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Olson v. Wengler

United States District Court, Ninth Circuit

January 27, 2014

LARRY OLSON, Plaintiffs,


RONALD E. BUSH, Magistrate Judge.

Pending before the Court are Plaintiff's Motion to Compel Discovery (Dkt. 17), Plaintiff's Motion for Appointment of Counsel (Dkt. 18), and Defendants' Motion for Summary Judgment (Dkt. 20). All parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 28.) See 28 U.S.C. ยง 636(c) and Fed.R.Civ.P. 73.

Having reviewed the record, the Court finds that the decisional process would not be aided by oral argument. Accordingly, after due consideration, the Court enters the following Order granting Defendant's Motion for Summary Judgment and denying Plaintiff's Motion to Compel Discovery and Plaintiff's Motion for Appointment of Counsel.


1. Standard of Law

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...." 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no genuine dispute as to any material fact. Material facts are those "that might affect the outcome of the suit." Id. at 248. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

The moving party is entitled to summary judgment if that party shows that each material fact cannot be disputed. To show that the material facts are not in dispute, a party may cite to particular parts of materials in the record, or show that the adverse party is unable to 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 responsibility, then the burden shifts to the opposing party to establish that a genuine dispute as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 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]." Liberty Lobby, 477 U.S. at 252.

Material used to support or dispute a fact must be "presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2). Affidavits or declarations submitted in support of or in opposition to a motion "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). 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).

The Court does not determine the credibility of affiants or weigh the evidence of the non-moving party. Although all reasonable inferences which can be drawn from the evidence must be drawn in a light most favorable to the non-moving party, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

The required elements of a retaliation claim are 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, ... 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). Although a "chilling effect on First Amendment rights" is enough to state an injury, Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), "bare allegations of arbitrary retaliation" are insufficient to be permitted to go forward on a retaliation claim, Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985).

Particularly at issue in this case is whether Plaintiff has brought forward sufficient evidence to show that the alleged retaliatory action did not advance legitimate penological goals, such as the preservation of institutional order, discipline, security, and rehabilitation of prisoners. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam); Rizzo, 778 F.2d at 532. Federal courts "should afford appropriate deference and flexibility' to prison officials [when evaluating the] 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, 115 S.Ct. 2293, 2299 (1995)). "Specifically, the prison administrators cannot be held liable unless their retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Vance v. Barrett, 345 F.3d 1083, 1093 (9th Cir. 2003).

While "timing can be properly considered as circumstantial evidence of retaliatory intent, " there generally must be something more than timing alone to support an inference of retaliatory intent. Pratt, 65 F.3d at 808. Retaliation is not established simply by showing adverse activity by defendant after protected speech; plaintiff must show a nexus between the two. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (a retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, i.e., "after this, therefore because of this").

2. Undisputed Material Facts

This section includes facts that are undisputed and material to the resolution of the issues in this case. Where material facts are in dispute, the Court has included Plaintiff's version of facts, insofar as that version is not contradicted by clear documentary evidence in the record.

At the time of the incidents alleged in the Complaint, Plaintiff was an inmate in the custody of the Idaho Department of Correction (IDOC), housed in the private prison operated by Corrections Corporation of America (CCA) under contract to the IDOC. He brings First Amendment retaliation claims against three CCA officials: Warden Tim Wengler, Assistant Warden Tom Kessler, and Correctional Officer Brian Titsworth. The allegations center on Plaintiff's placement and retention in segregation from October 6, 2011, to October 28, 2011.

On June 29, 2011, Plaintiff filed a grievance against Defendant Correctional Officer Brian Titsworth, asserting "abuse of discretionary powers & unprofessional conduct." (Dkt. 25-4, p. 10.) Plaintiff complained that Titsworth forced inmates to use alternative electrical outlets and store all their property in their cubicles. Plaintiff complained: "When asked about this UM Titsworth rudely threatened by telling me and others "If you don't like it I'll move you to North Wing." ( Id. ) The grievance was denied by Bryan Johnson on June 30, 2011, stating that all property must be stored in a safe and orderly manner in assigned storage boxes or lockers in inmates' cells, and property cannot be maintained so as to create a fire hazard or sanitation, security, or housekeeping problems.

Plaintiff also alleges that he complained to Warden Wengler of a large number of conditions-of-confinement violations. (Dkt 25-4, p. 5.) Plaintiff further alleges that, at unspecified times, he provided investigators with important information about prison violence in Kelly v. Wengler, Case No. 1:11-cv-00185-EJL, that aided the inmates' case against prison officials. Kelly was a class action inmate lawsuit wherein the plaintiffs alleged that CCA prison officials did not do enough to protect inmates from violent attacks by other inmates. Plaintiff alleges that the Kelly case settled on September 20, 2011, and that Warden ...

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