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Gatewood v. McNeil

United States District Court, D. Hawaii

November 29, 2018



          Leslie E. Kobayashi, United States District Judge

         Before the Court is Defendant April McNeil's (“McNeil”) Motion for Summary Judgment (“Motion”), filed on June 18, 2018. [Dkt. no. 122.] Pro se Plaintiff John Leon Gatewood (“Plaintiff”) filed two memoranda in opposition on July 10, 2018, and McNeil filed her reply memorandum on July 27, 2018. [Dkt. nos. 145 (“First Opp.”), 146 (“Second Opp.”), 154.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). McNeil's Motion for Summary Judgment is hereby granted in part and denied in part for the reasons set forth below.


         Plaintiff filed his original complaint on March 2, 2017, and he filed an amended complaint on April 24, 2017. [Dkt. nos. 1, 8.] On April 30, 2018, Plaintiff filed his Prisoner Civil Rights Complaint - Second Amended Complaint (“Second Amended Complaint”), alleging a retaliation claim against McNeil and Defendant Adult Correctional Officer (“ACO”) Faatea (“Faatea”). [Dkt. no. 102.] This claim has been construed as a 42 U.S.C. § 1983 claim alleging a violation of Plaintiff's First Amendment rights. See Order Dismissing Complaint in Part and Denying Assistance of Counsel, filed 4/11/17 (dkt. no. 6) (“4/11/17 Order”), at 6, 12-13 (discussing retaliation claim in Plaintiff's original complaint).[1]

         Plaintiff's claim arises from an altercation between him and Faatea on September 18, 2015 (“Incident”), when Plaintiff was an inmate at the Waiawa Correctional Facility (“WCF”). [Second Amended Complaint at pg. 5.] Plaintiff alleges Faatea struck and pushed Plaintiff, but Plaintiff was sent to solitary confinement and was subjected to unfair disciplinary proceedings. [Id.] At the time of the Incident, April McNeil was a Sergeant at WCF. [Separate and Concise Statement of Facts in Supp. of Def. April McNeil's Motion for Summary Judgment (“McNeil CSOF”), filed 6/18/18 (dkt. no. 123), Decl. of April McNeil (“McNeil Decl.”) at ¶¶ 2-3.[2] Plaintiff alleges he informed McNeil and the WCF staff that he would be pressing charges against Faatea for striking and pushing him. [Second Amended Complaint at pg. 5.] Plaintiff alleges McNeil retaliated against Plaintiff, and she and Faatea prepared “falsified documents” to ensure that Plaintiff's disciplinary proceedings were “unfair.” [Id.]

         Faatea submitted multiple incident reports all dated September 18, 2015. [McNeil CSOF, Decl. of Teresa Miike (“Miike Decl.”), [3] Exh. 1 at 10008-09 (first 9/18/15 incident report), 10010-11 (second 9/18/15 incident report); 10016-17 (third 9/18/15 incident report) (collectively “Faatea Incident Reports”).[4] McNeil received Faatea's incident report on September 19, 2015.[5] [Miike Decl., Exh. 1 at 10014 (Memo from McNeil to Lieutenant Nalei Cox (“Lieutenant Cox”) dated 9/19/15).] According to the Faatea Incident Reports, Plaintiff arrived at the Health Care Unit (“HCU”) at WCF complaining of an infection in his mouth. Faatea explained to Plaintiff that he was on the dental clinic list, and ordered him to leave the HCU. Plaintiff refused to leave, spoke with other inmates during the altercation, and stared at Faatea threateningly. [Miike Decl., Exh. 1 at 10008-09 (first 9/18/15 incident report).] Plaintiff was later charged with: 1) using force or threatening a correctional worker; 2) refusing to obey an order; 3) being in an unauthorized area; 4) lying or providing false statements; and 5) unauthorized contact with the public or other inmates. [Miike Decl., Exh. 1 at 10012 (Memo dated 9/19/15 from Lieutenant Cox to Captain Sean Ornellas (“Captain Ornellas”)).]

         On September 18, 2015, McNeil informed Captain Ornellas of the Incident. [Id.] On September 19, 2015, McNeil provided a copy of Faatea's incident report to Captain Ornellas, and Plaintiff was “locked down” that same day. [Id. at 10014 (Memo dated 9/19/15 from McNeil to Captain Ornellas regarding the Incident and Plaintiff's discipline).] Captain Ornellas then instructed McNeil to investigate the Incident. [Id. at 10015 (memo from Lieutenant Cox to Captain Ornellas regarding assigning McNeil to investigation).] On September 22, 2015 and September 24, 2015, McNeil interviewed Plaintiff about the Incident. [Id. at 10020-21 (WCF documentation of Plaintiff's 9/22/15 and 9/24/15 interviews).] McNeil also interviewed inmate Cory Anderson on September 22, 2015, and obtained his written statement. [Id. at 10022 (Anderson written statement dated 9/22/15), 10023-24 (WCF documentation of Anderson's 9/22/15 interview).] Finally, McNeil interviewed Faatea on September 24, 2015. [Id. at 10025-26 (WCF documentation of Faatea's 9/24/15 interview).] McNeil prepared and submitted her investigative report to Lieutenant Cox on September 25, 2015. [Id. at 10001-07 (report signed by McNeil on 9/25/15 (“McNeil Report”)).]

