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Lance Conway Wood v. Keith Yordy

March 30, 2012

LANCE CONWAY WOOD, PLAINTIFFS,
v.
KEITH YORDY, STEVE NELSON, MIKE LUDLOW, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

MEMORANDUM DECISION AND ORDER

Defendants' Motion for Summary Judgment, which was originally filed nearly two years ago, on May 3, 2010 (Dkt. 78), was renewed by Defendants on January 23, 2012. (Dkt. 94.) Plaintiff Lance Wood (Wood) earlier filed a Response (Dkt. 82) to the original motion, and Defendants filed a Reply. (Dkt. 83.) The Court resolved a discovery dispute after the Motion for Summary Judgment, and permitted the parties to renew their summary judgment motions or file any supplemental briefing on the newly-disclosed discovery items.(Dkt. 92.) Wood filed a Motion for Extension of Time, requesting through February 28, 2012 to file his Response. While the Court will grant that Motion, Wood failed to file a Response by that date, and Wood's Motion for Clarification, asking what should be contained in the Response, will be denied as moot, because Wood failed to file anything by the February 28, 2012 requested extension date. Further, additional briefing is unnecessary.

Defendants filed a Supplemental Notice of Compliance on February 27, 2012, stating that they had found a videorecording of the Mike Ludlow polygraph examination, and providing that to the Court in camera. (Dkt. 98.) The Court agrees that, because the videorecording contains personal information of a prison employee, it will not be provided to Wood. In addition, the polygraph does not contain anything material to the narrow issues at hand. The polygraph interview addresses the question of whether Correctional Officer Ludlow sent an e-mail to a female correctional officer to help Wood contact her or find out information about her, but whether or not Ludlow did send the e-mail is not material to the Court's decision. Neither has the outcome of the polygraph been considered by the Court.

Accordingly, the Court considers the Renewed Motion for Summary Judgment fully briefed. Having fully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding delay, the Court will 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.

PLAINTIFF'S CLAIMS

Wood's six remaining claims are (1) Eighth Amendment calculated harassment, (2) First Amendment free exercise of religion, (3) RLUIPA, (4) Fourteenth Amendment equal protection, (5) First Amendment retaliation, and (6) First/Fourteenth Amendment access to courts. Four factual circumstances underlie Wood's six remaining claims:

1. Defendants Keith Yordy and Steve Nelson issued a written memorandum to Wood on May 11, 2006, Defendants temporarily suspended Wood from his work assignments in the prison chapel and in the Life Transitions Program due to the staff investigation of Chaplain Les Petersen;*fn1

2. Defendant Yordy issued a May18, 2006 memorandum attempting to clarify that the May 11, 2006 memorandum did not bar Wood from attending religious services, but rather only temporarily suspended him from work assignments;

3. Defendant Keith Yordy, Defendant Steve Nelson, and Chaplain Cosmo Zimik issue a third memorandum of February 1, 2007, to Wood, allegedly barring Wood from practicing his religion for six months (Dkt. 57-2, pp. 5-6);

4. On February 24, 2007, Defendant Ludlow set up Wood and retaliated against him by planting a Kleenex containing prescription medication in a windowsill and then wrongfully attributing that to Wood and charging him with a Disciplinary Offense Report. (Dkt. 77, p. 10.)

STANDARD OF LAW GOVERNING

SUMMARY JUDGMENT

Summary judgment is appropriate where a party can show that, as to any claim or defense, "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). One of the principal purposes of the summary judgment rule "is to isolate and dispose of factually unsupported claims or defenses." 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 "that might affect the outcome of the suit." Id. at 248.

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 may "cit[e] to particular parts of materials in the record," show that "the materials cited do not establish the . . . presence of a genuine dispute, or show that the "adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A) & (B). The Court must consider "the cited materials," but it may also consider "other materials in the record." Fed. R. Civ. P. 56(c)(3).

If the moving party meets its initial burden, the burden shifts to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. Anderson, 477 U.S.at 256-57. The non-moving party must go beyond the pleadings and show "by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324 (internal quotation marks omitted).

The Court does not determine the credibility of affiants or weigh the evidence set forth by the non-moving party. 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 existence of a scintilla of evidence in support of the non-moving party's position is insufficient. Rather, "there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson , 477 U.S. at 252. If a party "fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the Court may consider that fact to be undisputed. Fed. R. Civ. P. 56(e)(2). The Court may grant summary judgment for the moving party "if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(3) . Moreover, the Court may enter summary judgment in favor of a non-moving party, provided the other party is given "notice and a reasonable time to respond." Fed. R. Civ. P. 56(f).

