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CARL D. McQUILLION, Plaintiff-Appellant, v. S. McKENZIE, Correctional
Officer; F. MANN, Correctional Officer; J. DOROUGH, Correctional Sergeant; E.
A. ROBBINS, Correctional Lieutenant; A. P. KANE, Correctional Captain; A.
HOGAN, Correctional Officer, individually and in their official capacities,
Defendants-Appellees.
No. 00-15505
UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
35 Fed. Appx. 547; 2002 U.S.
App. Lexis 9593
April 12, 2002 **,
Submitted, San Francisco, California ** The panel unanimously finds this case
suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
May 16, 2002, Filed
NOTICE:
RULES OF THE NINTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
MEMORANDUM *
* This disposition is not
appropriate for publication and may not be cited to or by the courts of this
Circuit except as may be provided by Ninth Circuit Rule 36-3.
Plaintiff-petitioner Carl D.
McQuillion appeals pro se a summary judgment on his [*549] claims that
Defendant-Appellees S. McKenzie, F. Mann, J. Dorough, E.A. Robbins, A.P. Kane, and A. Hogan
violated his civil rights under 42 U.S.C. § 1983. McQuillion alleges that he
was the victim of unlawful harassment and retaliation due to his role as
Executive Chairman of the Inmate Advisory Council ("IAC") at the California
Medical Facility ("CMF") in Vacaville, California. The district court
entered summary judgment sua sponte against all claims raised below, including
claims of racial conspiracy under 42 U.S.C. §§ 1985 and 1986. McQuillion
abandons the racial conspiracy claims on appeal.
This Court has jurisdiction to hear appeals from final judgments
pursuant to 28 U.S.C. § 1291. Because the facts are familiar to the parties, we
recount them only as necessary to explain our decision.
I
We
review the district court's order granting summary judgment de novo. Clicks
Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001); Robi
v. Reed, 173 F.3d 736, 739 (9th Cir. 1999). A district court may grant an order
of summary judgment sua sponte "when 1) no material dispute of fact
exists, and 2) the losing party has had an adequate opportunity to address the issues involved, including
adequate time to develop any facts necessary to oppose summary judgment." Fuller
v. City of Oakland, 47 F.3d 1522, 1533 (9th Cir. 1995); see also Celotex Corp. v. Catrett, 477 U.S. 317,
326, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In reviewing summary judgment,
"we must determine, viewing the facts in the light most favorable to the
non-moving party, whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant substantive
law." Fuller, 47 F.3d at 1534; Warren v. City of Carlsbad, 58 F.3d 439,
441 (9th Cir. 1995).
II
A plaintiff may bring a claim of
retaliation for the exercise of his First Amendment rights under 42 U.S.C. §
1983. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 50
L. Ed. 2d 471, 97 S. Ct. 568 (1977). "A prisoner suing prison officials
under section 1983 for retaliation must allege that he was retaliated against
for exercising his constitutional rights and that the retaliatory action does
not advance legitimate penological goals, such as preserving institutional
order and discipline." Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.
1994) (per curiam). Accordingly, a prisoner retains those First Amendment
rights that are "not inconsistent with his status as a prisoner or with
the legitimate penological objectives of the corrections system," Prison
Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (internal quotation
marks and citation omitted). The district court concluded that McQuillion failed to raise a single,
genuine factual issue on the basis of which a jury could infer that the
defendants' actions did not serve legitimate penological interests. We reverse
this ruling with respect to claims against defendants Hogan and Mann.
According to the state regulations governing the IAC, McQuillion, as
its chairman, was chiefly responsible
for "providing inmates of the institution with representation and a voice
in administrative deliberations and decisions affecting the welfare and best
interest of all inmates." CDC Operations Manual 53120.2. In addition, the
IAC serves in a limited capacity in the collection and administration of prisoner
grievances at CMF (i. e., [*550] the
IAC serves to identify and remand to the warden grievances "of concern to
the general inmate population"). CDC Operations Manual 53120.6.
McQuillion's service as IAC chairman is protected activity under the First
Amendment. See Bradley v. Hall, 64
F.3d 1276, 1279 (9th Cir. 1995).
There is no dispute that the
defendants were aware of McQuillion's status as chair of the IAC during the
period when the alleged unlawful conduct occurred. McQuillion has made several
allegations in the affidavits supporting his motion for summary judgment that
the defendants harbored discriminatory motivations against members of the IAC
and against him in particular for his role in that organization. In addition,
"timing can properly be considered as circumstantial evidence of
retaliatory intent." Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir.
1995). As an initial matter, McQuillion has satisfied his burden of advancing
allegations with supporting evidence that he was targeted for retaliation on
the basis of his participation in a constitutionally protected activity. Mt. Healthy, 429 U.S. at 287.
