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Alverto v. Henderling

United States District Court, W.D. Washington, Seattle

September 4, 2019

MICHELLE HENDERLING, et al. Defendants.



         Before the Court is plaintiff's Amended Complaint, Dkt. 12, and motion for summary judgment against the two remaining defendants Michelle Henderling and Richard Semp. Dkt. 26. The case has a somewhat involved procedural history. In September, 2018, plaintiff, a Washington State Department of Corrections prisoner filed a complaint seeking 42 U.S.C. § 1983 relief. Dkt. 6. Plaintiff alleged defendants Michelle Henderline, Stephen Ewing, Richard Semp, and Eric Jackson made false statements that were used to support disciplinary action against him. As relief he sought dismissal of the disciplinary guilty findings and monetary damages.

         Pursuant to 8 U.S.C. § 1915A(a), the Court reviewed the complaint and recommended dismissing it for failure to state a claim upon which relief may be granted, or that seek monetary relief from defendants who are immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). Dkt. 7.

         On January 11, 2019, the assigned District Judge issued an Order dismissing with prejudice plaintiff's PREA claims, dismissing without prejudice plaintiff's retaliation claims, and granting plaintiff leave to file an amended complaint. Dkt. 11. On January 29, 2019, plaintiff filed an amended complaint. Dkt. 12. The amended complaint again named as defendants Michelle Henderline, Stephen Ewing, Richard Semp, and Eric Jackson. Id. It also added a new defendant Michelle Wood, the Associate Superintendent of plaintiff's prison. Id. at 7. The amended complaint again was based upon a confrontation plaintiff had with Majed, another inmate. The confrontation led to disciplinary hearings and the imposition of sanctions against plaintiff. Plaintiff alleged defendants imposed sanctions against him based upon false information, and a poor investigation. In essence plaintiff alleged defendants should not have sanctioned him and the sanctions were imposed in retaliation to a PREA complaint plaintiff made.

         On March 28, 2019, the assigned District Judge entered an order dismissing with prejudice plaintiff's retaliation claims against defendants Ewing, Woods and Jackson. Dkt. 16. The District Judge also dismissed plaintiff's other miscellaneous constitutional claims and his putative state law claims. Id. However, the Court declined to dismiss plaintiff's retaliation claims against defendants Semp and Henderling. Id. In specific, the District Judge found plaintiff's allegation that Semp made a comment to plaintiff about Majed's action in an area in which other inmates could hear stated a claim that was sufficient to withstand summary dismissal. The District Judge also found plaintiff's claim Henderling retaliated against him by disciplining him based upon fabricated evidence and by responding to plaintiff's complaints about this by stating “Who cares, No. one care. Mistakes happen Get over it. I'm warning you no more grievances.” Accordingly, the sole defendants before the Court are Semp and Henderling and the sole claims against them is for retaliation as set forth above.


         A. Legal Standards

         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 probative evidence tending to support” the allegations in the complaint. Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990).

         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).

         B. Plaintiff's Summary Judgment Motion

         On August 3, 2019, plaintiff filed a motion for summary judgement in which he contends defendants Henderling and Sempt “took an adverse action against the plaintiff” because he engaged in protected conduct (filing of prison grievances) and that defendants' actions had a chilling effect and were undertaken for no legitimate penological objective. Id. at 1. Plaintiff also contends defendants are not entitled to qualified immunity. Id. In support of the motion, plaintiff alleges the following facts:

About June 16, 2018, homosexual prison offender, Arman Hussein Majed made sexually violent threats against Mr. Alverto.Dkt. 12 at 10-13. Plaintiff was placed in the segregated confinement pending a disciplinary hearing.
About June 19, 2018, Mr. Alverto filed a grievance against offender Majed under the Prison Rape Elimination Act (PREA), ...

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