Giba v. Cook
| Decision Date | 31 March 2002 |
| Docket Number | No. CV-99-1634-ST.,CV-99-1634-ST. |
| Citation | 232 F.Supp.2d 1171 |
| Parties | David M. GIBA, Plaintiff, v. David S. COOK, Nick Armenakis, Les Dolecal, David Schumacher, Dan Johnson, Wade Scrogham, Elwood L. Fogleman, Ron Myers, G. Rodriguez, Leonard W. Messersmith, Laura Carney, Polly Stuart, Kathy Ryals, Bob Snyder, Albert Hazen, Bob Moehlman, Teri Blankenbaker, Darla Cox, Celia Hamilton-Jensen, Kathy Stevens, Diane McCarron, and John Does I-III, Defendants. |
| Court | U.S. District Court — District of Oregon |
David M. Giba, Eugene, OR, pro se.
Jan Peter Londahl, Leonard W. Williamson, Dept. of Justice, Salem, OR, for Defendants.
Plaintiff, David Giba ("Giba"), an inmate at the Two Rivers Correctional Institution, brings this action pro se pursuant to 42 USC § 1983. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c). Currently before the court is defendants' Motion for Summary Judgment (docket # 27) and plaintiff's Motion to Compel (docket # 33). This court issued Orders dated December 20, 1999, and April 21, 2000 (dockets # 12 and # 31), advising Giba of federal summary judgment standards. For the reasons that follow, defendants' Motion is granted and plaintiff's Motion is denied as moot.
This action arises out of two misconduct charges brought against Giba while he was an inmate at the Snake River Correctional Institution ("SRCI"). Giba asserts 54 separate claims against 21 prison officials and three unnamed persons. In summary, Giba's alleges that defendants: (1) violated his right to procedural and substantive due process; (2) violated his First Amendment rights to access the courts, free speech and privileged attorney/client communications; (3) conspired to prevent and retaliated against him for attempting to do so; and (4) violated his Fourth Amendment right to be free from unreasonable search and seizure. As a result, Giba seeks compensatory, declaratory, and injunctive relief.
In his response to defendants' motion, Giba repeatedly requests appointment of counsel, additional time for discovery, and leave to amend. He states that he is unlearned in the law, that he feels over-whelmed by the complexity of the legal issues, that the prison's legal assistant is unable to assist him due to a lack of experience in litigating federal civil rights actions, and that his time to use the prison's legal research computer is very limited. Although he believes that the facts clearly reveal that he has suffered an injustice at the hands of numerous prison officials, he has difficulty determining what legal theory or theories should be pursued and how to frame his claims.
On December 1, 1999, this court denied Giba's request for appointment of counsel (docket # 7) and has no reason to reconsider that ruling. Giba's response to defendants' motion demonstrates an unusual ability to articulate his claims, perhaps due to the assistance of his sister who is an attorney. Accordingly, Giba's renewed request for appointment of counsel is denied. Giba's request for additional time for discovery is also denied. FRCP 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Since April 2000, this court has granted 11 motions by Giba for extensions of time to conduct discovery and to respond to defendants' motion. Given the thoroughness of Giba's response, no additional time for discovery is warranted. Moreover, the Ninth Circuit has held that FRCP 56(f) requires more than "[r]eferences in memoranda and declarations to a need for discovery." Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Rather, FRCP 56(f) Id. Giba did not fulfill these requirements. Accordingly, this request is denied.
Lastly, Giba makes several requests for leave to amend those claims which he believes are more appropriately pled under his coverup and retaliation claims. Instead of allowing leave to amend, this court will construe those claims as proposed by Giba in his responsive pleading.
FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party does so, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. The court must "not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir.1999). A "`scintilla of evidence,' or evidence that is `merely colorable' or `not significantly probative,'" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert denied, 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id. at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), cert denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988).
Because all material facts must be viewed in the light most favorable to the non-movant, this court will view the evidence in the light most favorable to Giba. A review of the parties' concise statements of fact,1 as well as the other materials submitted by the parties, reveal the following.
On November 21, 1997, Parklynd Main ("Main"), a Corporal at SRCI, intercepted a letter from Giba to inmate Brad Cunningham ("Cunningham") at Eastern Oregon Correctional Institution. In the letter, Giba requests Cunningham to provide an affidavit attesting that defendant Laura Carney ("Carney"), an Office Specialist at SRCI, opened and read his legal mail. Giba requested this affidavit because Carney was the person responsible for photocopying inmates' confidential legal documents while the SRCI law library was closed and replaced by contracted legal services. Giba specifically requested that Cunningham "relay sensitive/confidential documents," including the requested affidavit, to Giba's sister Linda Hemphill ("Hemphill"), an attorney in New Mexico, who would forward it to him.
Based on this intercepted letter, defendant Leonard Messersmith ("Messersmith"), a Correctional Officer at SRCI, issued a misconduct report charging Giba with Disobedience of an Order II.2 Because Giba's confiscated letter also contained sexual innuendos about two female ODOC officials, defendant Les Dolecal ("Dolecal"), an Inspector General at SRCI, began a formal investigation. On January 21, 1998, Dolecal concluded that Giba's allegations were unfounded in light of Giba's recantation.
On November 21, 1997, defendant Bob Snyder ("Snyder"), a Correctional Officer at SRCI, searched Giba's cell outside of his presence. Giba claims that this search took place because of his intercepted letter to Cunningham. Snyder found documents containing information on SRCI staff in Giba's archive box clearly labeled "confidential — legal matters." Another inmate had obtained this information through discovery in a separate suit and Giba had retained photocopies of these documents for approximately ten months even though there had been "numerous" cell searches. Since inmates are not authorized to possess documents belonging to other inmates or confidential, sensitive information on staff, Snyder issued a misconduct report charging Giba with Contraband II.3
On November 26, 1997, defendant Ron Myers ("Myers"), a Hearings Officer at SRCI, held two separate disciplinary hearings for these misconduct violations. At the Contraband II hearing, Giba admitted that he had made copies of legal documents that another inmate had previously obtained through discovery in a separate suit against ODOC. However, Giba was not allowed to explain that he was not doing legal work for another inmate or misusing these photocopied legal documents. Nonetheless, Myers lessened the charge to a minor offense of Contraband III.4 He sanctioned Giba to seven days of Loss of Privileges and ordered that the contraband be confiscated and destroyed.
At the second disciplinary hearing on the Disobedience of an Order charge, Giba acknowledged that he sent the letter to Cunningham and "knew there was a rule that an inmate's [sic] not allowed to give something to another inmate." Affidavit of Ron Myers ("Myers Aff"), attach. 2, pp. 14-15. However, Giba explained that he was trying "to avoid getting any kind of write up" and "didn't think there was...
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