Opinion
Case No. 3:18-cv-01617-SB
03-02-2020
RICADO WRAY, Plaintiff, v. SHERIFF MARK GARTON; SERGEANT WESTFALL; DEPUTY SMITH; DEPUTY HOFFERBER; DEPUTY COOK; and DEPUTY SMALLEY, Defendants.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Ricado Wray ("Wray"), a self-represented litigant, filed this action against defendants Sheriff Garton, Sergeant Westfall, and Deputies Hofferber, Cook, and Smalley (collectively, "Defendants"), alleging violations of his First, Fifth, and Fourteenth Amendments rights pursuant to 42 U.S.C. § 1983 ("Section 1983"). On August 26, 2019, Defendants filed a motion for summary judgment. (ECF No. 14.) Although the Court issued a Summary Judgment Advice Notice (ECF No. 17), granted Wray's motion for extension of time to file a response (ECF No. 19), and sua sponte provided additional time to respond (ECF No. 21), Wray did not respond to Defendants' motion.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. For the reasons explained below, the Court recommends that the district judge grant Defendants' motion for summary judgment.
BACKGROUND
The Salem Police Department arrested Wray and lodged him at the Polk County Jail on February 24, 2017. (Decl. of Jeff Isham ("Isham Decl.") Supp. Defs.' Mot. Summ. J. Ex. 1, ECF No. 15.) Wray's allegations arise from his time spent in pretrial detention at the Polk County Jail, as detailed below.
ANALYSIS
I. STANDARD OF REVIEW
Summary judgment is appropriate if "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). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted). /// /// /// ///
II. DISCUSSION
Defendants move for summary judgment on all of Wray's claims.
A. Deputy Cook
Wray alleges that "Deputy Cook denied [him] access to courts by denying [him] contact information to courts and also denying [him] copies of legal material" on May 12, 2017. (Pl.'s First Am. Compl. ("FAC") Att. 1 at 3.) Defendants move for summary judgment, arguing that "[Wray's] claim against Deputy Cook is [that he] gave him the wrong address for the Oregon State Bar and, as a result, the letter to the bar was returned to him[,]" and therefore Wray's right to access the courts was not implicated. (Defs.' Mot. Summ. J. at 5-6.) The Court agrees.
An inmate's right of access to courts is a "First Amendment right subsumed under the right to petition the government for redress of grievances." Johnson v. Noack, No. 3:16-cv-00443-SB, 2018 WL 3340876, at *3 (D. Or. July 6, 2018). The right of access to courts "requires prison authorities to assist inmates in the preparation of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). However, "[b]ecause Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Lewis v. Casey, 518 U.S. 343, 351 (1996). As such, "the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." Id.
Wray's claim is based on his failed attempt to send a letter to the Oregon State Bar. Wray does not allege that he was not able to resend the letter to the correct address, nor that the return of his original letter impacted his ability to access the courts. Indeed, even if Wray was trying to obtain counsel by writing to the Oregon State Bar, the record is clear that Wray was represented by counsel in his criminal case at the time of the mail incident. See Isham Decl. Ex. 3 at 5 (noting that Wray was appointed counsel on May 3, 2017, and remained represented by the same attorney until Wray's request for a new attorney on August 24, 2017). Wray has not alleged that Deputy Cook's actions hindered Wray's efforts to pursue any legal claim, nor provided any evidence in support of such a theory. Accordingly, the Court recommends that judgment enter for Deputy Cook.
B. Sergeant Westfall
Wray alleges that Sergeant Westfall denied him "access to court by intentionally and deceptionally [sic] [giving him] disinformation about the absence of Polk Co. legal coun[sel]." (FAC Att. 1 at 1.) Defendants move for summary judgment, arguing that on the date of the alleged violation, Wray was represented by counsel and, therefore, Sergeant Westfall could not have violated Wray's constitutional right to access the courts. (Defs.' Mot. Summ. J. at 8; see also Isham Decl. Ex. 3 at 6 (reflecting that Jon Weiner represented Wray on September 12, 2017)). The Court agrees. See Storseth v. Spellman, 654 F.2d 1349, 1343 (9th Cir. 1981) ("Appointed counsel, whether state or court provided, offers a meaningful, and certainly the best, avenue of access to an indigent inmate. An attorney is in a better position than the inmate or inmate writ writer to promote efficient and skillful handling of the inmate's case."); Terwilleger v. Washington, No. 3:17-CV-05360-RJB-DWC, 2018 WL 6331621, at *4 (W.D. Wash. Oct. 30, 2018) ("Thus, because Plaintiff was represented by counsel in his underlying criminal case, Plaintiff cannot show he received inadequate access to the courts."). Accordingly, the district judge should enter judgment for Sergeant Westfall on Wray's claim. /// ///
C. Deputy Smalley and Sergeant Westfall
Wray alleges that Deputy Smalley "denied [him] access to medical care for an infected finger" at the direction of Sergeant Westfall. Defendants move for summary judgment on the ground that the record demonstrates that they timely provided Wray with medical care for his infected hang nail. (Defs.' Mot. Summ. J. at 10.)