BACKGROUND

This lawsuit and the related lawsuit that preceded it, Wood v. Beauclair, Director of Prisons, et al., 3:04-cv-00099-WBS,*fn2 arise from allegations that numerous Idaho Department of Correction (IDOC) staff members have disregarded prison policies and formed a personal relationship with an inmate, Plaintiff Lance Wood. Such prohibited personal relationships breed inmate-staff problems, inmate-inmate problems, staff-staff problems, and staff-management problems. Such relationships also compromise prison security. However, as disappointing to the public trust as these personal relationships might be, the Constitution generally is not concerned with such issues.

Rather, the Constitution is concerned with protecting the civil rights of individuals, including inmates incarcerated by the State, who are no longer free to choose their circumstances. The Constitution requires that living conditions at the prisons be humane and safe. However, the United States Supreme Court has reiterated that the Eighth Amendment's Cruel and Unusual Punishment Clause should be reserved for "sufficiently serious"*fn3 incidents causing "unnecessary and wanton infliction of pain," where such pain has been inflicted by prison officials' "deliberate indifference to the inmates' health or safety." Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (internal citations and punctuation omitted). Further, in McKune v. Lile, 536 U.S. 24, 41 (2002), the United States Supreme Court observed that, in determining whether a constitutional claim lies, "[c]courts must decide whether the [facts] are closer to the physical torture against which the Constitution clearly protects or the de minimis harms against which it does not."

Inmates have limited free speech and free exercise of religion rights. See Aiken v. Nixon, 236 F.Supp.2d 211, 233 (N.D.N.Y. 2002) (observing that institutionalized persons do not "check their constitutional rights at the door."). Challenges to prison restrictions that are alleged "to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law." Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 125 (1977) (citation omitted).

With these principles in mind, the Court reviews the chronological background of this case, because each of the four remaining incidents complained of occurred within a larger context that is relevant to the balancing of Wood's interests with prison interests. This chronology includes facts that are undisputed and material to the resolution of the issues in this case, as well as undisputed facts that are important to the background, but immaterial to the narrow issues in the determination of summary judgment. Some of the facts included are "allegations," meaning that the underlying fact is not necessarily true and may be disputed, but that the allegation itself actually was made and played a role in the actions of those involved.

July 31, 2003 While housed at the Idaho Correctional Center - Orofino (ICIO),Wood alleged he had a romantic relationship with Correctional Officer Sandra Taylor-Martin. Wood reported to prison officials that, when he informed her that he wished to discontinue the relationship, she began to harass and abuse him. As a result of the report, Wood was transferred to Idaho State Correctional Institution (ISCI). (Defendants' In Camera Exhibits A0001.pdf.) 2003 Deputy Warden Keith Yordy completed an investigation on the allegations that Wood was having a suspected inappropriate relationship with Officer Sandra Taylor-Martin. The investigation concluded that the allegations were unsubstantiated. (Defendants' In Camera Exhibits B0001.pdf.) During the course of the investigation, Inmate A*fn4 alleged that Wood was "out to get" Officer Taylor-Martin. (Defendants' In Camera Exhibits A0001.pdf.)

During the investigation into Sandra Taylor-Martin and Wood, Yordy became aware that there was a possible inappropriate relationship between Officer Cheryl Davis and Wood at ICIO. Officer Davis received a letter of reprimand for the boundary issues identified in the investigation, but Davis never admitted to the alleged relationship. (Defendants' In Camera Exhibits B0001.pdf.) Feb. 27, 2004 Wood filed a civil rights lawsuit against Officer Taylor-Martin and other IDOC officials, including Keith Yordy, a defendant in the instant case, as well. During the course of this case, Wood admitted in deposition that "there was a fine line between officers and inmate relationships," and that he had "been across those lines before." (Case No. 3:04-cv-00099-WBS, Dkt. 279-6, Wood Depo. I, p. 14.)

This statement referred to a past relationship with prison employee Susan Isaac, a kitchen supervisor at Idaho Maximum Security Institution (IMSI).When the relationship was discovered, Wood was transferred to ICIO, where he met Officers Taylor-Martin and Davis. (Id., p. 28.) Wood also stated in deposition: "[H]ow we used to get our messages back and forth to each other were through pens. I would give one to an inmate and say, "Hey, give this to Taylor, she dropped it," or something vice versa, and that's how we got our messages back." (Id., p. 144.) (Wood's civil rights case continued through March 18, 2010, when a jury rendered a verdict in favor of Defendants.) See Wood v. Martin et al., Case No. 3:04-cv-00099-WBS (Dkts. 4, 362.) The case is on appeal. 1998-2006 Les Petersen was the Religious Activities Coordinator and a chaplain at the Idaho State Correctional Institution (ISCI) and Wood's supervisor in Wood's paid position as chapel janitor or librarian. Petersen had worked for the IDOC for 8 1/2 years at the time of the incidents that underlie this lawsuit. (Defendants' In Camera Exhibits B0001.pdf.)

