Perez v. Grey

• Decision Date: 30 March 2023
• Docket Number: 2:21-cv-00095-LK
• Parties: DANIEL JAY PEREZ, Plaintiff, v. KATHRYN GREY et al., Defendants.
• Court: U.S. District Court — Western District of Washington

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DANIEL JAY PEREZ, Plaintiff, v. KATHRYN GREY et al., Defendants.

No. 2:21-cv-00095-LK

United States District Court, W.D. Washington, Seattle

March 30, 2023

ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATION

LAUREN KING, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on the Report and Recommendation (“R&R”) of United States Magistrate Judge^[1]David W. Christel, Dkt. No. 101, the objections to the R&R by Plaintiff Daniel Jay Perez, Dkt No. 102, and the response to those objections by Defendants Dkt. No. 104.^[2] The R&R recommends granting Defendants' motion for summary judgment, Dkt. No 76; see Dkt. No. 101 at 18. Having reviewed the R&R, Mr. Perez's objections, Defendants' response, and the remainder of the record-spanning over 1,500 pages-the Court grants in part and denies in part Defendants' motion for summary judgment. Specifically Mr. Perez's retaliation claims against Grey for filing a fabricated infraction and recommending his transfer survive summary judgment. As to his other claims, the Court reaches the same result as the R&R.

I. BACKGROUND

The Monroe Correctional Center (“MCC”) is comprised of several separate units including the Special Offenders Unit (“SOU”), which is specifically designated for the treatment and housing of vulnerable adult male incarcerated individuals due to serious and chronic mental illness, or who are seriously mentally ill. Perez v. Cogburn, No. 2:18-CV-01800-BAT, 2022 WL 2651620, at *5 (W.D. Wash. July 8, 2022). Each of the six housing units within the SOU provides a specialized treatment setting for incarcerated individuals with multi-disciplinary teams of medical, mental health, and custody staff working together to provide round-the-clock services. Id. The goal of the inpatient residential care is to stabilize the incarcerated individual and then transition them to a less restrictive environment within the Department of Corrections (“DOC”) prison system until their release. Id.

In early 2021, Mr. Perez, an inmate in the SOU, sued several DOC employees. Dkt. No. 5. His operative complaint, filed in July 2021, alleges that 17 DOC employees engaged in retaliation prohibited under the First Amendment when they conducted a “campaign of harassment” against him in response to his protected activity (filing lawsuits, grievances, and other complaints). Dkt. No. 42 at 2-50. Mr. Perez alleges that this harassment campaign was designed to-and did-chill his lawful speech. Id. at 48-49. In his complaint, he alleges the following timeline:

• January 22, 2019: Certain Defendants in this action were served with Mr. Perez's complaint in Perez v. Cogburn, No. 2:18-CV-1800-JLR-BAT (W.D. Wash.).^[3]That complaint alleged that Defendants were wrongfully denying Mr. Perez his right to refuse anti-psychotic medications. Later that day, Defendant Kathryn Grey, the Correctional Mental Health Unit Supervisor of E-Unit (the unit in which Mr. Perez resided), received an email from ARNP Lamin Sanneh informing her that Sanneh did not believe there was a basis to administer involuntary anti-psychotic medication to Mr. Perez. In response to the email, Grey asked Sanneh to call her. Dkt. No. 42 at 10; see also Dkt. No. 94 at 3, 38-39, 42.

• January 25, 2019: Defendants initiated a process to involuntarily medicate Mr. Perez. Dkt. No. 42 at 10; see also Dkt. No. 94 at 3.

• February 7, 2019 to March 5, 2019: Mr. Perez was involuntarily medicated with antipsychotic medication. On March 5, 2019, he won his appeal to discontinue the involuntary medication. Dkt. No. 42 at 11; see also Dkt. No. 94 at 3.

• July 2019: Inmates in E-Unit nominated Mr. Perez to serve as Tier Representative-a position that entails “bring[ing] forth unit/facility concerns directly to the Superintendent/designee of the facility[.]” As Tier Representative, Mr. Perez brought “several concerns” to the Superintendent/designees about topics such as the television schedule and noise levels, cell inspections, and lockdowns. Dkt. No. 42 at 11-12; see also Dkt. No. 94 at 4-6.

• August 2019: Mr. Perez began making requests to DOC staff to preserve all E-Unit video, emails, kiosk messages, logbook entries, search reports, infractions issued to Mr. Perez, and internal memorandums, in anticipation of Mr. Perez's forthcoming litigation. Dkt. No. 42 at 22.

• August 18, 2019: Mr. Perez reported to Defendant Camden Crouse, Corrections Officer for the MCC-SOU, that inmate Gary Grant had been making sexual comments about Mr. Perez's butt, with the hope that Crouse would speak to Mr. Grant about it so that the comments would stop. Id. at 13.

• August/September 2019: Crouse reported the inappropriate comments to Grey, who then initiated a Prison Rape Elimination Act (“PREA”) investigation. Upon receiving written notice of the PREA investigation, Mr. Perez told Crouse that he was not asking for a PREA investigation and declined to provide further information. Id.; see also Dkt. No. 103 at 14.