Wray alleges that he was "told in order to receive medical care and treatment for a potential life threatening condition, that [he] had to agree to sign a consent form." (Pl.'s Compl. Att. 1 at 1.) After the alleged incident, Wray filed a grievance explaining that he could have lost his "finger or even [his] life[]" when he requested medical treatment on December 23, 2017, but was informed he could not receive treatment unless he signed a privacy policy. (Isham Decl. Ex. 4.) Wray received treatment the following day. (Isham Decl. Ex. 6 (showing that on December 24, 2017, Wray received treatment at the jail for an "infected right smallest finger[,]" due to a "pulled hang nail on Thursday" that by the time of the visit was "red and swollen to the middle knuckle")).
A pretrial detainee must establish the following elements to prove an inadequate medical care claim against an individual defendant:
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendants caused the plaintiff's injuries.Gordon v. Cty. of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018). "With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily turn on the facts and circumstances of each particular case." Id. (citation and quotation marks omitted). A plaintiff must "prove more than negligence but less than subjective intent—something akin to reckless disregard." Id.
The record demonstrates that Wray received medical care for his infected hang nail within twenty-four hours of his request. No reasonable jury could find that Defendants' response was constitutionally inadequate, and therefore Defendants are entitled to summary judgment. See Hodges v. Corizon Health, Inc., No. 6:15-cv-521-AC, 2019 WL 7476444, at *16 (D. Or. Sept. 10, 2019) (granting the defendants' motion for summary judgment based on finding that the defendants' failure to provide individual in custody with medication for a few days did not meet "the level necessary to establish reckless disregard or deliberate indifference"); Self v. Warden, MCC, No. 3:18-cv-01451-LAB-MDD, 2018 WL 4502370, at *6 (S.D. Cal. Sept. 19, 2018) (dismissing inadequate medical care claims based on holding that two-day delay in providing pain medication to individual in custody was not objectively unreasonable).
D. Deputies Hofferber and Smith
1. Racial Harassment
Wray alleges that Deputies Hofferber and Smith "systematically harassed[,]" threatened him with "racial remarks[,]" and "target[ed] [him] as an African American." (FAC Art. 1 at 2.) The only specific racial remarks that Wray identifies relate to an incident in which another deputy referred to Wray as "boy" and "angrily suggested [Wray] look-up boy in the dictionary[,]" and Smith later asked Wray why he continued to grieve that incident. (Isham Decl. Ex. 7.) It appears that Wray has not named the deputy who made the racial remarks as a defendant in his amended complaint. Even if Deputy Smith vaguely endorsed another deputy's racial epithets, the statements Wray identifies do not rise to the level of a constitutional violation. See Hackworth v. Torres, No. 1:06-cv-00773-OWW-GSA-PC, 2008 WL 2397433, at *3 (E.D. Cal. June 10, 2008) (holding that deputy's use of racial epithets was "not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983"); Taylor v. Wolf, No. C 05-71 JW, 2006 WL 1233144, at *1 (N.D. Cal. May 9, 2006) ("[A]llegations of verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C § 1983 . . . . even if the verbal harassment is racially motivated.").
2. Access to the Courts
Wray alleges that Deputy Hofferber "confiscated [his] dictionary and legal folders, [t]hus denying [him] the ability to effectively petition the courts and to have a legal tool to help [him] in [his] addressing the criminal charges against [him]." (FAC Att. 1 at 2.) The record shows that on February 10, 2018, Deputies Smith and Hofferber conducted a dorm search and confiscated Wray's legal folder and a dictionary. (Isham Decl. Ex. 8.) Defendants move for summary judgment on the ground that they could not have interfered with Wray's access to the courts because Wray "was represented by counsel at the time of his alleged inability to access the Courts." (Defs.' Mot. Summ. J. at 12.)