July 2005-2006 Correctional Officer Mike Ludlow worked at a security post in the Medical Unit where Wood came to pill call and where Wood worked as a Life Transition Program volunteer. He had been employed for about nine months and had just finished his employee probationary period when he was investigated for inappropriate interactions with Wood and Cheryl Davis (explained below). (Defendants' In Camera Exhibits B0001.pdf.) 2005 - 2006 Wood worked with Chaplain Petersen in the chapel for about a year, the first six months as a volunteer and the next six months as a paid janitor and librarian. Petersen had personal conversations with Wood about once a week. (Defendants' In Camera Exhibits B0001.pdf.) Petersen said Wood told him (1) Officer Cheryl Davis was meant to be his wife in eternity, according to his LDS beliefs, and that (2) Wood and Davis were "intimate" but had not had sex while Wood was housed in Orofino. (Defendants' In Camera Exhibits B0001.pdf.)

March 16, 2006, Les Petersen sent a first email to Officer Cheryl Davis. (Defendants'

In Camera Exhibits B0001.pdf.)

March 20, 2006 Les Petersen sent a second email to Davis. (Defendants' In Camera Exhibits B0001.pdf.)

March 22, 2006 Les Petersen sent a third email to Davis. (Defendants' In Camera Exhibits B0001.pdf.)

March 25, 2006 Wood was awakened in his cell at midnight by Tim Higgins, a prison investigator, who was specifically looking for evidence of a relationship with Cheryl Davis, at the request of Keith Yordy. Higgins found nothing, apologized to Wood, and informed him that nothing was confiscated. (Defendants' In Camera Exhibits B0001.pdf.)

April 2, 2006 Wood is interviewed by Lieutenant Eugene Clark. Wood said he did not ask Chaplain Petersen to contact Davis. It was noted in the investigation that "Wood was baffled about the questioning and wanted to know if religious coordinators were supposed to keep conversations private." Wood stated that he was not obsessed with Officer Davis but was platonically attracted to her. He admitted discussing with Petersen the topics of marriage to Davis and his relationship with Davis. (Defendants' In Camera Exhibits B0001.pdf.)

April 3, 2006 Lieutenant Eugene Clark prepared an Investigation Report concerning the allegation of "Mr. Petersen's inappropriate conduct, by his involvement in a situation between an offender and another IDOC staff member." (Defendants' In Camera Exhibits B0001.pdf.) Petersen said that, on his own volition, he called and emailed Davis to determine if anything was going on between Wood and Davis, but Davis was upset by the contacts and answered "yes" when Petersen asked if she wanted him to steer Wood away from the feelings he had for her. Petersen said he had been in similar situations with inmates and was just trying to figure out if there was a way to help Wood be focused on his spirituality, rather than a woman. (Defendants' In Camera Exhibits B0001.pdf.)

Petersen said that when new offenders come into the chapel, he has a tendency to hear them out, because it draws them closer to chapel ideals. He said that even though this part turned out sour, he otherwise saw a lot of growth in Wood. (Defendants' In Camera Exhibits B0001.pdf.)

April 14, 2006 An e-mail from Correctional Officer Mike Ludlow's IDOC computer email account was sent to Officer Cheryl Davis at 7:25 a.m. The email stated: "why is Davis . .going". (Defendants' In Camera Exhibits B0001.pdf.)

May 2 & 8, 2006 Supervisory prison staff generate correspondence stating a belief that an additional investigation is necessary and directing additional investigation to be completed. (Defendants' In Camera Exhibits B0001.pdf.)

May 11, 2006 Defendants Keith Yordy had Lieutenant Higgins issue a written memorandum to Wood, temporarily suspending Wood from his work assignments in the prison chapel and in the Life Transitions Program due to the staff investigation of Chaplain Les Petersen. (Dkt. 78-5, Yordy Aff., ¶¶ 4-5.)

May 15, 2006 Several internal e-mails discussing Inmate B's letter to Les Petersen are sent. Prison staff are concerned that Inmate B's letter called Petersen by his first name, and that Inmate B had information about problems involving Petersen, Cosmo Zimik (another chaplain), and a chapel volunteer. This was information Inmate B would not have known unless one of the chapel staff had discussed it with him. The conclusion was, "I believe this type of behavior ties in with Les' other issues we are looking into." (Defendants' In Camera Exhibits B0001.pdf.)

May 15, 2006 Wood files an Offender Concern Form to Deputy Warden Yordy stating that the two had discussed lifting the restriction so that Wood could attend church on Sunday from 2:00 to 4:00 p.m. and on Tuesday, from 6:00 to 9:00 p.m. The response of May 19, 2006, was, "I issued a memo yesterday." (Dkt. 82-7, p. 4.)

