Petition for Writ of Certiorari — Jess Richard Smith, Petitioner v. Sgt. Ellis, et al.

Supreme Court briefDec 8, 2022

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

OCT 7 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JESS RICHARD SMITH

Petitioner-Appellant,

No.

22-35352

D.C. No. 3:18-cv-05427-TL

Western District of Washington,

Tacoma

ORDER

ELLIS; et al.,

Defendants-Appellees.

In light of the July 12, 2022 order granting the motion to revoke appellant’s

in forma pauperis status, the motion to stay appellate proceedings pending

resolution of the motion to revoke (Docket Entry No. 11) is denied as moot.

Appellant’s motion for an extension of time to respond to the court’s July

12, 2022 order (Docket Entry No. 13) is granted.

Within 21 days after the date of this order, appellant shall pay the remaining

balance of the $505.00 that appellant has not already paid to the district court as

the docketing and filing fees for this appeal and file proof of payment with this

court. Failure to pay the fees will result in the automatic dismissal of the appeal by

the Clerk for failure to prosecute, regardless of further filings. See 9th Cir. R. 421.

The court’s July 12, 2022 order stated that “[n]o motions for reconsideration,

clarification, or modification of the revocation of appellant’s in forma pauperis

LAB/MOATT

status shall be entertained.” Accordingly, the court declines to entertain

appellant’s motion for reconsideration of the July 12, 2022 order (Docket Entry

No. 14). See 9th Cir. Gen. Ord. 6.11.

If the appeal is dismissed for failure to comply with this order, the court will

not entertain any motion to reinstate the appeal that is not accompanied by proof of

payment of the docketing and filing fees.

Briefing remains suspended pending further order of this court

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Lior A. Brinn

Deputy Clerk

Ninth Circuit Rule 27-7

LAB/MOATT

Case: 22-35352,11/30/2022, ID: 12599430, DktEntry: 16, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

NOV 30 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JESS RICHARD SMITH,

Petitioner - Appellant,

No. 22-35352

D.C.No. 3:18-cv-05427-TL

U.S. District Court for Western

Washington, Tacoma

SGT. ELLIS; et al.,

ORDER

Defendants - Appellees.

A review of the docket demonstrates that appellant has failed to respond to

the October 7, 2022 order of this court.

Pursuant to Ninth Circuit Rule 42-1, this appeal is dismissed for failure to

prosecute.

This order served on the district court shall, 21 days after the date of the

order, act as the mandate of this court.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Tina S. Price

Deputy Clerk

Ninth Circuit Rule 27-7

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page lot 49

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JESS RICHARD SMITH,

Plaintiff,

No. 3:18-CV-5427-RAJ-TLF

REPORT AND RECOMMENDATION

SGT. ELLIS, etal.

Noted for: March 12, 2021

Defendants.

This is a civil rights action brought under 42 U.S.C. § 1983. Plaintiff Jess Richard

Smith, who is proceeding pro se and in forma pauperis, was incarcerated at the Stafford

Creek Corrections Center (SCCC) at the time of the alleged incident and is currently an

inmate at Coyote Ridge Corrections Center (CRCC). Dkt. 5. Plaintiff and Defendants

have moved for summary judgment. Dkts. 44, 48.

The Court, having reviewed Plaintiffs complaint, each parties’ motions for

summary judgment, and all related briefing, concludes that Plaintiffs motion for

summary judgment (Dkt. 48) should be DENIED in its entirety and Defendants’ motion

for summary judgment (Dkt. 44) should be GRANTED.

PROCEDURAL HISTORY

Plaintiffs original complaint named nine defendants: Thomas L’Heureux; Sgt.

Ellis; Michael Wayman; M. Brandt; J. Amsbury; D. Dahne; K. McTarsney; CUS Jones;

and CO McGinnis. Dkt. 5. The claims against defendants L’Heureux, Wayman, Brandt

REPORT AND RECOMMENDATION- 1

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Amsbury, Dahne, McTarsney, and McGinnis were previously dismissed. Dkts. 20-27.

The only remaining claims in this action are against SCCC Correctional Unit Supervisor

Greg Jones and Former SCCC Correctional Sergeant Cory Ellis. Dkt. 27.

Plaintiff alleges his constitutional rights were violated when Defendants Ellis and

Jones approached his cell on February 27, 2016, after hearing him yell religious praise;

they questioned him about drug use and escorted him to the medical unit for urinalysis.

Dkt. 5, at 11-12. He claims his rights were further violated when Defendant Ellis

subsequently searched his cell, confiscated and then later destroyed his personal Bible

which he claims was embedded with family photos as well as personal prayers and

hymns Plaintiff had written into the Bible. Id.

Plaintiff claims Defendant Jones also violated his rights by holding him in a

suicide cell for more than 48 hours on February 27, 2016, in retaliation for filing

grievances. Id., at 34-36. He alleges Defendant Jones violated his rights on April 27,

2016, by “threatening” Plaintiff to drop his grievance of religious retaliation in exchange

for Defendant Jones telling his officers to “leave [Plaintiff] alone.” Id. He also claims

Defendant Jones “conspired” with previously dismissed defendant Michael Wayman

and an inmate Charles Bell to infract Plaintiff for a later interaction he had with inmate

Bell in retaliation for pursuing grievances. Id.

Plaintiff alleges Defendant Jones’ actions violated his rights to: (1) freedom of

speech; (2) free exercise of religion; (3) freedom from retaliation; (4) due process; (5)

access to courts; and (6) freedom from cruel and unusual punishment. Dkt. 5. Plaintiff

alleges Defendant Ellis’ actions violated his rights to: (1) freedom of speech; (2) free

REPORT AND RECOMMENDATION- 2

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exercise of religion; (3) freedom from retaliation; (4) due process; and (5) the Religious

Land Use and Institutionalized Persons Act (RLUIPA). Id.

Plaintiff brings his claims against the Defendants in their individual capacities

only. Id., at 9. As relief, Plaintiff seeks seven million dollars in damages against

defendants Jones and Ellis. Id., at 52.

On May 29, 2020, Defendants filed a motion for summary judgment seeking

dismissal of Plaintiffs claims, together with supporting declarations of Corry Ellis and

Gregory Jones, and a Rand notice to Plaintiff. Dkts. 44, 45, 46, 47. On June 2, 2020

Plaintiff filed a separate motion for summary judgment. Dkt. 48. On June 10, 2020,

Plaintiff filed a response to Defendants’ motion for summary judgment in which he

concedes Defendants are entitled to summary judgment on all claims against Defendant

Jones. Dkt. 49, at 1. On June 19, 2020, Defendants filed a combined response to

Plaintiffs motion for summary judgment and reply in support of their motion for

summary judgment. Dkt. 50.

On November 12, 2020, the Court issued an order requesting supplemental

briefing limited to two legal issues related to the destruction of Plaintiffs personal Bible.

Dkt. 52. Plaintiff filed a response to the Court’s Order on December 1,2020. Dkt. 53.

Defendants filed a supplemental brief and the Declaration of Salina Brown on

REPORT AND RECOMMENDATION- 3

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December 2, 2020. Dkt. 55. Plaintiff filed a response to Defendants’ submission on

December 29, 2020. Dkt. 56.1 Defendants replied on January 8, 2021. Dkt. 57.

FACTS

Plaintiff was housed at the Stafford Creek Corrections Center (SCCC) at all times

relevant to this action. Dkt. 5. On February 29, 2016, at around 4:30 p.m., Plaintiff states

he yelled “Glory to God and Amen” for a “perceived miracle” after learning a relative had

recovered and been taken off life support. Dkt. 5, at 11. Shortly thereafter, Plaintiff

alleges, Defendant Ellis and Defendant Jones approached Plaintiff asking if he was all

right, and whether he was on drugs. Dkt. 5, at 12, 61.

According to Defendant Ellis’s declaration, he was familiar with Plaintiffs

baseline behavior as someone who was “well spoken” and “fluid in his words.” Dkt. 45

at 2. On the date in question, Defendant Ellis states he approached Plaintiff after he

was “walking around the correctional unit screaming ... something religious in nature.”

Id. at 3. Defendant Ellis states that yelling is not allowed per unit rules and that yelling

was out of the ordinary for Plaintiff. Id.

When Plaintiff told Defendant Ellis “he was not under the influence but was

praising God,” Defendant Ellis claims he told Plaintiff “he was allowed to praise God but

he could not be so loud and disruptive by yelling in the manner he was.” Id. Defendant

Ellis states that Plaintiffs “eyes were dilated” at the time of the incident and he “was

Plaintiffs response included a request to strike two statements in Defendants’ supplemental brief that referred to

the Bible’s utilization for drug use. Dkt. 56 at 2. The Court declines to strike these statements, but has considered

only the underlying evidence and declarations, and not any additional characterization of them by the parties.

REPORT AND RECOMMENDATION- 4

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having a hard time responding to my questions.” Id. He further states he noted Plaintiffs

behavior was off baseline in that he spoke “very fast and appeared jittery and was not

standing still.” Id. Defendant Ellis states that:

Correctional staff are trained to be aware of their

surroundings to ensure the safety and security of the prison

facility. One major way that they do so is to become familiar

with the incarcerated individuals and be aware when

individuals are off their baseline. This could indicate that the

individual is under stress, experiencing mental health issues,

or is under the influence. When someone is off their

baseline, correctional officers take note because it means

that the individual may be unpredictable and volatile, making

the facility or that individual unsafe. When I see someone off

their baseline, I check on them to see whether they are okay

and attempt to dialogue to better assess the situation. After a

brief visual and verbal assessment of the individual is

completed it can be determined what need an individual may

have. An individual who is under the influence or

experiencing a medical or mental health issue that goes

untreated or unaddressed creates significant safety and

medical concerns for the individual as well as the facility.

Dkt. 45, at 2-3. Defendant Ellis asserts that, based upon Plaintiffs off-baseline behavior

he believed Plaintiff was under the influence of drugs. Id., at 3-4. He states that at the

time there had been an increase in the introduction of spice, or synthetic marijuana, into

the prison and that he was also aware Plaintiff associated with other inmates who were

known for drug activity. Id.