Defendants are correct that Wray was represented by counsel on February 10, 2018, the date of the alleged incident. See Isham Decl. Ex. 3 at 6 (showing that Wray was appointed counsel on September 12, 2017, substituted counsel on November 6, 2017, and remained represented until he pleaded guilty on March 14, 2018). As such, Wray cannot demonstrate that he was unable to access the courts as a result of the incident. See Terwilleger, 2018 WL 6331621, at *4 ("Thus, because Plaintiff was represented by counsel in his underlying criminal case, Plaintiff cannot show he received inadequate access to the courts."); see also Bowman v. Hayes, No. 16-381 RSM-BAT, 2017 WL 1593031, at *4 (W.D. Wash. Mar. 13, 2017) (granting the defendant's motion to dismiss pretrial detainee's access to courts claim where he was represented by an attorney at the time of the alleged constitutional violation). In addition, Wray has not alleged that the removal of his legal folder and dictionary hindered Wray's efforts to pursue any specific legal claim, nor provided any evidence in support of such a theory. Accordingly, the Court recommends that the district judge grant Defendants' motion.
3. Retaliation
Wray also alleges that Deputy Smith "threatened to retaliate . . . if [he] continued to" pursue his grievances against another deputy at the jail. (FAC Att. 1 at 2; see also Isham Decl. Ex. 7 (explaining that Deputy Smith asked "why [Wray was] still grieving [another deputy's] remark[]")). Defendants argue that Wray has not established the necessary elements of a First Amendment retaliation claim.
Within the prison context, a First Amendment retaliation claim requires 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); see also Brodheim v. Cry, 584 F.3d 1262, 1269 n.3 (9th Cir. 2009) ("On summary judgment . . . the plaintiff must demonstrate there is a triable issue of material fact on each element of his claim, as opposed to merely alleging facts sufficient to state a claim."). A plaintiff need not show that "his speech was actually inhibited or suppressed," but rather that the adverse action at issue "would chill or silence a person of ordinary firmness from future First Amendment activities." Rhodes, 408 F.3d at 568-69.
Wray alleges that Deputy Smith asked him about why he was still grieving another deputy's conduct, and threatened to target him for rule violations if he continued to grieve the conduct. (FAC Att. 1 at 2.) The Court finds that no reasonable jury could conclude that Deputy Smith's vague threat of future rule violations, which never materialized, would chill or silence a person of ordinary firmness from pursuing a grievance (and indeed, the record demonstrates that Wray was not deterred from accessing or completing the grievance process here). As such, Deputy Smith's comments do not rise to the level of a First Amendment retaliation claim, and the district judge should grant Defendants' motion. See Woodward v. Afify, 14-CV-00856-RJA-MJR, 2018 WL 9875253, at *11 (W.D.N.Y. Sept. 28, 2018), adopting report and recommendation, 2019 WL 5394217 (Oct. 22, 2019) (holding that non-specific verbal threats in the prison context "do not constitute adverse actions sufficient to make a claim of retaliation"); Quezada v. Roy, No. 14 Civ. 4056(CM), 2015 WL 5970355, at *23 (S.D.N.Y. Oct. 13, 2015) (dismissing First Amendment retaliation claims based on prison officials' verbal harassment and vague threats because the prison officials' "disgusting, offensive and highly unprofessional conduct does not rise to the level of a constitutional tort (which is to say, it is not sufficiently serious to deter a person of ordinary firmness from continuing to exercise his First Amendment rights)").
E. Sheriff Garton
Wray alleges that he "wrote a ten page letter to Sheriff Garton asking and pleading for his help in an official capacity" and that his failure to intervene resulted in the violations Wray alleges herein. (FAC Att. 1 at 1; see also Decl. of Mark Garton Supp. Defs.' Mot. Summ. J. ¶ 4, ECF No. 16 (explaining that Sheriff Garton "never received, saw nor read" the letter Wray alleges he sent)). Defendants move for summary judgment, arguing that Wray cannot "demonstrate any underlying constitutional violations." (Defs.' Mot. Summ. J. at 14.) The Court agrees. In light of the fact that Wray has failed to establish any constitutional violations, judgment should enter on Wray's claim that Sheriff Garton failed to respond to Wray's letter.
CONCLUSION
For the reasons set forth above, the Court recommends that the district judge GRANT Defendants' motion for summary judgment (ECF No. 14).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 2nd day of March, 2020.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge