United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATIONS
JOHN V. ACOSTA, Magistrate Judge.
Plaintiff Orlando McCrae ("McCrae"), an inmate at Two Rivers Correctional Institution ("Two Rivers"), filed a pro se civil rights action against three Two Rivers staff members, individually and in their official capacities; Gregory Ransier ("Ransier"), Steven Franke ("Franke"), and James Burchett ("Burchett") (collectively, the "Defendants"); under the First and Fourteenth Amendments of the United States Constitution. McCrae alleges Defendants violated his rights to freedom of speech, freedom of association, due process, and access to the courts by confiscating his legal documents. McCrae further alleges Defendants retaliated against him for filing a grievance with the Oregon Department of Corrections (the "Department").
Currently before the court is Defendants' motion for summary judgment on McCrae's First and Fourteenth Amendment claims. Because no triable issue of fact exists as to whether Defendants violated McCrae's constitutional rights, Defendants' motion for summary judgment should be granted.
Preliminary Procedural Matter
In a motion for summary judgment, if the movant establishes he is entitled to judgment as a matter of law, the non-moving party must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotations omitted). On March 25, 2013, Defendants filed their motion (#48) for summary judgment. On April 1, 2013, this court issued a Summary Judgment Advice Notice (#55) to McCrae instructing him on the nature of Defendants' motion and how to respond. On April 1 and 18, and on August 9, 2013, McCrae filed motions for extension of time (#57, #62, and #67) to file his opposition to Defendants' summary judgment motion. The court granted each of these requests (#58, #63, and #68). Additionally, on November 25, 2013, the court granted McCrae's letter request (#70) for the return of the documents he submitted with his complaint to allow him the opportunity to refer to this evidence while preparing his opposition to the pending motion for summary judgment. The record shows that McCrae's original hard-copy complaint and exhibits were mailed to McCrae on November 25, 2013. The court again extended McCrae's response deadline and allowed him until December 27, 2013, to file his opposition.
Ultimately, McCrae failed to file a response to Defendants' motion. As such, McCrae's opposition rests solely on the contents of his initial pleading. However, the court can consider neither McCrae's complaint, nor the complaint's supporting exhibits, when ruling on Defendants' summary judgment motion. McCrae's complaint is unverified: it does not contain a sworn statement declaring, under penalty of perjury, that his allegations are true and correct in accordance with 28 U.S.C. § 1746. Given this omission, the court cannot treat McCrae's complaint as an affidavit opposing Defendants' summary judgment motion. See Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (stating that a verified complaint may be used as an opposing affidavit under Rule 56 to the extent it expresses personal knowledge of admissible facts but an unverified complaint is insufficient to counter a summary judgment motion supported by affidavits). Furthermore, McCrae failed to lay the proper foundation to authenticate that his complaint's supporting exhibits are what he purports them to be. The court cannot consider unauthenticated materials when considering Defendants' motion for summary judgment. Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987) ("It is well settled that unauthenticated documents cannot be considered on a motion for summary judgment."). Accordingly, the following facts are based exclusively on Defendants' representations, which are not in dispute.
On October 7, 2011, McCrae was being housed in Two Rivers' Disciplinary Segregation Unit ("DSU") when the fire suppression system in his cell activated and sprayed water. (Ransier Decl. ¶ 4; Burchett Decl. ¶ 4). That same day, McCrae filed a grievance with the Department claiming that his legal documents had been damaged by the water. (Burchett Decl. ¶5; Ransier Decl. ¶5).
On October 18, 2011, Ransier, a correctional officer, saw McCrae spreading his paperwork on the floor of his cell as though he was drying it out. (Ransier Decl. ¶ 6). Ransier noted the documents were still wet, even though the sprinklers had discharged ten days prior. (Ransier Decl. ¶ 6). Ransier grew suspicious that McCrae was tampering with the evidence at issue in his grievance. (Ransier Decl. ¶ 6). He reported his observations to the unit captain who instructed Ransier to confiscate the documents for the pendency of the Department's grievance process. (Ransier Decl. ¶ 6).
Two Rivers held McCrae's property in an evidence locker. (Ransier Decl. ¶ 6). McCrae could still gain access to the paperwork if he submitted written proof that he had an "active, pending law suit or court deadline." (Ransier Decl. ¶ 7). McCrae failed to do so during the remainder of his time in DSU. (Ransier Decl. ¶ 8). Twin Rivers released McCrae from DSU to rejoin the general population on November 6, 2011. (Burchett Decl. ¶ 7).
On November 9, 2011, Burchett removed the documents from the evidence locker and met with McCrae to look through them. (Burchett Decl. ¶ 8). McCrae conceded that the papers were minimally damaged - they had minor ink smears and discoloration - and asked if he could sign for their return. (Burchett Decl. ¶ 8). Burchett told McCrae the papers had to remain in the Department's possession until McCrae's grievance was resolved. (Burchett Decl. ¶8).
On November 18, 2011, Twin Rivers placed McCrae back in the DSU for misconduct. (Burchett Decl. ¶ 7). On December 14, 2011, Burchett informed McCrae that his paperwork would be moved from the evidence locker to his DSU storage bin. (Burchett Decl. ¶ 9). At the time, McCrae was on close supervision and not permitted to keep personal property in his cell. (Burchett Decl. ¶ 9). From thereon out, McCrae had access to his property, pursuant to segregation rules. (Burchett Decl. ¶ 9).
Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) (2013). Summary judgment is not proper if material factual issues exist for ...