After Plaintiff denied he was on drugs, Defendant Ellis states he contacted the

Lieutenant regarding his observations about Plaintiffs behavior and the Lieutenant

authorized and initiated the drug testing procedure pursuant to Department Policy

420.380(V)(C)(1). Dkt. 45, at 2. That policy states in relevant part: “Direct observation

REPORT AND RECOMMENDATION- 5

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by an employee/contract staff or reliable source provides reasonable suspicion that an

offender has used, possessed, or possesses a drug or alcohol.” Id. Plaintiff was then

escorted to the SCCC medical for urinalysis. Dkt. 5, at 12. Defendant Ellis states in his

declaration that drug testing is an important management tool because it acts as a

deterrent to drug use in the correctional facility. Dkt. 45, at 4. Plaintiff claims the results

of the urinalysis were negative for drugs. Dkt. 5, at 12. Defendant Ellis states that he

does not have access to the results of the urinalysis but that in his experience, a

negative urinalysis result is not entirely uncommon when an individual has used spice

because it is a synthetic substance. Id.

Defendant Jones also submits a declaration in which he states that he does not

recall being involved in approaching Plaintiffs cell or taking him for urinalysis on

February 29, 2016. Dkt. 46, at 3. However, he states that staff approaching an

incarcerated individual who they believe is under the influence would be an appropriate

response as would be escorting that individual to medical for a urinalysis. Id.

While Plaintiff was at SCCC medical, Defendant Ellis states he assisted in

searching Plaintiffs unit. Id. Defendant Ellis indicates he confiscated several items,

including a: (1) broken lamp, (2) power cord, (3) altered bible, (4) altered cassette tape

and (5) altered surge protector. Dkt. 45-1. Defendant Ellis asserts that the altered Bible,

surge protector, and cords were confiscated based on the suspicion that they were

being used together for drug-use related “arching”, an action used to “light something on

fire without a match or lighter.” Dkt. 45, at 5.

REPORT AND RECOMMENDATION- 6

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Defendant Ellis asserts that the altered Bible had a large number, maybe even

hundreds, of pages torn out. Id. He states in his experience, Bible pages are frequently

used as rolling paper for smoking purposes due to the texture and composition of the

paper. Id. at 6. He also indicates the “power devices had black soot on them and areas

where they were melted.” Id., at 5. He states, based upon his findings, he strongly

believed Plaintiff was using the Bible pages as rolling papers to smoke and the altered

surge protector and cords to light something on fire. Id. at 6. Defendant Ellis also

asserts that “altered property from its original form is not allowed [under Department

policy] as it creates safety issues as well as contraband use and/or concealment and

allows for the potential of trading among the incarcerated population.” Id. at 5-6.

Defendant Ellis indicates he filled out a search report related to his search of

Plaintiffs cell. Dkt. 45, at 5; Dkts. 45-1,45-2. The search report is dated February 29,

2016 and contains a section for the “disposition” of the items. Id. According to

Defendant Ellis, the notations on the search report reflect that Plaintiffs broken lamp

was designated to be sent out (“send out”) at Plaintiffs request and a JP4 digital player

was returned to Plaintiff (“RTO”). Id. The search report reflects that the altered Bible,

power cord, and power strips were placed in evidence lockers pending investigation

(“evid.”) and then designated to be “hot trashed.” Dkts. 45-1,45-2.

On March 2, 2016, Plaintiff submitted grievance (No. 16605680) requesting

return of his personal Bible. Dkt. 46-1, at 2. The Grievance Coordinator, Kerri S.

McTarsney (GC McTarsney), responded on March 7, 2016, stating, “I understand you

have all of your property and CUS Jones stated he will ensure you get another Bible.”

REPORT AND RECOMMENDATION- 7

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Dkt. 46-1; Dkt. 5, at 61. During the time relevant to Plaintiffs claims, Defendant Gregory

Jones was the Correctional Unit Supervisor of the H1 Living Unit at SCCC. Dkt. 46, at 4.

In his declaration, in support of Defendants’ motion for summary judgment Defendant

Jones states that he worked with the facility Chaplain to provide Plaintiff a replacement

Bible. Id. He indicates he spoke with Plaintiff multiple times about whether he would

accept a replacement Bible, that Plaintiff agreed, and a replacement Bible was

provided. Id:, Dkt. 46-2, at 2.

Plaintiff claims that on March 15, 2016, Defendant Ellis disposed of his Bible and

other property “absent a property disposition notice to send out the property.” Dkt. 48, at

5. According to Defendant Ellis’ declaration and the property disposition form submitted

by Defendants (Dkt 45-2), a property disposition form was filled out on March 15, 2016.

Dkt. 45, at 6.

Defendant Ellis states he does not specifically recall discussing the search and

confiscated property with Plaintiff, but that he and his officers do so as a matter of

practice. Dkt. 45, at 6. He also states the evidence of some property being sent out and

returned to Plaintiff on the cell search report indicates Plaintiff “was provided notice of

the reason the property was confiscated" and “was in fact provided an opportunity to

address the disposition of his property." Id.

Defendant Ellis acknowledges that Plaintiffs signature is not on the property

disposition form, but states this could be because “many times incarcerated individuals

refuse to sign these forms or officers may have forgotten to obtain Mr. Smith’s

signature.” Id. Plaintiff denies being asked about the disposition of his property, stating

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the disposition form was just forwarded to him after the fact, and claims he would have

directed that his personal Bible be sent out rather than destroyed. Dkts. 48, 49.

On April 12, 2016, Plaintiff filed a kite stating, “[t]he CUS gave me a Bible and

requested to drop my grievance. It is not resolved because of a new Bible because I

had a special prayers in it written from God and Christ and it should never be hot

trashed." Dkt. 46-2, at 2. On April 14, 2016, K. McTarsney responded to the kite

informing Plaintiff that he could write an appeal to Level-2, but that he would not have

received his Bible back because it was altered. Id.

Soon thereafter Defendant Jones was assigned to conduct the investigation for

plaintiffs grievance (No. 16605680). Dkt. 46-2, at 2. Defendant Jones indicates in his

declaration that he discussed the grievance with Plaintiff on April 26, 2016. Dkt. 46, at 4.

He states Plaintiff “expressed frustration that his Bible had been confiscated" but that he

“informed [Plaintiff] that the Bible was altered and not allowed per policy” and “at no time

did Mr. Smith allege that his bible was not altered.” Dkt. 46, at 4. Defendant Jones

asserts that he explained to Plaintiff there was nothing more he could do as Plaintiffs

personal Bible “was contraband” and had already been replaced. Id. He claims that

Plaintiff indicated he understood and decided to drop his grievance. Dkt. 46, at 4. He

states that at no time did he pressure Plaintiff to drop his grievance. Id., at 5.

On April 26, 2016, Plaintiff wrote a kite (related to Grievance No. 16605680) to

GC McTarsney stating, “[p]lease drop this grievance, proceed with Ellis grievance.” Dkt.

46-3, at 1. GC McTarsney responded stating “16605880 will be completed as withdrawn

at your request. I do not know what you’re referring to about Ellis.” Id. The same day,

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Defendant Jones completed a grievance investigator report (No. 16605680), stating he

interviewed Plaintiff and that, “Smith stated he did not wish to pursue this grievance any

longer and completed a kite that was addressed to GC McTarsney dropping this

grievance.” Dkt. 46-4.

On or about June 23, 2016, Plaintiff submitted a re-write of grievance No.

16607182 stating Defendant Ellis forwarded him a property disposition of his Bible and

other property without his approval, and that he was told his prior grievance was

“inadvertently lost or destroyed.” Dkt. 5, at 58. On June 27, 2016, Grievance

Coordinator, D. Dahne, replied, “Rewrite was due 4/8/16. This complaint has already

been withdrawn and is now beyond timeframes." Id. On or about July 6, 2016, Plaintiff

appealed the grievance response received June 27, 2016 to Level II. Id. at 59. On July

7, 2016, Plaintiff received a response from Level II denying his request due to

withdrawal of the complaint on April 8, 2016 due to failure to rewrite as directed. Id. On

or about August 15, 2016, Plaintiff appealed the grievance response to Level III. Id. at

61. The appeal was responded to the same day stating:

Original complaint withdrawn 4/8/2016. Your rewrite was not received until

7/6/2016 dated by you on 6/30/16. You were informed on 7/15/16 that

your Appeal/Rewrite would not be accepted. This information has not

changed and this complaint will remain closed. (Not accepted).

Dkt. 5, at 60.

Plaintiff alleges that Defendants’ actions in approaching him in response to his

yelling religious praise, inquiring about drug use and taking him fora urinalysis violated

his rights to freedom of speech and expression and constituted a retaliatory response to

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his religious speech. Dkt. 5. He claims Defendant Ellis violated his right to freedom of

speech and substantially burdened his right to freedom of expression under the First

Amendment and RLUIPA when he confiscated and destroyed his personal Bible. Dkt. 5,

at 3; Dkt. 48, at 9-11.

Plaintiff claims that in addition to feeling fearful about expressing his religious

practice in the prison, he cannot recite “holy prayers, sing holy hyms, or read [his]

personal religious notes, inked in [his] Bible, ever again.” Dkt. 48, at 6. Additionally,

Plaintiff alleges that several family photos were embedded within the confiscated and

“hot trashed” Bible. Dkt. 48, at 6. Defendant Ellis asserts in his declaration that “Mr.

Smith has never said anything to [him] about the alleged loss of any pictures. This

lawsuit is the first [he] ha[s] heard of this." Dkt. 45, at 6. There is no reference to

personal family photos in the search report or any of Plaintiffs grievances. Dkt. 45-1.

Plaintiffs complaint also alleges Defendant Jones violated his right to be free

from cruel and unusual punishment by placing him in a suicide cell where he was forced

to sleep on the floor and subject to unsanitary conditions on February 27, 2016. Dkt. 5;

Dkt. 48, at 13-14. Defendant Jones asserts in his declaration that he did not place

Plaintiff in a holding cell on that date and that Department records show Plaintiff was in

the medical unit on that date. Dkt. 46, at 5. He states, under Department policy, as a

CUS, he does not have authority to admit or hold someone in the medical unit. Id.

REPORT AND RECOMMENDATION- 11

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LEGAL STANDARDS

Summary Judgment

The Court shall grant summary judgment if the movant shows that 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). The moving party has the initial burden of

production to demonstrate the absence of any genuine issue of material fact. Fed. R.

Civ. P. 56(a); see 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). A nonmoving party’s failure to comply with

local rules in opposing a motion for summary judgment does not relieve the moving

party of its affirmative duty to demonstrate entitlement to judgment as a matter of law.

Martinez v. Stanford, 323 F.3d 1178,1182-83 (9th Cir. 2003).

