Grenning v. Klemme, CV–12–0600–JLQ.

CourtUnited States District Courts. 9th Circuit. Eastern District of Washington
Citation34 F.Supp.3d 1144
Decision Date22 July 2014
Docket NumberNo. CV–12–0600–JLQ.,CV–12–0600–JLQ.
PartiesNeil GRENNING, Plaintiff, v. Risa A. KLEMME, et al., Defendants.

34 F.Supp.3d 1144

Neil GRENNING, Plaintiff,
Risa A. KLEMME, et al., Defendants.

No. CV–12–0600–JLQ.

United States District Court, E.D. Washington.

Signed July 22, 2014

Motion granted in part and denied in part.

[34 F.Supp.3d 1149]

Neil Grenning, Airway Heights, WA, pro se.

Timothy J. Feulner, Attorney General of Washington, Olympia, WA, for Defendant.


JUSTIN L. QUACKENBUSH, Senior District Judge.

BEFORE THE COURT are Defendants' Motion for Summary Judgment

[34 F.Supp.3d 1150]

(ECF No. 56); Plaintiff's Motion to Stay Summary Judgment Until Completion of Discovery Pursuant to Rule 56(d) (ECF No. 64); and Plaintiff's Motion to Amend Complaint to Identify John Does (ECF No. 61). For the reasons that follow, Defendants' Motion is granted in part and certain claims are dismissed while others merit further document discovery. As the foreign mail restriction claims asserted against the “John Doe” Defendants survive Defendants' Motion, Plaintiff is also granted leave to amend his pleading in order to identify the John Does.


The Plaintiff is a pro se prisoner housed at the Airway Heights Corrections Center (AHCC), in Airway Heights, Washington serving a 1392–month (116 years) exceptional sentence for his numerous 2004 Washington state child-sex abuse convictions.

On January 15, 2013, Plaintiff filed the present civil rights action pursuant to 42 U.S.C. § 1983 against 19 individual defendants who work or formerly worked at the AHCC or the Washington State Department of Corrections (DOC) prison system. Plaintiff has filed a separate Motion seeking to identify the four unnamed Doe Defendants, alleged mailroom employees at AHCC, as being Paul Barker, Bonnie Munden, Ronald Doty, and Sergeant Thomas Orth.

The operative Second Amended Complaint asserts First Amendment claims against all of the Defendants. Plaintiff claims the Defendants participated in the following separate adverse actions in retaliation against him for the content of letters and a manuscript he authored, as well as his filing of grievances and his lawsuit filed in January 2010 regarding 24–hour illumination at AHCC (EDWA Cause No. 09–CV–0389–JPH):

No. 1: Plaintiff alleges that in November 2010, Defendants Klemme and “mailroom staff” (Defendants John Does 1–4) unlawfully restricted delivery of incoming mail containing copies of a creative writing manuscript Plaintiff authored. (ECF No. 19 at ¶ 64).

No. 2: Plaintiff alleges that on December 17, 2010, Defendant Harrington forwarded to Defendant Richardson a portion of an outgoing email critical of Richardson that Plaintiff had written to his mother. (ECF No. 19 at ¶¶ 7–20, 64)

No. 3: Plaintiff alleges that on December 23, 2010, Richardson issued him an infraction based on the content of the foregoing email. (ECF No. 19 at ¶ 65).

No. 4: Plaintiff alleges that on January 21, 2011, Defendants Richardson and Hagen unlawfully searched Plaintiff's cell, disrupting his legal papers and personal belongings. (ECF No. 19 at ¶ 66).

No. 5: Plaintiff alleges that on February 27, 2012 Defendant Richardson unlawfully placed him in “solitary confinement.” (ECF No. 19 at ¶ 67).

No. 6: Plaintiff alleges that Defendants John Does 1–4 unlawfully restricted his incoming mail on five separate dates claiming the content was sexually explicit and Defendants Klemme and Watkins denied his appeals of these restrictions. (ECF No. 19 at ¶ 68).

No. 7: Plaintiff alleges that Defendants Klemme, Miller–Stout, Watkins, Warner, and John Does 1–4 unlawfully prohibited him from receiving incoming mail written in Norwegian language. (ECF No. 19 at ¶ 46, ¶ 69).

