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Entler v. Gregoire

United States District Court, E.D. Washington

July 10, 2019




         BEFORE THE COURT is Defendants' Motion for Summary Judgment. ECF No. 145. This matter was submitted for consideration without oral argument. The Court has reviewed the record and files herein and is fully informed.


         This case was filed on October 29, 2012, against six government officials, including the former Governor of Washington. ECF No. 1. In essence, Plaintiff alleged he was disciplined for his threats under a Washington Department of Corrections regulation that bars prisoners from intimidating or coercing prison staff. The Court dismissed the federal claims based on the failure to state an actionable First Amendment claim and alternatively, the prison officials were entitled to qualified immunity. ECF Nos. 57, 61, 77. Mr. Entler then appealed. ECF No. 79. The Ninth Circuit reversed the dismissal of Mr. Entler's claims, in part. Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017); ECF No. 90. With regard to plaintiff's threats to bring civil litigation, the Ninth Circuit disagreed with the district court's conclusions that plaintiff had not alleged an actionable First Amendment retaliation claim and that, alternatively, the prison officials were entitled to qualified immunity. Id. The Ninth Circuit held that threats to sue fall within the purview of the constitutionally protected right to file grievances and that in 2012 it was clearly established that plaintiff had a right to file his grievances and pursue civil litigation. Id. However, with regard to Plaintiff's threat to file a criminal complaint the Ninth Circuit held that defendants were entitled to qualified immunity because it was not clearly established at the time that the threat to file a criminal complaint was constitutionally protected conduct. Id.

         On April 3, 2018, the Mandate was filed which remanded the case back to this Court for further proceedings in accordance with the decision of the Ninth Circuit. ECF No. 96.

         On May 8, 2018, Defendants filed a motion for judgment on the pleadings, contending that Plaintiff failed to sufficiently allege their personal participation in the complained of acts. ECF No. 98. Mr. Entler sought, and the Court granted several extensions of time for him to respond and/or amend his complaint. ECF Nos. 105, 107, 112, 117, 124, 128, 130, and 132.

         Ultimately, on January 31, 2019, Mr. Entler filed a Second Amended Complaint (SAC). ECF No. 133. In the SAC, Mr. Entler alleges the Defendants violated his “First Amendment rights to Petition the Government for Redress of Grievances (Unlawful Retaliation)” and “State Law claim of Leading Organized Crime RCW 9A.80.100.” Id. at 2-3. Substantively, Mr. Entler claims that he exercised his First Amendment rights by sending kites to various individuals threatening to: e.g., “sue you”, “seek legal redress”, “file a grievance”, “file a formal complaint”, and “initiate litigation”. As a result, he claims Defendant Clark issued four infractions against him that resulted in two disciplinary hearings, one on August 1, 2012 and one on August 15, 2012. Id. at 4-7, ¶¶ B.7, C.6, C.10, D.3. At the August 1, 2012 hearing, Mr. Entler claims Hearing Officer Jackson found intimidation and sentenced him to “fifteen days of lost big yard and gym time.” At the August 15, 2012 hearing, Mr. Entler claims Defendant Hearing Officer Pierce found harassment and sentenced him to “five days cell confinement” and warned him not to badger WSP employees for thirty days or Mr. Entler would receive a serious infraction.” Id. at 6-7, ¶¶ C.7, C.12, D.4. Mr. Entler's SAC also includes allegations of personal participation by the named Defendants. Id. at 7-12.

         On April 5, 2019, Defendants filed a Motion for Summary Judgment. ECF No. 145. Defendants filed the necessary Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) notice, as well. ECF No. 150. Mr. Entler filed his opposition to Defendants' Motion for Summary Judgment, ECF No. 161, his Statement of Facts in Opposition, ECF No. 162, and a Supplement to his Opposition, ECF No. 164. Defendants filed their Reply, Reply Statement of Facts and the transcript of Mr. Entler's deposition. ECF Nos. 169, 170, 171-1.


         A. Standard of Review on Motion for Summary Judgment

         The Court may grant summary judgment in favor of a moving party who demonstrates “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the court must only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify specific facts showing there is a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. Per Rule 56(c), the parties must support assertions by: “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

         For purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Liberty Lobby, Inc., 477 U.S. at 248. Further, a material fact is “genuine” only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The Court views the facts, and all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         B. Lack of Personal Participation

          Defendants Gregoire, Warner and Sinclair seek summary judgment for lack of any showing that they personally participated in depriving Mr. Entler of his constitutional rights.

         1. Defendant Christine Gregoire

         Mr. Entler's SAC alleges that Christine Gregoire, the former Governor of the State of Washington, sent Mr. Entler a letter stating that she would not intervene to protect him against prison-employee retaliation and warned that he should “choos[e] [his] battles carefully.” ECF No. 133 at 7. Mr. Entler alleges that Governor Gregoire knew or reasonably should have known that prison employees would read or be informed about her letter, that it could reasonably be viewed as condoning retaliation, and therefore, the retaliation he suffered could reasonably be traceable to Governor Gregoire's custom and policy. Id. at 7-8. In his opposition to Defendants' motion, Mr. Entler points to the June 20, 2012 letter and another letter dated August 16, 2012 from Governor Gregoire to show that she refused to get involved even though she had a duty to ...

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