“If the moving party shows the absence of a genuine issue of material fact, the

non-moving party must go beyond the pleadings and ‘set forth specific facts’ that show

a genuine issue for trial.” Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). The non-moving party

may not rely upon mere allegations or denials in the pleadings but must set forth

specific facts showing that there exists a genuine issue for trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). A plaintiff must “produce at least some significant

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probative evidence tending to support” the allegations in the complaint. Smolen v.

Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990).

When the Court considers a motion for summary judgment, “[t]he evidence of the

non-movant is to be believed, and all justifiable inferences are to be drawn in [their]

favor.” Anderson v. Liberty Lobby, Inc., at 255. Yet the Court is not allowed to weigh

evidence or decide credibility. Id. The Court may not disregard evidence solely based

on its self-serving nature. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir.

2015).

Factual disputes whose resolution would not affect the outcome of the suit are

irrelevant to the consideration of a motion for summary judgment. Anderson, 477 U.S. at

248. In other words, “summary judgment should be granted where the nonmoving party

fails to offer evidence from which a reasonable jury could return a verdict in its favor.”

Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1121 (9th Cir. 1995).

42U.S.C. §1983

To be entitled to relief under 42 U.S.C. § 1983, a plaintiff must show: (i) the

conduct complained of was committed by a person acting under color of state law; and

(ii) the conduct deprived a person of a right, privilege, or immunity secured by the

Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981)

overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is

not merely a "font of tort law.” Parratt, 451 U.S. at 532. That plaintiff may have suffered

harm, even if due to another’s negligent conduct, does not in itself, necessarily

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demonstrate an abridgment of constitutional protections. Davidson v. Cannon, 474 U.S.

344, 347 (1986).

The causation requirement of § 1983 is satisfied only if a plaintiff demonstrates

that a defendant did an affirmative act, participated in another’s affirmative act, or

omitted to perform an act which he was legally required to do that caused the

deprivation complained of. Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir.

1978)).

In addition, government officials may not be held liable for the unconstitutional

conduct of their subordinates under a theory of respondeat superior. See Monell v. New

York City Dept, of Social Servs., 436 U.S. 658, 691 (1978) (finding no vicarious liability

for a municipal “person” under 42 U.S.C. § 1983). Because vicarious liability is

inapplicable to § 1983 suits, a plaintiff must plead that each government-official

defendant, through the official’s own individual actions, has violated the Constitution.

DISCUSSION

Religious Praise, Urinalysis, and Initial Seizure of Bible

Plaintiffs complaint alleges that Defendants violated his First Amendment right to

Freedom of Speech

freedom of speech when they approached him in response to his yelling “religious

praises” on February 29, 2016, subjected him to drug testing, and subsequently

confiscated his personal Bible. Dkt. 5, at 35. Plaintiff contends that Defendants actions

“chill[ed] and iced [his] exercise of religious speech." Dkt. 49, at 8. Defendants contend

that Plaintiffs claims should be dismissed arguing Plaintiff has failed to demonstrate his

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freedom of speech was infringed upon and, even if he could make this showing,

Defendants’ actions were reasonably related to legitimate penological interests. Dkt. 44

at 7.

Legal Standard

“[A] prison inmate retains those First Amendment rights”—including free

speech—“that are not inconsistent with his status as a prisoner or with the legitimate

penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822

(1974); see alsoJones v. North Carolina Prisoners’Labor Union, Inc., 433 U.S. 119,

129 (1977). Accordingly, “challenges to prison restrictions that are asserted to inhibit

First Amendment interests must be analyzed in terms of the legitimate policies and

goals of the corrections system.” Pell, 417 U.S. at 822. Thus, when a prison restriction

impinges on an inmate’s constitutional rights, that restriction will be found to be valid if it

is “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78,

89 (1987).

To determine the reasonableness of the prison restriction at issue, there are

18 several factors that are relevant to consider as outlined by the Supreme Court in Turner

v. Safley, 482 U.S. 78, 89 (1987). Id. “First, there must be a ‘valid, rational connection’”

20 between the restriction and “the legitimate governmental interest put forward to justify

it.’” Id. (citation omitted). Under this factor, the restriction “cannot be sustained where

the logical connection” between it and “the asserted goal is so remote as to render the

policy arbitrary or irrational.’’ Id. at 89-90. The governmental objective or interest also

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“must be a legitimate and neutral one.” Id. at 90. That is, the particular restriction must

operate “in a neutral fashion, without regard to the content of the expression.” Id.

The second factor “is whether there are alternate means of exercising the right

that remain open to prison inmates.” Id. Thus, “[w]here ‘other avenues’ remain available

for the exercise of the asserted right,... courts should be particularly conscious of the

‘measure of judicial deference owed to corrections officials ... in gauging the validity” of

the action. Id. (citations omitted). The third factor “is the impact accommodation of the

asserted constitutional right will have on guards and other inmates, and on the

allocation of prison resources generally.” Id. In other words, “[w]hen accommodation of

an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison

staff, courts should be particularly deferential to the informed discretion of corrections

officials.” Id.

Lastly, “the absence of ready alternatives is evidence of the reasonableness of a

prison” restriction. Id. On the other hand, “the existence of obvious easy alternatives

may be evidence that the” restriction “is not reasonable, but is an ‘exaggerated

response’ to prison concerns.” Id. Prison officials, however, need not “set up and then

shoot down every conceivable alternative method of accommodating the claimant’s

constitutional complaint” to satisfy this factor. Id., at 90-91. In other words, it “is not a

least restrictive alternative’ test.” Id. Nevertheless, if a prisoner “can point to an

alternative that fully accommodates” his or her “rights at de minimis cost to valid

penological interests, a court may consider that as evidence” that the governmental

action “does not satisfy the reasonable relationship standard.” Id. at 91.

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Religious Praise

Here, Plaintiff asserts that his First Amendment free speech rights were violated

because defendants prevented him from expressing religious gratitude. Dkt. 49, at 8.

Plaintiff acknowledges Defendant Ellis approached him upon speculation of drug use

after Plaintiff “prais[ed] his God in a loud manner” and “yell[ed] religious praises.” See

Dkt. 5, at 12; Dkt. 49, at 29. Plaintiff contends this confrontation infringed upon his

freedom of speech. Dkt. 49, at 13.

But the evidence shows that Defendant Ellis did not tell Plaintiff he was not

allowed to praise God or express religious thanks at all but only that he asked Plaintiff to

do so without yelling and disrupting the unit in violation of unit rules. Furthermore, the

evidence shows that Defendant Ellis observed atypical and off-baseline behavior by

Plaintiff including yelling, inability to stand still, fast rate of speech, dilated eyes, loud

voice, and incoherent speech in response to Defendant Ellis’ questioning. The evidence

shows Defendant Ellis alerted his Lieutenant based on his observation of Plaintiffs off-

baseline behavior, not based on the content of Plaintiffs speech, and that the

Lieutenant initiated drug testing.

Plaintiff argues that his drug test was ultimately negative, that he was only “on

the high of the Holy Spirit" and that defendants “misinterpret[ed]” his excitement over his

relative’s medical recovery. Dkt. 49, at 7,10. But even if Defendant Ellis misinterpreted

Plaintiffs behavior, this argument does not refute Defendant Ellis’s observation that

Plaintiff was yelling and behaving erratically and off his baseline behavior; and this,

rather than the content of Plaintiffs speech, was the reason for notifying the Lieutenant.

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Plaintiff also does not dispute that Defendant Ellis merely asked him to lower his volume

and did not demand Plaintiff stop his religious praise. In sum, there is no genuine

dispute of material fact regarding Plaintiff’s claim that his speech was restricted in any

meaningful way.

Even if the Court assumes, for purposes of analysis, that Defendant Ellis’ actions

infringed upon Plaintiffs First Amendment right to freedom of speech, the evidence

shows Defendant’s actions were valid because they were reasonably related to

legitimate penological interests. Legitimate penological interests include “the

preservation of internal order and discipline, the maintenance of institutional security

against escape or unauthorized entry, and the rehabilitation of the prisoners." Procunier

v. Martinez, 416 U.S. 396, 412 (1974) (footnote omitted). Here, Defendant Ellis states in

his declaration that yelling is not allowed per unit rules and that he informed Plaintiff that

“he was allowed to praise God but he could not be so loud and disruptive by yelling in

the manner that he was." Dkt. 45, at 3.

There is no genuine dispute of material fact regarding the defendant’s showing of

a valid, rational connection between Defendant Ellis requesting Plaintiff lower his noise

level and the legitimate, neutral governmental interest in maintaining internal order,

discipline and security in the unit. Moreover, Defendant Ellis informed Plaintiff of an

alternative means of expressing himself - by speaking or expressing his religious praise

without yelling. It can be inferred from the evidence presented that the impact of

permitting inmates on the unit to yell would be disruptive and detrimental to the

preservation of internal order and discipline, the maintenance of institutional security.

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Plaintiff offers no facts or evidence, other than conclusory assertions that he must be

allowed to yell religious praise, to dispute this, nor does he suggest ready alternatives,

Confiscation of Plaintiff’s Bible

Likewise, Plaintiffs claim that Defendant Ellis’ confiscation and destruction of

plaintiffs Bible violated his rights to Freedom of Speech under the First Amendment

also fails. There is no genuine dispute of material facts regarding Defendants’ showing

that the Bible, surge protector and power cords were confiscated because they were

altered in such a way that suggests they were being utilized to facilitate drug use.

In his declaration, Defendant Ellis asserts that the Bible had a large number,

maybe even hundreds, of pages torn out and that in his experience, because Bible

pages are thin and not laminated or coated, they are frequently used as rolling paper for

smoking purposes. Id. at 6. He also indicated the "power devices had black soot on

them and areas where they were melted” and that based upon these findings, he

strongly believed Plaintiff was using the Bible pages as rolling papers to smoke and the

altered surge protector and cords to light something on fire. Id. at 6. Defendant Ellis also

states that “altered property from its original form is not allowed as it creates safety

issues as well as contraband use and/or concealment and allows for the potential of

trading among the incarcerated population.” Id. at 6.

Plaintiff, in opposing Defendants’ motion and in support of his own motion for

summary judgment, argues the Bible was ripped when he received it and that he did not

alter it for purposes of drug use. Dkt. 49, at 15. He also disputes the degree to which the

Bible was altered, acknowledging that certain sections were ripped out, but disputing

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that it was hundreds of pages. Dkt. 49, at 30. Yet these arguments do not undermine

the evidence that the Bible was, in fact, torn and missing pages, and that Defendant

Ellis’ actions in confiscating the Bible were reasonably related to the legitimate

penological interest of limiting drug use and maintaining safety and security in the prison

environment.

