Koch v. Lewis

• Decision Date: 24 April 2000
• Docket Number: No. Civ. 90-1872 PHX-JBM.,Civ. 90-1872 PHX-JBM.
• Citation: 96 F.Supp.2d 949
• Parties: Mark A. KOCH, Plaintiff, v. Samuel LEWIS, et al., Defendants.
• Court: U.S. District Court — District of Arizona

96 F.Supp.2d 949

Mark A. KOCH, Plaintiff, v. Samuel LEWIS, et al., Defendants.

No. Civ. 90-1872 PHX-JBM.

United States District Court, D. Arizona.

April 24, 2000.

COPYRIGHT MATERIAL OMITTED

Mark A. Koch, Florence, AZ, for plaintiff.

Alicia Marie Lawler, Office of Attorney General, Liability Management Section, Phoenix, AZ, for defendants.

MEMORANDUM AND ORDER

MORAN, Senior District Judge.

Plaintiff Mark Koch is a convicted felon serving 25 years to life in the Arizona Department of Corrections (ADOC). He filed this action on December 7, 1990, pursuant to 42 U.S.C. § 1983, seeking damages, injunctive and declaratory relief for alleged violations of his civil rights. His amended complaint, filed March 22, 1991, alleges that prison officials¹ forced him without cause or notice, to submit to two urinalysis tests; mishandled his urine samples and exposed them to contamination; increased his risk classification score² based on a positive, but unconfirmed, result; and placed him in administrative detention and revoked some of his earned good time credits. Koch also claimed that defendants confiscated his personal stained glass craft materials without due process of law, denied him access to the law library and legal assistance, and subjected him to unreasonable strip- and body cavity searches. The gravamen of his complaint is that defendants took these actions in retaliation for his persistent pursuit of a number of legal actions against prison officials. If Koch's allegations are to be believed, a number of ADOC personnel understood Shakespeare's admonition to first kill all the lawyers.

After an initial decision granting partial summary judgment in favor of defendants, Koch v. Lewis (Koch I), Civ. 90-1872-PHX-CAM (D.Ariz.1991) (Muecke, J.) (amended April 29, 1993), the district court granted summary judgment in favor of the defendants on all remaining issues and dismissed the action. Koch v. Lewis (Koch II), Civ. 90-1872-PHX-CAM (D.Ariz. November 9, 1993) (Muecke, J.).

On August 1, 1995, the Ninth Circuit affirmed in part and reversed in part, finding that genuine issues of material fact precluded summary judgment on three of Koch's claims. See Koch v. Lewis (Koch III), 62 F.3d 1424, 1995 WL 453247 (1995) (table). On the retaliation claim, the court found that summary judgment was inappropriate because the chronology of events "was more than adequate to raise an inference that the urine tests were ordered for the purposes of retaliation." Id., at *11. Koch presented evidence that he had won a prior § 1983 action against the prison officials in October 1989,³ that the jury in a second action returned a verdict in his favor in March 1990,⁴ and that on September 11, 1990, he had filed a third action in state court against defendant Lewis for, inter alia, trover and conversion of his personal stained glass hobby craft materials. The first urine sample was taken on September 26, 1990.

Defendants had argued that because Koch's administrative segregation was the result of a positive drug test, the action promoted the prison's legitimate goal of imposing discipline for rule violations. Therefore, defendants argued, Koch could not show that the action "did not advance legitimate penological goals," a necessary element of a retaliation claim. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994). But the court rejected the argument, clarifying that Koch's claim was based on the theory that the urine tests were ordered as retaliation. "The prison officials cannot contend subjecting Koch to urine tests without cause ... advanced any legitimate penological interests." Koch III, at *11. The court concluded that triable issues of fact existed as to whether either urinalysis was conducted as a result of information provided by a confidential informant or for some other, possibly illegitimate purpose.

The court also reversed the grant of summary judgment on the procurement and chain of custody issues. The court found triable issues of fact as to whether the procurement and handling of Koch's urine samples were in accordance with ADOC collection procedures, and, if not, whether the test results may constitute "some evidence" of Koch's guilt. See Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).

