Court will currently deny the motion for summary judgment without prejudice on these claims and will permit Defendants to supplement the record and move anew for summary judgment (without refiling the previous motion and supporting documents) within 30 days of this Order, if the facts support such a filing at that time.

If Defendants do so, Plaintiff shall supplement the record with admissible evidence, such as a detailed affidavit and concern or grievance forms, setting forth how his First Amendment free exercise rights and his rights under RLUIPA were violated by (1) Defendants Petersen's and Taylor's decision to prohibit Plaintiff from singing, preaching, teaching, or testifying during the investigation period, (2) Defendant Petersen's "recommendation" after the investigation that Plaintiff not return either to just the choir or to the fellowship at all, and (3) the refusal to allow Plaintiff to organize a fellowship for gay Christians. Plaintiff may also wish to address whether any or all of these claims have been exhausted.

3. Retaliation Claim

In addition to his free exercise and RLUIPA claims, Plaintiff also alleges that Defendants Petersen's and Taylor's decision to prohibit Plaintiff from speaking, preaching, teaching, or testifying during the time they investigated Plaintiff's complaint regarding anti-gay comments by other inmates was made in retaliation for that complaint. Mintun Aff. at ¶19-23.

A First Amendment retaliation claim must allege the following: "(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) footnote omitted). A "chilling effect on First Amendment rights" is enough to state an injury. Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001). "Because a prisoner's First Amendment rights are necessarily curtailed, however, a successful retaliation claim requires a finding that 'the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals.'" Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (quoting Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)).

Plaintiff asserts that Defendants Petersen and Taylor had a retaliatory motive for keeping Plaintiff out of the choir and the fellowship during the investigation. Defendants have offered evidence that IDOC policy requires that inmates be separated during an investigation. Affidavit of Timothy Higgins (Docket No. 55-1) ("Higgins Aff.") at ¶20. This makes logical sense: a disagreement between inmates could easily escalate into something more dangerous. Therefore, Defendants have met their burden of showing that the restrictions on Plaintiff's activities advanced the legitimate correctional goal of avoiding potentially violent confrontations between inmates involved in an investigation, such as Plaintiff and Brandt were in this case.

Plaintiff, however, has not pointed to any evidence of a retaliatory motive other than the fact that he was placed on these restrictions "immediately" after he complained about Brandt's and other inmates' anti-gay sentiments. Opposition to Defendants' Motion for Summary Judgment (Docket No. 35) ("Response") at 17. Although the timing of an official's action can be circumstantial evidence of retaliation, there must generally be something more than simple timing to support an inference of retaliatory intent. See Pratt, 65 F.3d at 808. Additionally, although it can be said that Defendants' investigation was undertaken "because of" Plaintiff's complaint about Brandt, Plaintiff has produced nothing that could be construed as evidence of a retaliatory motive for separating him from Brandt. A bare assertion of retaliation is not enough, see Rizzo, 778 at 532 n.4, and accepting Plaintiff's argument would lead to the incongruous result that a plaintiff could state a retaliation claim when the officials actually took action to investigate his complaint. Defendants' motion will be granted on the retaliation claim.

D. Equal Protection Claims

Plaintiff alleges equal protection violations against Defendants Petersen, Taylor, Bassford, Wren, Jorgenson, Knapp, and Blades, claiming that he has been ...


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