The evidence shows a valid, rational connection between Defendant Ellis

confiscating Plaintiffs Bible and the legitimate, neutral government interest in preventing

drug use and maintaining internal order and security. Moreover, the evidence shows

that Defendant Jones provided Plaintiff with a replacement Bible two weeks after his

personal Bible was confiscated. Defendant Ellis’ statements regarding the use of Bible

pages and the other altered items to engage in drug use and the dangers of drug use to

the inmate individually and the institution demonstrate there would be a detrimental

impact on institutional security if they were not permitted to confiscate such items for

investigation. Plaintiff argues his altered Bible did not pose a danger, but his conclusory

argument does not undermine the evidence presented by Defendants supporting the

validity of their actions.

Plaintiffs complaint also alleges that Defendant Jones violated his First

Amendment right to freedom of speech by approaching Plaintiff (along with Defendant

Ellis) in response to Plaintiffs religious praise and subsequently escorting him to

medical for a urinalysis. Plaintiff has conceded in his response to the motion that

Defendant Jones is entitled to summary judgment with respect to all claims against him.

Furthermore, none of the arguments or evidence Plaintiff submits in opposition to

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Defendants’ motion for summary judgment, or in support of his own motion for summary

judgment, raise a question of fact with respect to these claims with respect to either

Defendant Jones or Defendant Ellis.

Accordingly, Defendants’ motion for summary judgment should be GRANTED

and Plaintiffs motion for summary judgment DENIED with respect to Plaintiffs First

Amendment freedom of speech claims relating to the Defendants’ response to Plaintiffs

yelling of religious praise, urinalysis, and initial confiscation of his Bible.

Free Exercise

Plaintiff also alleges Defendants violated his First Amendment right to free

exercise of his religion when they approached him in response to his yelling “religious

praises” on February 29, 2016, subjected him to drug testing, and subsequently

confiscated his personal Bible. Dkt. 5, at 35; Dkt. 48, at 11. Defendants argue that

Plaintiffs religious practice was not substantially burdened by their actions and, even if

it were, their actions were valid because they were reasonably related to a legitimate

penological interest. Id.

To establish his right to freely exercise his religion under the First Amendment

has been violated, at the outset plaintiff must establish the particular religious conduct

or practice at issue is mandated by his faith. This involves two criteria. First, plaintiff

Legal Standard

must demonstrate that his “proffered belief is “sincerely held.” Malik v. Brown, 16 F.3d

330, 333 (9th Cir. 1994). This initial determination, in other words, requires the Court to

determine at the outset whether the exercise of the claimant’s religious beliefs alleged

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to have been burdened is mandated by his or her faith. In making that determination,

the Court first must decide whether those beliefs are sincerely held by the claimant.

Here, defendants do not dispute that Plaintiffs proffered religious beliefs -- and the

exercise of writing in the Bible and speaking in prayer, as an element of his faith -- are

sincerely held.

Next, plaintiff must show that defendants "burdened the practice of his religion,

by preventing him from engaging in conduct mandated by his faith.” Freeman v. Arpaio,

125 F.3d 732, 736 (9th Cir. 1997); Graham v. C./.R., 822 F.2d 844, 850-51 (9th Cir.

1987) (government action burdens prisoner’s practice of religion if he or she is

prevented from engaging in conduct mandated by his or her faith). “In order to reach the

level of a constitutional violation,” furthermore, “the interference with one’s practice of

religion ‘must be more than an inconvenience; the burden must be substantial and an

interference with a tenet or belief that is central to religious doctrine.” Freeman, 125

F.3d at 737 (quoting Graham, 822 F.2d at 851). The “relatively short-term and sporadic”

intrusions do not constitute a substantial burden on the free exercise of religion. See

Caneffv. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998).

Even if a restriction does place a substantial burden on a Plaintiffs religious

practice, the restriction will be found valid if it is reasonably related to a legitimate

penological interest. The right to freely exercise one’s religion “is necessarily limited by

the fact of incarceration and may be curtailed in order to achieve legitimate correctional

goals or to maintain prison security.” O’Lone v. Shabazz, 482 U.S. 342, 348 (1987).

Thus, to establish a violation of the right to freely exercise one’s religion, an inmate

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asserting the violation must show the state “burdened the practice of his religion, by

preventing him from engaging in conduct mandated by his faith, without any justification

reasonably related to legitimate penological interests.” Freeman v. Arpaio, 125 F.3d

732, 736 (9th Cir. 1997) (citing Turner, 482 U.S. at 89) (footnote omitted).

In analyzing the legitimacy of regulation of prisoners’ religious expression, courts

utilize the four Turner factors discussed above. See Turner, 482 U.S. at 89. First, the

prison regulation must have a “valid, rational connection” to the legitimate governmental

interest it is furthering. Id. Second, the court should consider the availability of

alternatives for the prisoner. Id. at 90. “The relevant inquiry [here]... is not whether the

inmate has an alternative means of engaging in the particular religious practice that he

or she claims is being affected; rather [the court must] determine whether the inmates

have been denied all means of religious expression.” Ward v. Walsh, 1 F.3d 873, 877

(9th Cir. 1993) (citing O’Lone, 482 U.S. at 351-52). Third, the court should consider the

effect of the accommodation on prison staff and other inmates, including consideration

of security concerns. See McCabe v. Arave, 827 F.2d 634, 637 (9th Cir. 1987). Finally

the fourth factor under Turner emphasizes that the absence of ready alternatives is

evidence of the reasonableness of a prison regulation. Turner, 482 U.S. at 90.

In making the above determination, however, it must be noted that “substantial

deference” is to be accorded “to the professional judgment of prison administrators, who

bear a significant responsibility for defining the legitimate goals of a corrections system

and for determining the most appropriate means to accomplish them.” Overton, 539

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U.S. at 132. The burden of proof, furthermore, is not on defendants to establish the

validity of the challenged regulation, but plaintiff “to disprove it.” Id.

Religious Praise

Plaintiff asserts that his First Amendment right to freedom of religious expression

was violated because Defendants prevented him from expressing religious gratitude

when they approached him in response to his yelling “religious praises” on February 29,

2016, and then subjected him to a urinalysis. Dkt. 49, at 8. But the evidence shows that

Defendant Ellis did not tell Plaintiff he was not allowed to praise God or express

religious thanks at all but only that he asked Plaintiff to do so without yelling and

disrupting the unit in violation of unit rules.

Plaintiff offers no evidence or facts to indicate that his religious faith mandates

that he yell his religious praise and that Defendant Ellis’ request that he lower his

volume substantially burdened his religious practice. The evidence shows that

Defendant Ellis observed atypical and off-baseline behavior by Plaintiff and that

Defendant Ellis alerted his Lieutenant based on his observation of that behavior, not

based on his religious practice, and that the Lieutenant then initiated drug testing.

Plaintiff offers no facts or evidence to indicate that the urinalysis itself substantially

burdened his religious practice.

Plaintiff argues that his drug test was negative and that defendants

“misinterpret[ed]” his excitement over his relative’s medical recovery. Dkt. 49, at 7, 10.

But even if Defendant Ellis misinterpreted Plaintiffs behavior as indicating drug use, this

argument does not create a genuine dispute of material fact regarding Defendant Ellis’s

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observation that Plaintiff was yelling and behaving erratically and off his baseline

behavior and that this -- rather than the fact that Plaintiff was yelling religious praise

was the reason for notifying the Lieutenant. The evidence does not support Plaintiffs

claim that his freedom of expression was substantially burdened by Defendants’ actions

in engaging Plaintiff in conversation about his behavior, asking him to lower his volume,

or notifying the Lieutenant of the behavior who then authorized a urinalysis. Rather, the

evidence shows that this was at most a short-term temporary intrusion or

inconvenience. See See Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998).

Even if the Court assumes, for purposes of analysis, that Defendants’ actions

substantially burdened Plaintiffs religious practice, there is no genuine dispute of

material fact concerning the Defendants’ showing that their actions were valid because

they were reasonably related to legitimate penological interests. Evaluating the

restrictions under the Turner factors, the evidence shows a valid, rational connection

between Defendant Ellis requesting Plaintiff lower his noise level and the legitimate,

neutral governmental interest in maintaining internal order, discipline and security in the

unit.

Moreover, Defendant Ellis informed Plaintiff of an alternative means of

expressing his religious right - by speaking or expressing his religious praise without

yelling. It can be reasonably inferred from the evidence that the impact of permitting

inmates on the unit to yell would be disruptive and detrimental to the preservation of

internal order and discipline and the maintenance of institutional security. Plaintiff offers

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no facts or evidence, other than conclusory assertions that his religion requires him to

yell religious praise, to dispute this, nor does he suggest ready alternatives.

Confiscation of Plaintiffs Bible

Plaintiff also contends his First Amendment rights to free religious expression

were violated when Defendant Ellis confiscated his personal Bible ~ which he claims

contained personal hymns and letters to God. Dkt. 5, at 13. Defendants present

evidence in support of their motion that Defendant Jones worked with the facility

Chaplain to secure a replacement Bible; it was provided to Plaintiff just two weeks after

his personal Bible was confiscated. See Dkt. 44, at 10; Dkt. 46, at 4. Under the

circumstances, this relatively short-term intrusion between the confiscation of Plaintiffs

altered Bible due to suspicion it was being utilized for drug use and pending

investigation and defendant Jones providing an unaltered replacement Bible does not

rise to the level of a substantial burden on the free exercise of religion. See Canell v.

Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998).

Plaintiff argues that the replacement Bible was insufficient because his personal

Bible contained personal hymns and letters to God that he had written into the Bible.

But there is no genuine dispute of material fact concerning Defendants’ evidence that

their actions were valid because they were reasonably related to legitimate penological

interests. Evaluating the restrictions under the Turner factors, the evidence shows a

valid, rational connection between Defendant Ellis confiscating Plaintiffs altered Bible

and the legitimate, neutral government interest in preventing drug use and maintaining

internal order and security. Defendant Ellis’ statements regarding the use of altered

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items to engage in drug use and the dangers of drug use to the inmate individually and

the institution demonstrate there would be a detrimental impact on institutional security

if they were not permitted to confiscate such items. Defendant Ellis’ statements

regarding the use of the Bible pages and other altered items to engage in “arching” for

purposes of drug use and the dangers of drug use to the inmate individually and the

institution demonstrate there would be a detrimental impact on institutional security if

they were not permitted to confiscate such items for investigation. Plaintiff argues his

altered Bible did not pose a danger, but this conclusory argument does not create a

genuine dispute of material fact regarding the evidence presented by Defendants

supporting the validity of their actions.