Finally, the court reversed summary judgment on the alleged violations of ADOC's notice policy: "Defendants do not dispute that ADOC rules regarding the type of notice required when a prisoner is suspected of using drugs are written in mandatory language and, therefore, create a liberty interest under the Fourteenth Amendment." Koch III, 1995 WL 453247, at *6, citing Hewitt v. Helms, 459 U.S. 460, 471-472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). ADOC policy required that an inmate be given notice within twenty-four hours of the incident creating suspicion. The circuit court noted, however, that only a day before Koch's case was submitted to the Ninth Circuit, the Supreme Court issued its decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), which abandoned Hewitt's reasoning but did not overrule the decision. Because the parties had not briefed the issue, the court directed the district court to resolve the issue on remand.

After briefing by the parties, Judge Silver dismissed Koch's claim that he was denied due process when the urine samples were collected without adequate notice. Koch v. Lewis (Koch IV), Civ. 90-1872-PHX-ROS (D.Ariz. Aug. 5, 1996) (Silver, J.). The judge found that under Sandin, the temporary denial of privileges did not implicate a state-created liberty interest because it did not impose an "atypical and significant hardship" on Koch "in relation to the ordinary incidents of prison life." Slip at 3, quoting Sandin, 115 S.Ct. at 2301 (1995). Nor did the forfeiture of Koch's earned release credits exceed "the expected parameters of the sentence imposed by law." Id. at 4. In the alternative, Judge Silver found that procedural due process requirements were satisfied. Unlike ADOC rules, there was no constitutional mandate that he be given notice within 24 hours of becoming a suspect, and Koch had not alleged that he was denied sufficient notice before his disciplinary hearing.

Judge Silver's order in Koch IV also granted plaintiff's motion for leave to file a supplemental complaint,⁵ noting that the proposed pleading "contains allegations of a continuing pattern of mistreatment, including repeated and unwarranted transfers and disciplinary actions calculated to punish Koch for filing court actions." Id. at 6. Koch alleged that subsequent to the original complaint prison officials transferred him sixteen times among eight separate ADOC institutions; targeted him for additional urine tests without proper cause; denied him access to a law library and legal assistance, causing him to default in a pending lawsuit, CIV 93-0733-PHX-CAM; threatened him with classification as a gang member and extended "administrative" segregation in retaliation for his continued pursuit of the civil rights and property actions against jailhouse officials; and deprived him of his right to religious expression under the First Amendment and the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1 et seq. The new complaint also added two new defendants, Winslow Prison Complex Warden George Herman and Winslow-Kaibab Unit Deputy Warden Denny Harkins, both of whom allegedly participated in these events.

Finally, Judge Silver denied Koch's request for a preliminary injunction. She found that Koch had stated a prima facie case of retaliation with respect to the unwarranted transfers, and that defendants' failure to offer any explanation of the transfers suggested a likelihood of success on the merits. She declined to issue an injunction, however, because Koch had failed to demonstrate an immediate threatened injury—a prerequisite to obtaining preliminary injunctive relief. Judge Silver also rejected Koch's request to enjoin the implementation of DMO # 57 or its successor,⁶ finding that any infringement on prisoner rights was not disproportionate to the policy's furtherance of important penological interests. See Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). On appeal, the Ninth Circuit affirmed the court's denial of the preliminary injunction, but declined to review her dismissal of the notice claim. Koch v. Crist (Koch V), 127 F.3d 1105, 1997 WL 664939 (9th Cir.1997) (table).

We received the case on March 19, 1998. After much wrangling over discovery and repeated substitution of defendants' counsel, the parties filed cross motions for summary judgment on the supplemental complaint in the spring of 1999, in accordance with our invitation. We granted defendants' motion (docs # 154, 155) to file documents under seal, for the time being, and denied Koch's motion to strike (doc # 156). Defendants filed their motion for summary judgment (doc # 160) on April 23, 1999, and submitted a number of sealed and unsealed affidavits from corrections personnel.

Koch filed his response and cross motion for summary judgment (doc # 166) on May 25, 1999, relying heavily on evidentiary material originally submitted with his motion for a preliminary injunction (doc # 90). According to Koch, "it is undisputed that Plaintiff has not engaged in misconduct and that `but for' his lawful associations he would not suffer indefinite punitive sanctions" (plf. mem. in support of his cross motion for summary judgment (plf.mem.) at 1). He makes the following arguments: first, that his validation as a member of a security threat group (STG) was initiated in retaliation for his legal work, violated due process standards requiring "some evidence" of gang affiliation for punitive sanctions, and violated the Ex Post Facto Clause because the policy penalized prior lawful associations; second, that his repeated transfer between correctional facilities was a continuation of the pattern of...