         On October 9, 2015, a Facility Adjustment hearing was held, with Lieutenant David Sayurin (“Lieutenant Sayurin”) presiding as the Facility Adjustment Committee Chairman.[6] [Id. at 10027-29 (WCF Facility Adjustment Hearing Processing Form).] Plaintiff was found guilty of charges one through four, but not guilty of charge five. He was sent to solitary confinement for a total of fifty days, with twenty-one days of credit for pre-hearing detention. [Id. at 10029.] On October 27, 2015, Plaintiff filed a grievance.[7] [McNeil CSOF, Decl. of Charles Laux (“Laux Decl.”) at ¶¶ 11-12 (noting Plaintiff filed five grievances between 2003 and 2015, one each on September 11 and October 1, 2003 and October 9, November 22, and November 25, 2015).[8]

         McNeil argues there is no genuine issue of material fact that she: had no knowledge of Plaintiff's intent to engage in a protected activity; and accordingly, had no retaliatory intent in assisting with the resulting investigation and misconduct hearing that followed the Incident. Further, McNeil asserts Plaintiff cannot show that: she made false statements in the McNeil Report because of Plaintiff's intent to engage in a protected activity, i.e., filing a grievance against Faatea; or, even if the McNeil Report contained false statements, Plaintiff was placed in solitary confinement because of those statements. McNeil points out that no document, including Plaintiff's own contemporaneous handwritten statement, demonstrates that he intended to make a claim. [Mem. in Supp. of Motion at 3.]


         I. Special Considerations for a Pro Se Litigant

         McNeil argues Plaintiff's two memoranda in opposition, fail to show there is a genuine issue of material fact. [Reply at 2.] In a footnote, McNeil argues: neither the First Opposition nor the Second Opposition include any declarations or admissible evidence; both fail to comply with the district court's Local Rules requiring a separate concise statement; and thus, should be disregarded for those reasons. [Id. at 2 n.1.] With regard to Plaintiff's evidence, Plaintiff's First Opposition and Second Opposition both include his declaration “under the Penalty of Perjury that the foregoing is true and correct, ” pursuant to 28 U.S.C. § 1746.[9] [First Opp. at 12; Second Opp. at 9.[10] An unsworn statement made under penalty of perjury is admissible evidence in a motion for summary judgment. See § 1746; Shepard v. Quillen, 840 F.3d 686, 687 n.1 (9th Cir. 2016) (citations omitted).

         Second, the Court notes that pro se filings are “held to less stringent standards than those of their legal counterparts.” See Welsh v. Wilcox Mem'l Hosp., Civil No. 12-00609, 2012 WL 6047745, at *1 (D. Hawai`i Dec. 4, 2012) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2012)). Although not formatted according to Local Rule 56.1, Plaintiff essentially identified the disputed facts and cited with particularity to the supporting evidence in the record. Accordingly, the Court will consider Plaintiff's arguments and exhibits in ruling on McNeil's Motion.

         II. Plaintiff's Retaliation Claim

         With regard to a prisoner's claim for retaliation in violation of his First Amendment, the plaintiff must establish: “(1) [a]n assertion that 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.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citations omitted).

         McNeil contends, for the purpose of the Motion, that Plaintiff's solitary confinement is the adverse action, and that the third, fourth, and fifth elements of a claim for retaliation are satisfied. [Mem. in Supp. of Motion at 9.] Thus, the Court will not address the merits of the first, third, fourth, and fifth elements of Plaintiff's retaliation claim and will only address causation. McNeil argues she is entitled to summary judgment since Plaintiff cannot present any evidence to show that McNeil had retaliatory motive. However, it is unclear from the Second Amended Complaint whether Plaintiff's retaliation claim is based on: his initial placement in solitary confinement on September 19, 2015, immediately following the Incident; the allegedly false McNeil Report and Faatea Incident Reports; the outcome of Plaintiff's disciplinary proceedings; or all of the foregoing. Falsification of a report is deemed a retaliatory act in and of itself. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (recognizing § 1983 retaliation claim where the prisoner alleged a correctional officer filed a false report in retaliation for the prisoner reporting officer misconduct); Hinesv. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (prison guard's false accusation of a prisoner's rule violation made after the prisoner used the grievance system deemed retaliatory). The Court liberally construes Plaintiff's Second Amended Complaint as alleging retaliatory acts based on Plaintiff's initial placement in solitary confinement, the alleged false reporting, ...

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