Plaintiff has conceded in his response to the motion that Defendant Jones is

entitled to summary judgment with respect to all claims against him. Furthermore, none

of the arguments or evidence Plaintiff submits in opposition to Defendants’ motion for

summary judgment, or in support of his own motion for summary judgment, raise a

question of fact with respect to these claims with respect to either Defendant Jones or

Defendant Ellis.

Accordingly, Defendants’ motion for summary judgment should be GRANTED

and Plaintiffs motion for summary judgment DENIED with respect to Plaintiffs First

Amendment freedom of expression claims relating to the Defendants’ response to

Plaintiffs yelling of religious praise, urinalysis, and the initial confiscation of his Bible.

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Destruction/Failure to Return Bible and Loss of Photos

Plaintiff also alleges his First Amendment rights to freedom of speech and

religious expression were violated when Defendant Ellis destroyed his personal Bible.

Plaintiff argues his personal Bible was not a security risk and should have been

First Amendment - Freedom of Speech and Expression

returned to him or that he should have been given the opportunity to mail the Bible out.

See Dkt. 49, at 25.

Substantial Burden

Defendants present evidence that Plaintiff was provided a replacement Bible

approximately two weeks after his personal Bible was confiscated and that Plaintiff

agreed to accept the replacement. See Dkt. 46, at 4; Dkt. 49, at 14. Defendants also

note that, in addition to his replacement Bible, Plaintiff continued to have available to

him the full panoply of prison religious programs, including, among other things, library

materials and videos, religious services and ceremonies, and access to the chaplain.

Dkt. 55-3 at 10.

Plaintiff, in opposing Defendants’ motion and in support of his own motion for

summary judgment, states that his personal Bible contained personal prayers and

letters to God that he had written into it. See Dkts. 48, 49. He also states that he would

recite these personal prayers on a daily basis in his cell and that he is now unable to do

so because his Bible has been destroyed. See Dkt. 49, at 34, 36. He claims he informed

defendants of this fact and that a new Bible would not be an adequate replacement. Id.

at 14-15.

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Plaintiffs arguments demonstrate an impact upon his religious experience from

the loss of his personal Bible but fall short of the religious restrictions courts have

recognized as sufficient to meet the “substantial burden” requirement of a First

Amendment claim. To state a claim, a prisoner “must show the [defendants] burdened

the practice of [his] religion, by preventing him from engaging in conduct mandated by

his faith, without any justification reasonably related to legitimate penological interests.”

Freeman, 125 F.3d at 735. The First Amendment does not reach the “incidental effects”

of otherwise lawful government programs “which may make it more difficult to practice

certain religions but which have no tendency to coerce individuals into acting contrary to

their religious beliefs.” Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S.

439, 450-51 (1988).

While Plaintiffs religious experience may be diminished without access to his

altered Bible, he has not come forward with any facts demonstrating he has in any way

been "coerced into acting contrary to [his] beliefs.” Id. Here, Plaintiff was deprived of

access to his preferred Bible, but was given a substitute. This is sufficient to meet the

requirements of the First Amendment. Under similar circumstances, the Seventh Circuit

held that depriving a prisoner of his personal Bible containing commentary important to

his religious practice did not substantially burden the practice of his religion when he

was provided an alternative Bible, albeit without the same commentary. Tarpley v. Allen

Cty., Indiana, 312 F.3d 895, 899 (7th Cir. 2002) (“Prisons are only required to make

reasonable efforts to provide an opportunity for religious practice. . . . Under the

circumstances here, giving [Plaintiff] a copy of the NIV Bible that he could use in his cell

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offered him the essential material for his religious studies."). See also Dunlap v. Losey,

40 F. App'x 41,43 (6th Cir. 2002) (deprivation of plaintiffs personal Bibles “while

making the practice of his religion somewhat more difficult, did not coerce him into

action contrary to his beliefs”).

Legitimate Penological Interest

Even if Plaintiff could establish that destruction of his Bible imposed a substantial

burden on his religious practice, Defendants have submitted evidence that removing

Plaintiffs access to the altered Bible was valid because it was reasonably related to a

legitimate penological interest. Specifically, Defendants state that that Plaintiffs Bible

was “severely altered,” with a large number of pages torn out— “maybe even hundreds

of pages.” Dkt. 45, at 5. This alteration rendered Plaintiffs Bible contraband which

Plaintiff was not permitted to possess, regardless of the nature of Plaintiffs use of it.

Dkt. 44, at 16. Pursuant to DOC Policy 440.000:

The following items will be considered contraband when found in an

offender’s possession and will be disposed of per the Disposition section

of this policy:

•

Any items found in the offender’s possession having distorted or

altered markings and/or are substantially modified from the

manufacturer’s original configurations.

Dkt. 55-1, at 4; see also Dkt. 55-2, at 5 (identical provision in SCCC Operational

Memorandum).

Because prison regulations prohibit all possession of altered items, Plaintiff is

forbidden any access to his altered Bible in his cell. Id. Thus, even if Defendants had

not destroyed the Bible but instead sent it out (as Plaintiff claims should have been

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done), Plaintiff would not have access to the notes and commentary it contains. For

purposes of analyzing Plaintiffs Free Exercise claim, then, there is no difference

between destruction and removal of the Bible; Plaintiff loses access to his

commentaries in any event.

As discussed in Section A (2) (c) above, Defendants have demonstrated their

policy of permanently removing altered personal items from prisoners’ cells is rationally

connected with the legitimate government interest in preventing drug use and

maintaining security, and allowing exceptions to the contraband rule would undermine

these goals.

Accordingly, Plaintiffs motion for summary judgment should be DENIED and

Defendants’ motion GRANTED with respect to Plaintiffs First Amendment claim against

Defendant Ellis for the destruction of Plaintiffs Bible.

Plaintiff has conceded in his response to the motion that Defendant Jones is

entitled to summary judgment with respect to all claims against him. Furthermore, none

of the arguments or evidence Plaintiff submits in opposition to Defendants’ motion for

summary judgment, or in support of his own motion for summary judgment, raise a

question of fact with respect to Plaintiffs First Amendment freedom of speech and

freedom of expression claims related to the destruction of Plaintiffs Bible as against

Defendant Jones. Accordingly, Defendants’ motion for summary judgment should be

GRANTED and Plaintiffs motion for summary judgment DENIED with respect to

Plaintiffs First Amendment claims against Defendant Jones for the destruction of

Plaintiffs Bible.

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Plaintiff also claims his Due Process rights were violated because he was not

Due Process

consulted about the disposition of his property or given the opportunity to mail his

personal Bible out prior to its destruction. Dkt 5. Defendants argue that Plaintiff does not

have a property interest in contraband, that the notations on the cell search report

indicate that Plaintiff was given the opportunity to address the disposition of his

property, and that Plaintiff fails to establish a Due Process violation because a

meaningful post-deprivation remedy was available to him. Dkt. 44.

Legal Standard

The Due Process Clause protects prisoners from being deprived of property

without due process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citations

omitted), and prisoners have a protected interest in their personal property, Hansen v.

May, 502 F.2d 728, 730 (9th Cir. 1974). Nevertheless, the due process rights of

prisoners “are not absolute; they are subject to reasonable limitation or retraction in light

of the legitimate security concerns of the institution.” Bell v. Wolfish, 441 U.S. 520, 554

(1979).

Furthermore, only an authorized, intentional deprivation of property is actionable

under the Due Process Clause. Hudson v. Palmer, 468 U.S. 517, 533 (1984). An

authorized deprivation occurs pursuant to “state law, regulation, or institutionalized

practice,” and the normal pre-deprivation hearing is required to satisfy due process.

Haygood v. Younger, 769 F.2d 1350,1357 (9th Cir. 1985) (en banc), cert, denied, 478

U.S. 1020 (1986) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982)). An

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unauthorized intentional or negligent deprivation of property by a state employee does

not constitute a Fourteenth Amendment violation if a meaningful post-deprivation

remedy for the loss is available under state law. Hudson, 468 U.S. at 534; Haygood,

769 F.2d at 1357 (internal citation omitted) (unauthorized deprivations do not occur

pursuant to a “state law, regulation, or institutionalized practice[ ]”); Pennick v,

Chesterman, No. 318CV05331RJBDWC, 2019 WL 2996706, at *4 (W.D. Wash. June

10, 2019), report and recommendation adopted, No. 318CV05331RJBDWC, 2019 WL

2995541 (W.D. Wash. July 8, 2019).

Property Interest

Defendants argue that Plaintiffs due process claim fails because he has no

protected property interest. Defendants’ evidence establishes that Plaintiffs Bible was

extensively altered and therefore, under Policy 440.000, constituted “contraband." Dkt.

45, at 14; Dkt. 55-1, at 8-9. The policy prohibits the possession of contraband. Id.

Where a prisoner has no right to possess contraband, he has no due process

claim for its removal or destruction. A prisoner is “not entitled to hearing before seizure

of contraband items.” Hentz v. Ceniga, 402 F. App'x 214, 215 (9th Cir. 2010) (affirming

summary judgment dismissing due process claims). See also Lyon v. Farrier, 730 F.2d

525, 527 (8th Cir. 1984), (“We find without merit the argument that destruction of a

painting possessed by [plaintiff] constituted a deprivation of property without due

process of law. Because the property was contraband, [plaintiff] cannot seriously argue

that he had a protected property interest in it. Therefore, the destruction of the painting

did not implicate any due process concerns.”); Steffey v. Orman, 461 F.3d 1218, 1221

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(10th Cir. 2006) (“here we conclude that Mr. Steffey had no property right protected by

the Fourteenth Amendment to receive a contraband money order while in prison”).

Plaintiffs due process claims regarding the destruction of his altered Bible should

be dismissed because, under prison regulations, the Bible was contraband; it is

therefore not protected by the Fourteenth Amendment.

Process

Defendants contend that even if Plaintiff were deemed to have a property right in

his altered Bible, he was not deprived of due process.

Defendants argue that the prison’s policies for contraband and evidence handling

(DOC Policy 420.375) and disposition of personal property (DOC Policy 440.000) meet

due process requirements. Dkt. 54 at 11-12. Those policies provide that contraband

seized from a cell that triggers an infraction be documented in a Search Report form

and disposed of pursuant to Policy 440.000—which provides that a prisoner has 90

days to dispose of the property (including mailing it out) using a Property Disposition

form. Dkt. 55-4 at 3-4; Dkt. 55-1 at 8-9. If a prisoner fails to pay for shipment or fails to

designate an offsite recipient, the property is either donated or destroyed. Dkt. 55-4 at 9.

