United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
J. RICHARD CREATURA, Magistrate Judge.
The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR1, MJR3 and MJR4.
Currently before the Court is defendants' motion for summary judgment (Dkt. 17). Plaintiff did not file a response. Defendants argue that they are entitled to summary judgment based on lack of personal participation and because plaintiff fails to show actual injury (Dkt. 17, p. 7). The Court recommends granting defendants' motion because plaintiff does not show that any named defendant denied him access to courts.
STANDARD OF REVIEW
In federal court, summary judgment is required pursuant to Fed.R.Civ.P. 56(a) if the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine dispute as to any material fact. Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997). Once a party has moved for summary judgment Fed.R.Civ.P. 56(c) requires the nonmoving party to go beyond the pleadings and identify facts that show that a genuine issue for trial exists. Celotex Corp. v Catrett, 477 U.S. 317, 323-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To state a claim pursuant to 42 U.S.C. § 1983, a complaint must allege: (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 the appropriate avenue to remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985). Initially, if plaintiff moves for summary judgment, plaintiff has the burden of presenting admissible evidence to support each of these elements. See Lujan v. Wildlife Fed., 497 U.S. 871, 888-89 (1990).
Defendants' assertions of fact are not contested because plaintiff failed to respond to the motion for summary judgment. Accordingly, the Court accepts defendants' uncontradicted facts.
The Pierce County Superior Court convicted plaintiff of three murders and sentenced him to life in prison in 2012 (Dkt. 17, p. 2). The Pierce County Prosecutor's Office sent the Department of Corrections a letter explaining that plaintiff's victims were potentially "Hilltop Crips" gang members and that plaintiff had connections to the "Compton Crips" (Dkt. 17-1 p. 10). The prosecutor's office suggested out-of-state placement for plaintiff. The prosecutor's suggestion was based on security considerations. The last time plaintiff was housed in the state of Washington, "Hilltop Crips" assaulted him (Dkt. 17-1 p. 10).
On July 11, 2012, the Department of Corrections received a letter from plaintiff asking that he be allowed to serve his sentence in Nevada (Dkt. 17-1 p. 12). Defendant Rohrer responded on July 18, 2012, telling plaintiff that she would contact Nevada, but that nothing could move forward until plaintiff had been classified (Dkt. 17-1 p. 14).
According to defendant Rohrer, Nevada decided not to house plaintiff based on security concerns (Dkt. 17-1 p. 4 ¶ 9). The Department of Corrections transferred plaintiff to California on July 12, 2013 (Dkt. 17-1 p. 4 ¶ 9).
On March 18, 2014, defendant Rohrer received a letter from plaintiff asking that he be either returned to Washington or transferred to Nevada. Plaintiff did not mention anything about access to courts or legal material in that correspondence (Dkt. 17-1, pp. 20-22). Attached to plaintiff's letter was a response to a letter he had sent to California asking that he be returned to Washington. Again, plaintiff's correspondence did not mention any problem with legal access (Dkt. 17-1 p. 24).
In June 2014, plaintiff sent a letter to the Department of Correction's grievance program personnel concerning his out of state placement (Dkt. 17-1 p. 28). Mr. Caldwell, who is not a named defendant, responded and provided plaintiff with a grievance form (Dkt. 17-1 p. 30). Once again, plaintiff did not mention access to courts or trouble getting legal materials in his letter.
On July 9, 2014, plaintiff filed a grievance. On page three of plaintiff's grievance, for the first time, plaintiff raises an issue regarding access to courts and legal materials (Dkt. 17-1 pp. 32-34). On August 22, 2014, John Campbell responded to plaintiff's letter and grievance. Mr. Campbell failed to respond to the portion of the ...