In Superintendent v. Hill, 472
U.S. 445, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985), the Supreme Court held that
if there is even "some evidence" to support the prison's disciplinary
decision, the requirements of due process are satisfied, id. at 455. We have
adopted that standard for disciplinary actions taken by a prison review board,
see, e.g., Barnett, 31 F.3d at 816,
but we distinguish situations where an individual guard or guards are alleged
to have filed false disciplinary charges against a prisoner, Hines v. Gomez,
108 F.3d 265, 268-69 (9th Cir. 1997). Contrary to the appellees' assertions, in
such situations, a "correctional officer's accusation is not entitled to
the 'some evidence' standard of review that we afford disciplinary
administrative decisions." Id. at 269.
We agree that the district court
properly entered summary judgment on the section 1983 claim for defendant
Robbins, who acted as a hearing officer. The fact that Robbins' disciplinary
conviction of McQuillion was later overturned by the warden does not establish
that Robbins did not have some evidence to support his conclusion that
disciplinary action against McQuillion served a legitimate penological
interest. However, none of McQuillion's other claims involve conduct
subject to the "some evidence" standard.
McQuillion alleges that both defendants Dorough and McKenzie filed false
disciplinary reports against him arising out of an altercation that took place
at the IAC office on June 14, 1996. During that altercation, Dorough was
summoned to the IAC office to investigate a dispute between McQuillion and
McKenzie, and was subsequently shown a copy of a memorandum stored in IAC
files, in which McQuillion had criticized McKenzie as racist and unprofessional
on the basis of prior, unrelated conduct. The CDC Operations Manual forbids a
prisoner from taking a prison employee's actions to a higher authority under
the auspices of the IAC. In addition, McQuillion violated prison protocols by
keeping a copy of the memorandum in IAC files as well as by showing it to
individual guards. McQuillion does not dispute this representation of the June
14 events. Based on the evidence read in a light most favorable to McQuillion,
both Dorough and McKenzie had a rich and concrete basis to believe that
McQuillion had broken prison security
rules both by retaining and disclosing the complaint memorandum. Therefore, we
affirm the district court's order of summary judgment for these two defendants.
McQuillion's section 1983
against defendant Mann arises out of two [*551] counseling chronos (or
administrative warnings) issued on February 20, 1996: first, for alleged
misrepresentation and misuse of a prison telephone and, second, for allegedly
attempting to manipulate defendant Mann following a body search by threatening
to report Mann to another official. Because McQuillion disputes that he misrepresented
his identity over the telephone, that he had no right to use that phone, and
that he made statements that could be construed as an attempt to manipulate
Mann, each of these disciplinary charges turns upon disputed issues of material
fact. We therefore reverse the district court's order of summary judgment for
defendant Mann. Hines, 108 F.3d 268-69.
Similarly, McQuillion's section 1983 claim
against defendant Hogan turn upon a factual dispute regarding the events
immediately preceding the defendant's filing of a counseling chrono against
McQuillion on July 24, 1996. Accordingly, we reverse the district court's order
of summary judgment in favor of defendant Hogan. Id.
We
uphold the order of summary judgment on
McQuillion's section 1983 claim against defendant Kane. This claim is based on
allegations (1) that Kane failed to assist McQuillion in filing of
administrative grievances against guards at CMF and (2) that Kane ordered
another prison officer to issue two rules violations against him for the misuse
and appropriation of state property. McQuillion has failed to establish that
Kane had an affirmative duty to aid McQuillion in the filing of grievances
against other prison officers. In addition, no evidence in the record supports
the conclusion that Kane's order that rules violations be issued against
McQuillion lacked any reasonable relationship to a penological interest. Prison Legal News, 238 F.3d at 1149.
Therefore, we hold that McQuillion has failed to raise a genuine issue of material
fact regarding whether Kane has engaged in any conduct that might be construed
to chill McQuillion's exercise of his First Amendment Rights. Mt. Healthy, 429 U.S. at 283-84.
Finally, we note that McQuillion
has conceded on appeal his claims of racial conspiracy. 42 U.S.C. §§ 1985,
1986. McQuillion states in his opening brief that he "did not allege that
the conspiracy to 'chill' his First Amendment rights was racially
premised," and he "submits that the invidiously discriminatory animus
in this case is that created by defendants' status as prison officials/staff
versus the status of the plaintiff as an inmate on an inmate council."
(Pl.'s Opening Br. at 14.) Accordingly, we will not review the district court's
order of summary judgment regarding his racial conspiracy claims.
AFFIRMED IN PART, REVERSED IN PART.