Finally, SCCC has a facility appeal process for any disputes regarding the disposition of

contraband. Dkt. 55-2 at 10. The Court concludes that the process outlined in these

documents, which provides notice and an opportunity to be heard before the property is

disposed of would, if followed, meet due process requirements. Mullane v. Cent.

Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).

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Defendants contend that they followed their process, including providing Plaintiff

a copy of the Search Report and completing a Property Disposition Form—although

Defendants acknowledge that the Property Disposition Form does not include Plaintiffs

signature. Dkt. Dkt. 45, at 6-7; Dkt. 45-1; Dkt. 45-2. But Plaintiff alleges that Defendants

failed to allow him to address the disposition of his property at all, and that he would

have chosen to mail his Bible out rather than have it destroyed. See Dkt. 49, at 14-15,

34, 36. There is therefore a disputed issue of fact regarding whether Defendants

properly followed their procedures.

This dispute is not material, however. Even if Defendants failed to follow their

process, thus rendering their destruction of the Bible unauthorized, Plaintiff had an

adequate post-deprivation remedy. Hudson, 468 U.S. at 534. the State of Washington

provides a meaningful post-deprivation remedy for the intentional or negligent loss of

property by state agents and employees by allowing for a suit in Superior Court once a

person has completed the state's tort claim process. See Magana v. Morgan, 2016 WL

6111131, at *3 (W.D. Wash. Sept. 14, 2016) (citing Jeffries v. Reed, 631 F. Supp. 1212

1216 (E.D. Wash. Mar. 27, 1986); RCW4.92.090-.100; RCW72.02.045(3)). Plaintiff

contends that the tort process is inadequate but complains only that he did not receive

the result he desired. Dkt. 56 at 7-9. The Ninth Circuit has held that Washington’s tort

claim statute satisfies due process. Wright v. Riveland, 219 F.3d 905, 918 (9th Cir.

2000).

Defendants’ motion for summary judgment should be GRANTED, and Plaintiffs

motion for summary judgment should be DENIED with respect to Plaintiffs procedural

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Due Process claim pertaining to his Bible.

Plaintiff also claims Defendant Ellis violated his Due Process rights by depriving

him of his pictures that were in the Bible. Defendant Ellis denies having any knowledge

Photos

of the pictures. Dkt. 45, at 6. He denies confiscating the pictures indicating that he

would have placed them on the search report if he had or left them somewhere obvious

in the cell if they were acceptable. Id. With respect to the pictures, the record

establishes that, accepting Plaintiffs claim that they did exist, Plaintiff was not deprived

of them pursuant to a state law, regulation, or institutionalized practice. As such, Plaintiff

has a meaningful post-deprivation remedy with respect to the pictures and does not

state a procedural Due Process claim. Accordingly, Defendants’ motion for summary

judgment should be GRANTED, and Plaintiffs motion for summary judgment should be

DENIED with respect to Plaintiffs procedural Due Process claim pertaining to his

pictures.

Plaintiff has conceded in his response to the motion that Defendant Jones is

entitled to summary judgment with respect to all claims against him. Furthermore, none

of the arguments or evidence Plaintiff submits in opposition to Defendants’ motion for

summary judgment, or in support of his own motion for summary judgment, raise a

question of fact with respect to Plaintiffs Due Process claims against Defendant Jones.

Accordingly, Defendants’ motion for summary judgment should be GRANTED and

Plaintiffs motion for summary judgment DENIED with respect to Plaintiffs Due Process

claims against Defendant Jones.

REPORT AND RECOMMENDATION- 36

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Retaliation

To prevail on a retaliation claim, a plaintiff must allege and prove the defendants

retaliated against him for exercising a constitutional right and the retaliatory action did

not advance legitimate penological goals or was not narrowly tailored to achieve such

goals. Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997). A prisoner suing a prison

official under § 1983 for retaliation for engaging in protected speech must allege “the

type of activity he engaged in was protected under the first amendment and that the

state impermissibly infringed on his right to engage in the protected activity.” Rizzo v.

Dawson, 778 F.2d 527 (9th Cir. 1983).

Within the prison context, a viable claim of First Amendment

retaliation entails five basic 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). “Mere speculation that

defendants acted out of retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905

(9th Cir. 2014) (affirming grant of summary judgment where no evidence that

defendants knew of plaintiffs prior lawsuit or that defendants’ disparaging remarks were

made in reference to prior lawsuit). To state a claim for retaliation, the plaintiff must

allege facts that establish an actual link between his exercise of constitutional rights and

the alleged retaliatory action. See Pratt v. Rowland, 65 F.3d 802, 807-810 (9th Cir.

1995).

REPORT AND RECOMMENDATION- 37

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Retaliation claims brought by prisoners must be evaluated in light of concerns

over “excessive judicial involvement in day-to-day prison management, which ‘often

squanders] judicial resources with little offsetting benefit to anyone.”’ Pratt, 65 F.3d at

806 (quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). In particular, courts should

“‘afford appropriate deference and flexibility’ to prison officials in the evaluation of

proffered legitimate penological reasons for conduct alleged to be retaliatory.” Id.

(quoting Sandin, 515 U.S. at 482). Prisons have a legitimate goal of preserving internal

order and discipline. See Rizzo, 778 F.2d at 532.

Retaliation Claims Related to Urinalysis, Cell Search, Confiscating

and Destroying Bible and Other Property

Plaintiff complaint alleges Defendants retaliated against him for praising God by

removing him from his cell, escorting him to the medical unit and subjecting him to a

urinalysis, searching his cell, and confiscating and subsequently destroying his Bible

and other property.

To prevail on his retaliation claim, Plaintiff must show that his protected conduct

was “the ‘substantial’ or ‘motivating’ factor behind the defendant's conduct.” Soranno's,

874 F.2d at 1314. To show the presence of this element on a motion for summary

judgment, [the plaintiff] need only “put forth evidence of retaliatory motive, that, taken in

the light most favorable to him, presents a genuine issue of material fact as to [the

prison official’s] intent....” Bruce v. Ylst, 351 F.3d 1283,1289 (9th Cir.2003). Further, to

prevail on a retaliation claim, a prisoner must show that the challenged action “did not

REPORT AND RECOMMENDATION- 38

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page 39 of 49

reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559

568 (9th Cir. 2005).

As discussed above, the evidence shows the content of Plaintiffs speech or

religious expression were not the substantial or motivating factor behind Defendants’

actions in confiscating the Bible but, rather, their actions were motivated by and related

to the legitimate penological interest of limiting drug use in prison, protecting those who

may be under the influence of drug use, and maintaining institutional security. As

Defendant Ellis states in his declaration, his actions in notifying his Lieutenant (who then

authorized the urinalysis) were prompted by his observation of Plaintiffs off-baseline

behavior of yelling, “dilated eyes”, “a hard time responding to my questions”, “fast”

speech, and “jittery” behavior and his concern that Plaintiffs unusual behavior was the

product of drug use. Dkt. 45, at 3. While Plaintiff denies drug-use he does not

substantially dispute Defendant Ellis’s observations of his behavior.

Defendant Ellis further states that his actions in searching Plaintiffs cell and

confiscating his Bible and other property were likewise related to the concern that

Plaintiff was on drugs and utilizing those items to engage in drug use. As discussed

above, Defendant Ellis details the nature of the alterations to Plaintiffs Bible and his

belief, based on his experience and the presence of other altered property in Plaintiffs

cell, that Plaintiff was using the altered Bible and those other items to engage in drug

use.

Furthermore, to the extent Plaintiff intends to allege that the destruction of his

personal Bible, as distinguished from the initial seizure, was done in retaliation for his

REPORT AND RECOMMENDATION- 39

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page 40 of 49

religious expression or speech, he offers no facts or evidence to establish an actual link

between the exercise of his constitutional rights and the destruction of the Bible. Wood,

753 F.3d at 905 (“Mere speculation that defendants acted out of retaliation is not

sufficient” to establish a retaliation claim); see Pratt, 65 F.3d at 807-810.

Plaintiff has conceded in his response to the motion that Defendant Jones is

entitled to summary judgment with respect to all claims against him. It also appears that

Plaintiff concedes Defendants are entitled to summary judgment with respect to his

claims related to the urinalysis. Dkt. 49, at 4. Furthermore, none of the arguments or

evidence Plaintiff submits in opposition to Defendants’ motion for summary judgment, or

in support of his own motion for summary judgment, raise a question of fact with respect

to the retaliation claims against either Defendant Jones or Defendant Ellis related to the

urinalysis, cell search, and confiscation and subsequent destruction of Plaintiffs Bible.

Accordingly, Defendants’ motion for summary judgment should be GRANTED

and Plaintiffs motion for summary judgment DENIED with respect to these claims.

Retaliation Claims Related to Defendant Jones’ Alleged Involvement

in Infraction and Grievances

Plaintiffs complaint alleges that Defendant Jones pressured him to drop his

grievance against him and allegedly conspired with Investigator Michael Wayman (who

was previously dismissed as a defendant) to later infract Plaintiff. Dkt. 5.

Defendant Jones asserts in his declaration that he did not pressure Plaintiff to

drop his grievance against him. Dkt. 46. He states he spoke with Plaintiff as part of the

investigation related to Plaintiffs grievance regarding his confiscated Bible. Id.

REPORT AND RECOMMENDATION- 40

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Defendant Jones states that Plaintiff expressed his frustration over the loss of his

personal Bible. Id. Defendant Jones states that he told Plaintiff that the Bible was

altered and not allowed per policy, that he had provided Plaintiff a replacement Bible,

and that there was nothing more he could do. Id. Defendant Jones states that Plaintiff

indicated he understood and stated he did not wish to pursue the grievance any longer.

Id.

Defendants also move for summary judgment regarding Plaintiffs claim that

Defendant Jones "conspired” with Investigator Wayman to infract Plaintiff. Defendants

argue they are entitled to summary judgment on this claim as Plaintiff fails to allege any

facts beyond his conclusory allegation that Defendant “conspired” with Investigator

Wayman or that he was involved in any way with the infraction. Defendants note that

Defendant Jones is not listed on any of the infraction paperwork and that Plaintiff cannot

produce any evidence that Defendant Jones personally participated in any way

regarding Plaintiffs infraction.

Plaintiff has conceded in his response to the motion that Defendant Jones is

entitled to summary judgment with respect to all claims against him. As Plaintiff

indicates he does not dispute Defendants’ evidence on these issues, Defendants’

motion for summary judgment should be GRANTED and Plaintiffs motion for summary

judgment DENIED with respect to these claims.

Access to Courts

Plaintiffs complaint alleges that Defendant Jones violated his right to access to

the courts by “threatening” Plaintiff to drop his grievances. Dkt. 5, at 36. Defendants

REPORT AND RECOMMENDATION- 41

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page 42 of 49

argue Defendant Jones is entitled to summary judgment because Plaintiff fails to show

actual injury as the record shows he has been able to pursue this action without

impediment. Dkt. 44, at 10.

Prisoners have a constitutional right to access to the courts. Lewis v. Casey, 518

U.S. 343, 346 (1996). The right is limited to the filing of direct criminal appeals, habeas

petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts

may arise from the frustration or hindrance of “a litigating opportunity yet to be gained”

(forward-looking access claim) or from the loss of a suit that cannot now be tried

(backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002); see

also Siiva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between

two types of access to court claims: those involving prisoners’ right to affirmative

assistance and those involving prisoners’ rights to litigate without active interference.”).

However, a plaintiff must allege “actual injury” as the threshold requirement to

any access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An

“actual injury” is “actual prejudice with respect to contemplated or existing litigation

such as the inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at

348; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury

as the "inability to file a complaint or defend against a charge”). The failure to allege an

actual injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure

to show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis,

518 U.S. at 353 & n.4).

REPORT AND RECOMMENDATION- 42

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page 43 of 49

The record shows that Plaintiff has been able to pursue this § 1983 action and

there is no evidence that Defendant Jones’ alleged actions have cause him any actual

injury in prosecuting his case. Defendant Jones also asserts in his declaration that he

did not pressure Plaintiff to drop his grievance. Plaintiff has conceded in his response to

the motion that Defendant Jones is entitled to summary judgment with respect to all

claims against him and Plaintiff submits no arguments or evidence in opposition to

Defendants’ motion for summary judgment, or in support of his own motion for summary

9 judgment, that raise a question of fact on this issue.

Accordingly, Defendants’ motion for summary judgment should be GRANTED

and Plaintiffs motion for summary judgment DENIED with respect to these claims.

Conditions of Confinement

Plaintiff alleges Defendant Jones violated his rights by subjecting him to

unsanitary conditions during a 48-hour “detox cell” hold on February 27, 2016. Dkt. 48

at 14. Defendants argue that all claims against Defendant Jones relating to Plaintiffs

conditions of confinement should be dismissed because Defendant Jones had no

control over Plaintiffs conditions of confinement during the subject period. Dkt. 44, at

21.

Defendant Jones states in his declaration that he did not place Plaintiff in a

holding cell on February 27, 2016. Dkt. 46, at 5. He further states that Department

records show Plaintiff was in the medical unit on February 27, 2016, and that under

Department policy, as a CUS, he has no authority to admit or hold someone in medical.

ld. \ Dkt. 46-6 (DOC Policies 320.265 and 610.60). In order to state a claim under 42

REPORT AND RECOMMENDATION- 43

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page 44 of 49

U.S.C. § 1983, Plaintiff must allege facts showing how individually named defendants

caused, or personally participated in causing, the harm alleged in the complaint. See

3 Leerv. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Arnold v. IBM, 637 F.2d 1350, 1355

(9th Cir. 1981). A person subjects another to a deprivation of a constitutional right when

committing an affirmative act, participating in another’s affirmative act, or omitting to

perform an act which is legally required. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

1978). Plaintiff concedes that Defendants’ motion for summary judgment should be

granted on this issue and presents no facts or evidence in opposition to the motion or in

support of his own motion for summary judgment that would raise an issue of fact. Dkt.

49, at 4.

Accordingly, as the undisputed record shows a lack of personal participation on

the part of Defendant Jones with respect to the alleged violations, Defendants’ motion

for summary judgment should be GRANTED and Plaintiffs motion for summary

judgment should be DENIED on these claims.

RLUIPA

In 2000, Congress passed the Religious Land Use and Institutionalized Persons

Act (RLUIPA), which provided heightened protection of religious beliefs to prevent

undue barriers to religious observances by persons institutionalized in state or federal

institutions. Under RLUIPA, no government “shall impose a substantial burden on the

religious exercise of a person residing or confined to [a jail, prison or other correctional

facility]... even if the burden results from a rule of general applicability,” unless the

REPORT AND RECOMMENDATION- 44

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page 45 of 49

burden furthers a “compelling governmental interest” and is the “least restrictive means

of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a).

RLUIPA does not allow claims against prison officials sued in their individual

capacities. See Wood v. Yordy, 753 F.3d 899, 901 (9th Cir. 2014) (RLUIPA does not

contemplate liability of government employees in individual capacity). A suit against a

defendant in his individual capacity “seek[s] to impose personal liability upon a

government official for actions he takes under color of state law.... Official-capacity

suits, in contrast, generally represent only another way of pleading an action against an

entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105

S.Ct. 3099, 87 L.Ed.2d 114 (1985) (internal quotation marks omitted; emphasis added);

see also Community House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 966-67 (9th Cir.

2010) (an official capacity suit is treated as a suit against the entity). RLUIPA was

“enacted pursuant to Congress’s spending and commerce powers,” Wood, 753 F.3d at

902, and applies in relevant part to any “program or activity that receives Federal

financial assistance.” 42 U.S.C. § 2000cc1(b)(1).

The Ninth Circuit has explained that because individual employees are not the

governmental “recipients” of federal funds, they are not liable in their individual

capacities under RLUIPA. See Wood, 753 F.3d at 904 (“[T]here is nothing in the

language or structure of RLUIPA to suggest that Congress contemplated liability of

government employees in an individual capacity .. .. The statute does not authorize

suits against a person in anything other than an official or governmental capacity, for it

is only in that capacity that the funds are received.”). Here, Plaintiff has explicitly sued

REPORT AND RECOMMENDATION- 45

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page 46 of 49

the defendants in their individual capacities only and therefore his claims under RLUIPA

may not be maintained.

Furthermore, the Ninth Circuit has held that RLUIPA claims may proceed only for

injunctive relief against defendants acting within their official capacities. See Wood, 753

F.3d at 904; see also Holley v. Cal. Dep’tofCorr., 599 F.3d 1108, 1114 (9th Cir. 2010)

(“The Eleventh Amendment bars [a prisoner’s] suit for official-capacity damages under

RLUIPA.”). Plaintiffs complaint seeks only money damages, not injunctive relief, with

respect to his remaining claims. Thus, for this reason as well, Plaintiffs RLUIPA claims

may not be maintained.

Accordingly, Defendants’ motion for summary judgment should be GRANTED

and Plaintiffs motion for summary judgment should be DENIED with respect to

Plaintiffs RLUIPA claims.

Qualified Immunity

Defendants also argue they are entitled to qualified immunity with respect to

Plaintiffs claims.

Unless plaintiff makes a two-part showing, qualified immunity shields government

officials from liability. The plaintiff must show both: the official(s) violated a federal

statutory or constitutional right, and - at the time of the alleged act or failure to act there

was clearly established law that defined the contours of the federal right objectively

putting the official(s) on notice - i.e., every reasonable official would understand that

what they are doing is unlawful. Escondido v. Emmons, 139 S.Ct. 500 (2019); District of

Columbia v. Wesby, 138 S.Ct. 577, 589 (2018).

REPORT AND RECOMMENDATION- 46

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page 47 of 49

When qualified immunity is reviewed in the context of a defense motion for

summary judgment, the evidence must be considered in the light most favorable to the

plaintiff with respect to central facts. Toian v. Cotton, 572 U.S. 650, 657 (2014) (per

curiam). If there is a genuine issue of material fact concerning both: (1) Whether it

would be clear to a reasonable officer that their conduct was unlawful under the

circumstances they confronted, and (2) Whether the defendant’s conduct violated a

constitutional right” then summary judgment granting qualified immunity is not

appropriate. Bonivertv. City of Clarkston, 883 F.3d 865, 871-72 (9th Cir. 2018).

To determine whether there was clearly established law, the Court has stated,

“[wjhile there does not have to be a case directly on point, existing precedent must

place the lawfulness of the particular [action] beyond debate”; and the Court has also

observed, “there can be the rare obvious case, where the unlawfulness of the officer’s

conduct is sufficiently clear even though existing precedent does not address similar

circumstances.” Wesby, 138 S.Ct. at 590. A clearly established right exists if “controlling

authority or a robust consensus of cases of persuasive authority” have held, on facts

that are close or analogous to the current case, that such a right exists. Hines v.

Youseff, 914 F.3d 1218, 1229 (9th Cir. 2019).

As discussed above, after viewing the facts in the light most favorable to Plaintiff,

the Court has found that Defendants are entitled to summary judgment on the merits.

Therefore, as Defendants have established the absence of a Constitutional or federal

statutory violation, they are also entitled to summary judgment on qualified immunity

grounds.

REPORT AND RECOMMENDATION- 47

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page 48 of 49

In Forma Pauperis Status on Appeal

In forma pauperis status on appeal shall not be granted if the district court

certifies “before or after the notice of appeal is filed” "that the appeal is not taken in good

faith[.]” Fed. R. App. P. 24(a)(3)(A); see also 28 U.S.C. § 1915(a)(3). A plaintiff satisfies

the “good faith” requirement if he seeks review of an issue that is “not frivolous,” and an

appeal is frivolous where it lacks any arguable basis in law or fact. Gardner v. Pogue

558 F.2d 548, 551 (9th Cir. 1977); Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Here, as noted above, plaintiff has failed to identify material issues of fact to

defeat summary judgment on all of his claims. Accordingly, the undersigned

recommends plaintiffs in forma pauperis status be revoked for purposes of any appeal.

CONCLUSION

Based on the foregoing, the undersigned recommends that Defendants’ motion

for summary judgment (Dkt. 44) be GRANTED in its entirety and Plaintiffs motion for

summary judgment (Dkt. 48) be DENIED in its entirety.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil

Procedure, the parties shall have fourteen (14) days from service of this Report to file

written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a

waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985).

Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the

REPORT AND RECOMMENDATION- 48

Case 3:18-cv-05427-TL Document 58 Filed 02/24/21 Page 49 of 49

matter for consideration on March 12, 2021, as noted in the caption.

DATED this 24th day of February, 2021.

