United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION REGARDING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.
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
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).
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).
Plaintiff's Summary Judgment Motion
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),