United States District Court, E.D. Washington
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT; GRANTING DEFENDANT'S MOTION FOR SUMMARY
STANLEY A. BASTIAN UNITED STATES DISTRICT JUDGE
the Court are Plaintiff's Motions for Summary Judgment,
ECF No. 25, and Defendant's Cross-Motion for Summary
Judgment, ECF No. 27. The motions were heard without oral
argument. Plaintiff is proceeding pro se. Defendant
is represented by Assistant Attorney General Katherine J.
Clinton Heck, a prisoner in the custody of the Washington
State Department of Corrections, is bringing a claim under 42
U.S.C. § 1983, alleging that Defendant Michael Klemke
intentionally withheld his decision reversing Plaintiff's
disciplinary appeal so that Plaintiff would be transferred to
a harsher living condition at the Washington State
Penitentiary. Plaintiff alleges that this was done to chill
his efforts to pursue his grievances.
judgment is appropriate “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 showing the absence of a genuine issue of fact for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
An issue of material fact is genuine if there is sufficient
evidence of a reasonable jury to return a verdict for the
non-moving party. Thomas v. Ponder, 611 F.3d 1144,
1150 (9th Cir. 2010). The non-moving party cannot rely on
conclusory allegations alone to create an issue of material
fact. Hansen v. United States, 7 F.3d 137, 138 (9th
Cir. 1993). If the moving party meets its initial burden, the
non-moving party must then go beyond the pleadings and
“set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The parties must
support assertions by citing to particular parts of the
record or show that the materials cited do not establish the
absence or presence of a genuine dispute of material fact.
Fed.R.Civ.P. 56(c). However, a court may neither weigh the
evidence nor assess credibility; instead, “the evidence
of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.”
Anderson, 477 U.S. at 255; see also Cortez v.
Skol, 776 F.3d 1046, 1050 (9th Cir. 2015).
addition to showing there are no questions of material fact,
the moving party must also show it is entitled to judgment as
a matter of law. Smith v. Univ. of Wash. Law Sch.,
233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is
entitled to judgment as a matter of law when the non-moving
party fails to make a sufficient showing on an essential
element of a claim on which the non-moving party has the
burden of proof. Celotex, 477 U.S. at 323.
considering a motion for summary judgment, a court may
neither weigh the evidence nor assess credibility; instead,
“the evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his
favor.” Anderson, 477 U.S. at 255. When
parties file simultaneous cross-motions for summary judgment,
the court reviews each motion and the appropriate evidentiary
material identified in support of the motion separately,
giving the nonmoving party for each motion the benefit of all
reasonable inferences. Brunozzi v. Cable Commc'ns,
Inc., 851 F.3d 990, 995 (9th Cir. 2017).
have a First Amendment right to file prison grievances and to
pursue civil rights litigation to the courts. Rhodes v.
Robinson, 408 F.3d 559, 567 (9th Cir. 2005). Within the
prison context, in order to successfully bring a claim of
First Amendment retaliation, a prisoner must establish five
elements: (1) 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.
was previously housed at Airway Heights Corrections Center
(AHCC), a DOC facility in Airway Heights, Washington.
Defendant is a Correctional Program Manager at AHCC.
December 12, 2018, Plaintiff was told that he would be moving
to a different wing. He refused the cell assignment. As a
result, he was placed in administrative segregation and he
received a serious infraction. At the disciplinary hearing
held on December 18, 2018, he was found guilty of the
appealed the guilty finding on the same day. He stated there
was a verified keep separate order between him and someone on
the B-side of the T-Unit, which is where he was to move. A
separation was entered in the OMNI (Offender Management
Network Information) on December 27, 2018, although the
separation should have been entered prior to when Plaintiff
was infracted for refusing the move.
Klemke reviewed Plaintiff's appeal on December 31, 2018.
After reviewing the separation in OMNI, Defendant concluded
that Plaintiff's infraction should be reversed. In his
decision, Defendant wrote, “[i]n reviewing OMNI I see
there is a separation entered by IIU Greene for a unit
separation from another individual housed in T-Unit. I
contacted IIU Greene and verified that this should have been
in place prior to the incident for which you were infracted.
Therefore the infraction is being dismissed.” ECF NO.
30, at 7. Once he completed the appeal, he used interoffice