Theresa L. Fricke

United States Magistrate Judge

REPORT AND RECOMMENDATION- 49

Case 3:18-cv-05427-TL Document 58-1 Filed 02/24/21 Page lot 2

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JESS RICHARD SMITH ,

Case No. 3:18-cv-05427-RAJ-TLF

Plaintiff,

ORDER ADOPTING REPORT AND

RECOMMENDATION

SGT. ELLIS ,etal.

Defendants.

The Court, having reviewed the Report and Recommendation of Judge Theresa

L. Fricke, United States Magistrate Judge, objections to the report and

recommendation, if any, and the remaining record, does hereby find and ORDER:

(1) The Court adopts the Report and Recommendation;

(2) Defendants’ motion for summary judgment (Dkt. 44) is GRANTED in its entirety

and Plaintiffs motion for summary judgment (Dkt. 48) is DENIED in its entirety

and all claims against Defendants are DISMISSED WITH PREJUDICE;

(3) The Clerk shall enter judgment and close the case;

(4) Plaintiffs in forma pauperis status is REVOKED for purposes of any appeal; and

ORDER ADOPTING REPORT AND

RECOMMENDATION -1

Case 3:18-cv-05427-TL Document 58-1 Filed 02/24/21 Page 2 of 2

(5) The Clerk is directed to provide a copy of this order to all parties.

Dated this__ day of

, 2021.

Richard A. Jones

United States District Judge

ORDER ADOPTING REPORT AND

RECOMMENDATION - 2

Case 3:18-cv-05427-TL Document 58-2 Filed 02/24/21 Page 1 of 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JUDGMENT IN A CIVIL CASE

Jess Richard Smith

Plaintiff,

CASE NO. 3:18-CV-05427-RAJ-TLF

Sgt. Ellis, et al.

Defendant.

□

Jury Verdict. This action came before the Court for a trial by jury. The issues

have been tried and the jury has rendered its verdict.

Decision by Court. This action came to consideration before the Court. The

issues have been considered and a decision has been rendered.

THE COURT HAS ORDERED THAT:

The Report and Recommendation is adopted and approved. Plaintiffs 42 U.S.C.

§ 1983 complaint is DISMISSED with prejudice. Plaintiffs in forma pauperis status is

revoked on appeal.

Dated this__day of [Pick the date].

William M. McCool

Clerk of Court

s/Enter Deputy name.

Deputy Clerk

Case 3:18-cv-05427-TL Document 61 Filed 04/25/22 Page lot 5

United States District Court

Western District of Washington

at Tacoma

JESS RICHARD SMITH,

Plaintiff,

SGT. ELLIS et al.,

CASE NO. 3:18-CV-05427-TL

Order Adopting Report and

Recommendation and

Overruling Objections

Defendants.

This matter comes before the Court on the Report and Recommendation of the Honorable

Theresa L. Fricke, United States Magistrate Judge (Dkt. No. 58) (“Report and

Recommendation”), Plaintiff Jess Richard Smith’s objections to the Report and

Recommendation (Dkt. No. 59), and Defendants’ Response to Plaintiffs Objections (Dkt. No.

60). Having reviewed the Report and Recommendation, the objections filed by Plaintiff, the

response filed by Defendants, and the remaining record, the Court ADOPTS the Report and

Recommendation of the United States Magistrate Judge, GRANTS Defendants’ Motion for

Order Adopting Report and

Recommendation and

Overruling Objections -1

Case 3:18-cv-05427-TL Document 61 Filed 04/25/22 Page 2 of 5

Summary Judgment (Dkt. No. 44), DENIES Plaintiffs Motion for Summary Judgment (Dkt. No.

48), and DISMISSES the case.

A district court “shall make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made,” and “may accept,

reject, or modify, in whole or in part, the recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (the Court “must determine de novo any

part of the magistrate judge’s disposition that has been properly objected to.”). A party properly

objects when he or she files “specific written objections” to the report and recommendation as

required under Federal Rule of Civil Procedure 72(b)(2).

The Court has reviewed the Report and Recommendation as well as Mr. Smith’s

objections. Almost the entirety of Mr. Smith’s objections focuses on his contention that Judge

Fricke did not view the facts in the light most favorable to the non-moving party and discusses

the material facts Mr. Smith disputes. As an initial matter, it is clear that Judge Fricke considered

the facts in the appropriate light. See, e.g., Dkt. No. 58, at 36 (no material dispute on any

confiscation of photographs that may have occurred, even accepting Mr. Smith’s factual

contentions).

In any case, even when viewed in the light most favorable to Mr. Smith, there is no

genuine dispute of material fact. For example, while Mr. Smith disputes many of the facts

discussed in the Report and Recommendation, he does not and cannot dispute the following facts

he has admitted in his Motion for Summary Judgment, Dkt. No. 48, and his Brief in Opposition

to Defendants’ Motion for Summary Judgment and his accompanying declaration, Dkt. No. 49:

(1) on February 29, 2016, Mr. Smith praised God “in a loud manner” and “again yelled religious

praises,” id. at 7, 29; (2) “shortly thereafter, Sgt. Ellis and CUS Jones[ ] showed up at Smith’s

cell front and began questioning him[ ] about being under the influence of drugs,” id. at 9, 30;

Order Adopting Report and

Recommendation and

Overruling Objections - 2

Case 3:18-cv-05427-TL Document 61 Filed 04/25/22 Page 3 of 5

see also Dkt. No. 48, at 4; (3) Mr. Smith was then removed from his ceil and taken to the

medical floor, Dkt. No. 49, at 30; (4) during his absence from his cell, several items were

confiscated during a search, including his Bible, Dkt. No. 48, at 5; (5) his Bible “was missing the

tab[l]e of contents and the back page of the subject index,”1 id., and was, therefore, altered; and

(6) Mr. Smith received a replacement Bible on March 12, 2016, id. at 14.

Also, Mr. Smith does not dispute in any of his pleadings Sergeant Ellis’s observation of

Mr. Smith’s physical condition during the February 29 questioning (i.e., that Mr. Smith’s eyes

were dilated, he was speaking very fast, appeared jittery, and was not standing still), Dkt. No. 45

at 3, but explains it was a “misinterpretation of Smith’s excitement.” Dkt. No. 49, at 7. Mr. Smith

does not allege that Sergeant Ellis made any comments regarding Mr. Smith’s religion or what

he was saying; rather, he concedes that Sergeant Ellis’s comments and questioning were focused

on Mr. Smith’s potential drug use. See Dkt. No. 48, at 4; Dkt. No. 49, at 9, 30. Mr. Smith does

not dispute that altered property is not allowed under Department policy. Dkt. No. 55-2, at 4.

Further, Mr. Smith does not dispute that a number of surge protectors and power cords that had

black soot on them and areas where they were melted were found in his cell on February 29. Dkt.

No. 45, at 5. Sergeant Ellis states that: “arching” is “a known way where one can make a spark to

light something on fire without a match or lighter”; the power devices confiscated from

Mr. Smith’s cell showed signs that they were altered for arching; and Bible pages are frequently

used for rolling paper to smoke something. Id. These statements are also undisputed by

Mr. Smith.

All of these facts were considered in the Report and Recommendation. The Court finds

that the combination of all of these undisputed facts taken together are sufficient to support the

There is a dispute as to how altered the Bible was, but the only relevant fact for purposes of this inquiry is that the

Bible was altered.

Order Adopting Report and

Recommendation and

Overruling Objections - 3

Case 3:18-cv-05427-TL Document 61 Filed 04/25/22 Page 4 of 5

findings of law laid out in Magistrate Judge Fricke’s methodical and thorough forty-nine-page

Report and Recommendation. There is no genuine dispute of material facts, as the undisputed

facts show that Defendants acted within the bounds of their authority, and any disputed facts are

not material to Mr. Smith’s claims.

The final paragraph of Mr. Smith’s objection asserts that the Report and

Recommendation failed to rule on his state law claims. Dkt. No. 59, at 13. However, the

Defendants against whom Mr. Smith raised state law claims (i.e., Wayman, Amsbury, Brandt,

McGinnis, L’Heureux, McTarsney, and Dahne, see Dkt. No. 5 at 34-43 (t1f 65-71)) were

dismissed from the case by a May 9, 2019 order of the Court. Dkt. No. 27. With the dismissal of

the remaining federal claims—which constitutes all the claims over which this Court had original

jurisdiction—in Mr. Smith’s Complaint against the remaining defendants by this Order, the

Court declines to exercise supplemental jurisdiction of any timely and viable state law claims

Mr. Smith may have asserted, under the principles of economy, convenience, fairness, and

comity. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 & n.7

(1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the

balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy,

convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the

remaining state law claims.” (citing Mine Workers v. Gibbs, 383 U.S. 715 (1966))), superseded

on other grounds by 28 U.S.C. § 1447(c). This case is still in its early stages, relatively speaking,

and any state law claims that Mr. Smith may have remaining are best addressed by state courts

rather than federal courts. See, e.g., Goon v. Coleman, 2020 WL 363377, at *15 (W.D. Wash.

Jan. 21, 2020) (“Now that the court has granted summary judgment against Mr. Goon’s federal

claims, all that remains of this case are four Washington state tort claims .... Thus, comity

Order Adopting Report and

Recommendation and

Overruling Objections - 4

Case 3:18-cv-05427-TL Document 61 Filed 04/25/22 Page 5 of 5

weighs in favor of dismissing this case so that it may be refiled in state court.”)- Mr. Smith may

File a new complaint asserting state law claims more clearly in state court if he so wishes.

For the reasons stated above, the Court ORDERS as follows:

1. The Court ADOPTS the Report and Recommendation;2

2. Defendants’ Motion for Summary Judgment (Dkt. No. 44) is GRANTED in its

entirety, and Plaintiffs Motion for Summary Judgment (Dkt. No. 48) is denied in

its entirety;

3. All federal claims against Defendants are DISMISSED with prejudice, and any state

law claims against Defendants are DISMISSED without prejudice;

4. The Clerk shall ENTER judgment and CLOSE the case; and

5. The Clerk is DIRECTED to send copies of this Order to all parties.

Dated this 25th day of April 2022.

Tana Lin

United States District Judge

2 The Court defers decision on the Report and Recommendation’s suggestion that Mr. Smith’s in forma pauperis

status be revoked. Dkt. No. 58, at 48. The Court may revoke in forma pauperis status if it determines that an appeal

would be frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis

if the trial court certifies in writing that it is not taken in good faith.”); Fed. R. App. P. 24(a)(3)(A) (district court

may make the certification before or after an appeal is filed).

Order Adopting Report and

Recommendation and

Overruling Objections - 5

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.