May 18, 2006 Defendant Yordy issues a second memorandum to Wood: "Until further notice you are approved access to the chapel at ISCI to attend religious services on Thursday nights from 7 to 9 p.m. and Sunday afternoons from 2 to 4 p.m. Other than these times, you are not to volunteer, work or otherwise be present in the chapel. If you wish to participate in religious services outside of these times, you will need to make your request through my office." (Dkt. 82-7, p. 6.)

May 23, 2006 Wood files an Offender Concern Form to "Chaplain Cosmo/Yordy," asking to be approved for Tuesday night services when he was scheduled to preach. Yordy responds the same day, "You may attend the Tuesday night service instead of the Thursday service." (Dkt. 82-7, p. 5.)

May 23, 2006 Polygraph examination of Les Petersen is conducted. His polygraph test was interpreted as "deception indicated" when asked about whether he had contacted Cheryl Davis at the request of Wood. When asked if Wood pushed him to contact Davis, Petersen replied, "if he did, it was subtle." (Defendants' In Camera Exhibits B0001.pdf.)

May 24, 2006 Lieutenant Tim Higgins prepared an Investigation Report

Addendum. (Defendants' In Camera Exhibits B0001.pdf.)

During the investigation, Inmate C told Higgins that Wood told Inmate C that Officer Sandra Taylor-Martin and Officer Cheryl Davis were both in love with Wood, and that Wood said he planned to get all kinds of money from the state for these relationships. Inmate C said it was a big scam and he could prove it. (Defendants' In Camera Exhibits B0001.pdf.)

May 24, 2006 Wood prepared an Offender Concern Form, stating that he was refused entrance to, and escorted away from, the chapel on this date, causing him embarrassment and emotional distress. Correctional Officer Auwen told Wood that he could not go into the chapel for any reason, including church services. Wood also states that, even though he was ordered not to have any contact with Officer Ludlow, he finds that Ludlow has direct contact with him four or five nights a week. Lieutenant Higgins responded by stating: "Temporarily suspending you from duty with pay was done in order to protect the integrity of an ongoing staff investigation. It was not punitive nor retaliatory in nature. This restriction will be lifted as soon as possible. I apologize for any inconvenience this may have caused." (Dkt. 82-8.)

June 26, 2006 Officer Ludlow took a polygraph examination. Ludlow denied having sent the email and declared under oath that he was not reprimanded after the investigation. However, the investigation raised questions about whether Ludlow had done so to help Wood. Ludlow repeatedly denied helping Wood collect information about Davis. (Defendants' In Camera Exhibits B0001.pdf.)

July 25, 2006 The internal investigation of Les Petersen is concluded, and formal letter of reprimand issued to Petersen. early 2007 Les Petersen and Cosmo Zimik were working as chaplains in the ISCI chapel. They had frequent disagreements that were known to Wood. (Nelson Affidavit, Dkt. 78-3, ¶ 2; Complaint, Dkt. 82-23, ¶ ¶ 145-49.) Wood alleges that Defendant Petersen asked Wood to implicate Mr. Zimik in a wrong act, and that Petersen said Zimik "wasn't a man of God, that he was a demon, and that [Petersen] had enough to bring down [Zimik's] evil empire if he wasn't careful." (Complaint, Dkt. 82-23, ¶ 152.) In addition, during the same time period, Deputy Warden of Operations Nelson's inquiry into the incident revealed: (1) Wood was involved in the conflict between Petersen and Zimik; (2) Petersen had been reprimanded for contacting Davis, with whom Wood claimed to be having a relationship; (3) other inmates had complained that Wood was attempting to involve them in the problems between Petersen and Zimik; and (4) other inmates reported that Wood was monopolizing and attempting to control chapel programs and had "free reign" in the chapel. (Nelson Aff., Dkt. 78-3, ¶ 2.)

Feb. 1, 2007 Steve Nelson directed Chaplain Cosmo Zimik to issue a third memorandum of February 1, 2007, to Wood: "This is with reference to Inmate Wood, #31919, that per D.W. Steve Nelson, he is allowed to come to Chapel only on Saturday from 0900 - 1100 hrs. to get spiritual counseling with Chaplain and or Christian clergy starting immediately for 6 months unless otherwise changes suggested from D.W. Nelson." (Dkt. 82-10, p. 2.)

Feb. 2, 2007 Wood prepared an Offender Concern Form complaining about the new restrictions. Nelson replied: "We operate the chapel program that contains multiple components to meet the spiritual and social needs of inmates. Creating two chapels based on the inmate's preference, personality conflicts, observed inmate behavior, etc., in a manner that divides staff is not acceptable. This will allow the opportunity for more animosity and divisiveness in the program which is contrary to the purpose of the chapel program. Allowing you to meet with Cosmo Zimik individually assists in fulfilling your spiritual needs without the risk ...


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