• September 17, 2019: Crouse notified Mr. Perez that the PREA investigation substantiated his claims about Mr. Grant. The same day, Grey notified Mr. Perez that no infraction would be issued against Mr. Grant because he had agreed to stop and stated that he had only been joking. Subsequently, Mr. Perez complained to the Office of the Corrections Ombuds (“OCO”) that DOC staff were not following relevant policy requiring that substantiated PREA investigations be written up as infractions. Dkt. No. 42 at 14-15; Dkt. No. 94-1 at 97; Dkt. No. 103 at 22.

• October 2019: Beginning in October 2019, and up until January 2020, Mr. Perez “filed numerous formal and informal complaints related to [his] cell being entered when [he] was not [there.]” Dkt. No. 42 at 21.

• November 6, 2019: Mr. Perez filed two kites, or written inmate requests, concerning staff's communication toward him and requesting resolution of a prior kite regarding DOC policy related to cell inspections. The first kite specifically named Defendants Douglas McLane (a Corrections Officer at MCC-SOU), Laurence Harrod (a Corrections Officer at MCC-SOU), Michael Wright (also a Corrections Officer at MCC-SOU), and Jeremy Seeley (another Corrections Officer at MCC-SOU). Dkt. No. 42 at 15-16; see also Dkt. No. 94 at 6, 8; Dkt. No. 94-1 at 6, 8.

• November 10, 2019: Mr. Perez noticed McLane in the unit on a “non-regular workday” and observed him “retrieve two items” from the Sergeant Hale's desk. Dkt. No. 42 at 16; see also Dkt. No. 94 at 6; Dkt. No. 94-1 at 10.

• November 11, 2019: Mr. Perez asked Sergeant Hale to review the unit video camera from the prior day, and Hale confirmed that McLane took Mr. Perez's two kites from Hale's office and told Mr. Perez that it would not happen again. That day, McLane told Mr. Perez that he should not have taken the kites and was reprimanded for doing so. Dkt. No. 42 at 17; see also Dkt. No. 94 at 6-7; Dkt. No. 94-1 at 77.

• November 12, 2019: While checking Mr. Perez's cell for “pruno,” a type of prison alcohol, Wright and Harrod spilled liquid (a mixture of bleach and water) on Mr. Perez's property. Harrod gave Mr. Perez a thumb's up sign that he could reenter his cell, but did not mention the spill or leave a form indicating a search had been conducted. Mr. Perez “immediately” sought out Hale to report the issue and Hale confirmed liquid was spilled. Harrod later acknowledged the spill but explained that it was “accidental.” Dkt. No. 42 at 17-19; see also Dkt. No. 94 at 7-8; Dkt. No. 94-1 at 13-36.

• November 16, 2019: Mr. Perez learned that while he was at dinner, Defendants Cameron Johnson (a Corrections Officer at MCC-SOU), Hunter Dire (also a Corrections Officer at MCC-SOU), and McLane were seen taking photographs of items in Mr. Perez's cell. They did not leave a form indicating they had done any inspection of Mr. Perez's cell. When Mr. Perez asked about it, Dire and Johnson stated that there was a safety and security concern “about the placement of a 3” by 4” plastic mirror inside [his] cell.” Dkt. No. 42 at 19; see also Dkt. No. 94 at 8-9; Dkt. No. 94-1 at 42.

• November 17, 2019: Dire told Mr. Perez that McLane presented the mirror concern as a reason to enter his cell. Mr. Perez met with Sergeant Hale and asked him to review the video from the prior day. Upon review, Hale said he saw staff taking pictures but not fully entering Mr. Perez's cell. He also found the pictures that were taken. Dkt. No. 42 at 2022; see also Dkt. No. 94-1 at 42, 44-46, 64.

• November 18, 2019: Mr. Perez attended an E-Unit Tier Representative meeting with Grey and Crouse. He complained of being targeted and harassed by staff. Dkt. No. 42 at 22-23; see also Dkt. No. 94 at 46; Dkt. No. 94-1 at 1, 83.

• January 7, 2020: Mr. Perez quit as Tier Representative. Dkt. No. 42 at 24; see also Dkt. No. 94 at 10; Dkt. No. 94-1 at 85.

• January 8, 2020: Mr. Perez sent Grey a kite expressing that “he had no other option” but to resign as Tier Representative “because he was being ignored when he attempted to address staff harassment.” Dkt. No. 42 at 24; see also Dkt. No. 94 at 11; Dkt. No. 94-1 at 89.

• January 21, 2020: Mr. Perez met with Grey to discuss his grievances, cell search reports, and Tier Representative resignation, as well as “[Melida] Ferrell,^[4] Crouse, and Sergeant Hale's alleged opinions that [he] is a management problem[.]” During the meeting, Grey allegedly said she would like to focus on issues “that effect the majority of the population on E-unit,” and expressed fatigue from responding to Mr. Perez's complaints. Grey reportedly told Mr. Perez that all he does is “retaliate with his pen.” When Mr. Perez told her that “eventually the squeaky wheel gets greased,” Grey responded, “or it gets recalled.” Dkt. No. 42 at 24-25; see also Dkt. No.

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