No. 8: Plaintiff alleges Defendants Burke, Brazington, Lawrence, and Stokes unlawfully demoted him from minimum custody to medium custody by characterizing

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Plaintiff's sentence as “Life Without Parole.” (ECF No. 19 at ¶ 53, 70).

No. 9: Plaintiff alleges Defendants Miller–Stout, Davies, Miller, Uttecht, Campbell unlawfully denied his appeals concerning his placement in more restrictive custody. (ECF No. 19 at ¶ 71).

On January 6, 2014, Plaintiff propounded 39 discovery requests for production to Defendant Maggie Miller–Stout, 7 production requests to Defendant Jeffrey Uttecht, and 7 production requests to Defendant Risa Klemme. (ECF No. 59 at 2).

On February 4, 2014, Defendants filed a Motion for Summary Judgment. (ECF No. 56). Defendants assert they are entitled to summary judgment because (1) Plaintiff has failed to exhaust claims related to the January 21, 2011 cell search; (2) Defendant Warner did not personally participate in the alleged constitutional violation; (3) Plaintiff has failed to establish a prima facie case of First Amendment retaliation; (4) Defendants are entitled to qualified immunity; (5) injunctive relief should be denied because Plaintiff cannot show entitlement to such relief; and (6) Plaintiff should be issued a strike under 28 U.S.C. § 1915(g) because his claims are frivolous. (ECF No. 56). Accompanying the Defendants' Motion are a Statement of Material Facts and the requisite form Notice to the Plaintiff (ECF No. 58) of the requirements for opposing the Motion. Woods v. Carey, 684 F.3d 934, 939–41 (9th Cir.2012); Rand v. Rowland, 154 F.3d 952, 960–61 (9th Cir.1998). Defendants also moved for a protective order and stay of discovery to relieve them of the duty to respond to the Plaintiff's discovery requests until resolution of their Summary Judgment Motion, including the issue of qualified immunity.

On February 27, 2014, Plaintiff filed a Motion to Stay pursuant to Fed.R.Civ.P. 56(d) requesting the court to defer any ruling on all issues, except qualified immunity, in the Defendants' Motion until completion of discovery. (ECF No. 69 at 2). Plaintiff claims the discovery he seeks is “instrumental to material issues” in the case which “bear on his ability to respond to a motion for summary judgment.” Plaintiff has responded to the Defendants' Summary Judgment Motion in his March 31, 2014 Reply brief in support of the Rule 56(d) continuance. (ECF No. 69).

The court stayed discovery pending review of Defendants' and Plaintiff's motions.


The underlying facts and allegations contained in the Second Amended Complaint pertinent to the matters before the court are incorporated in the discussion of each claim below.

III. LEGAL STANDARDS A. Summary Judgment

Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute regarding a material fact is genuine if the evidence is such that a reasonable trier of fact could return a verdict in favor of the nonmoving party. Id.

A party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine

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issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). Where the movant will have the burden of proof on an issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). “On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case.” Id. ( citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548).

If the movant has sustained its burden, the nonmoving party must “show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in [its] favor.” FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir.2009) ( citing Anderson, 477 U.S. at 257, 106 S.Ct. 2505 (1986)). Although the nonmoving party need not establish a material issue of fact conclusively in its favor, it may not simply rely on “bald assertions or a mere scintilla of evidence in [its] favor” to withstand summary judgment. Stefanchik, 559 F.3d at 929. Indeed, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In resolving a summary judgment motion, “the court does not make credibility determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Rather, “the evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

The court may construe Plaintiff's verified complaint and opposition as being opposing affidavits for the purpose of ruling on Defendants' motion for summary judgment. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir.2004) ( “because [the plaintiff] is pro se, we must consider as evidence in his opposition to summary judgment all of Jones's contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [the plaintiff] attested under penalty of perjury that the contents of the motions or pleadings are true and correct.”).

B. Qualified Immunity

“[Q]ualified immunity protects government...

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1 cases
  • Grenning v. Klemme, CV–12–0600–JLQ.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • July 22, 2014
    ...34 F.Supp.3d 1144Neil GRENNING, Plaintiffv.Risa A. KLEMME, et al., Defendants.No. CV–12–0600–JLQ.United States District Court, E.D. Washington.Signed July 22, 2014.34 F.Supp.3d 1149Neil Grenning, Airway Heights, WA, pro se.Timothy J. Feulner, Attorney General of Washington, Olympia, WA, for......

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