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REPORT & RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

TONY D. PENWELL, )

)

Plaintiff, ) CASE NO. C05-2106-TSZ-MJB 

)

v. )

)

REED HOLTGEERTS, et al., ) REPORT & RECOMMENDATION 

)

Defendants. )

____________________________________)

INTRODUCTION & SUMMARY CONCLUSION

Plaintiff is incarcerated in the Regional Justice Center (“RJC”) in Kent, Washington. He has

filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that he has been improperly

housed in the “Administrative Segregation” wing of the RJC since his arrest in November 2004. 

Defendants have filed a motion for summary judgment, to which plaintiff has filed a response. Having

reviewed the parties’ submissions, the Court recommends that defendants’ motion for summary

judgment be granted and this action be dismissed. 

FACTUAL BACKGROUND

The following facts are undisputed:

Plaintiff was booked into the RJC on November 3, 2004, as a pretrial detainee awaiting trial on

charges of assault in the first degree, rape in the second degree, unlawful imprisonment, felony

harassment, and tampering with a witness. (Dkt. #82 at 1). On February 17, 2006, plaintiff was

convicted by a jury of these charges. (Dkt. #81, Attachment #1). Plaintiff remains in the custody of

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 Defendants state, and plaintiff does not dispute, that the Ad-Seg unit is the only place where

they can assure that an inmate will be unable to circumvent telephone restrictions. (Dkt. #82 at 2-3). 

Therefore, it is undisputed that in order to effectuate the state court’s orders, plaintiff was required to

be placed in Ad-Seg. 

REPORT & RECOMMENDATION

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the RJC while he awaits the conclusion of a second trial for child molestation. (Id., Attachment #2).

For the bulk of his time at the RJC, plaintiff has been housed in the “Administrative

Segregation” unit (“Ad-Seg”). (Dkt. #82 at 2). This unit houses inmates who for various reasons

must be separated from the general population: they present disciplinary problems, or need to be

protected from other inmates, or, as in plaintiff’s case, they are under a court order that restricts their

use of the telephone and mail.1 (Id.). On November 23, 2004, a state court judge ordered that

plaintiff be barred from making any telephone calls except to his defense counsel, and from sending

out any mail. (Dkt. #82 at Exhibit B). The reason for this order is not disclosed by the record. This

blanket prohibition was revisited by the state court on December 14, 2004 and reaffirmed. (Id.). In

addition, the state court in July 2005 and February 2006, entered “no-contact” orders barring plaintiff

from contacting the victims of his crimes. (Id.).

As a consequence of being housed in the Ad-Seg unit, plaintiff’s living conditions have been

more restrictive than if he were placed with the RJC’s general population. (Dkt. #81 at 11). Because

he is incarcerated in Ad-Seg, plaintiff is limited to one hour outside his cell every day, he is denied

group worship services, and any time he leaves the unit, he must wear restraints while being

transported. (Id. at 14).

PROCEDURAL HISTORY

On December 20, 2005, plaintiff submitted a proposed civil rights complaint, along with an

application for leave to proceed in forma pauperis (“IFP”). (Dkt.#1). The Court denied plaintiff’s

application to proceed IFP because plaintiff had sufficient funds in his inmate trust account to pay the

filing fee. (Dkt. #5). On March 22, 2006, plaintiff paid the filing fee and the Court issued an Order

directing the Clerk to serve the complaint on defendants. (Dkt. #12). Plaintiff subsequently was

granted permission to file an amended complaint on May 10, 2006. (Dkt. #26). 

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Defendants filed their answer on July 6, 2006. (Dkt. #39). On August 18, 2006, the Court

issued an Order setting deadlines for discovery and dispositive motions. (Dkt. #43). The original

deadline for discovery was October 23, 2006. (Id.). Due to discovery disputes and extensions of

time, this period was extended to April 23, 2007. (Dkt. #60). 

On April 24, 2007, defendants filed the instant motion for summary judgment. (Dkt. #81). On

May 8, 2007, plaintiff submitted his response, along with a motion to file an overlength response. 

(Dkt. #92). The Court granted the motion to file an overlength response and the motion for summary

judgment is now ready for review. 

DISCUSSION

Summary judgment is proper only where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The court

must draw all reasonable inferences in favor of the non-moving party. See F.D.I.C. v. O’Melveny &

Meyers, 969 F.2d 744, 747 (9th Cir. 1992), rev’d on other grounds, 512 U.S. 79 (1994). 

The moving party has the burden of demonstrating the absence of a genuine issue of material

fact for trial. See Anderson, 477 U.S. at 257. “When the moving party has carried its burden under

Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to

the material facts. . . .Where 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.” Scott v. Harris, __U.S.__, 127 S. Ct.

1769, 1776 (2007) (internal citation and quotation omitted). Conclusory allegations in legal

memoranda are not evidence, and cannot by themselves create a genuine issue of material fact where

none would otherwise exist. See Project Release v. Prevost, 722 F.2d 960, 969 (2nd Cir. 1983).

In order to sustain a cause of action under 42 U.S.C. §1983, plaintiff must show (i) that he

suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that

the violation was proximately caused by a person acting under color of state law. See Crumpton v.

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 Plaintiff does not challenge the state court’s repeated orders that his telephone and mail

access be restricted. Rather, he challenges only the consequence of these orders, which resulted in his

placement in Ad-Seg.

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Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To satisfy the second prong, plaintiff must allege facts

showing how individually named defendants caused or personally participated in causing the harm

alleged in the Complaint. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).

Defendants argue that their motion for summary judgment should be granted on several

grounds, including qualified immunity. However, the court need address only their argument that

plaintiff has failed to meet his burden of showing a genuine issue of material fact. Because the court

agrees with this argument, it is unnecessary to address defendants’ alternative grounds for summary

judgment.

Although his complaint is not entirely clear, it appears that plaintiff’s chief contention is that

his placement in Ad-Seg violates his constitutional rights because for the bulk of his time there, he was

a pretrial detainee, not convicted of any crime, and the conditions were so restrictive as to constitute

punishment.2

 (Dkt. #26 at 3 and Attachment). See Bell v. Wolfish, 441 U.S. 520 (1979). Under Bell,

an individual, such as plaintiff, who is accused but not convicted of a crime, cannot be subjected to

conditions while detained that amount to “punishment.” 441 U.S. at 536-37. Restrictions amount to

punishment when the restrictions are either expressly intended to punish or where they “serve an

alternative, non-punitive purpose but are nonetheless excessive in relation to the alternative purpose.” 

See Demery v. Arpaio, 37 F. 3d 1020, 1028 (9th Cir. 2004). A restriction that is reasonably related to

a legitimate government goal, such as effective management of the jail or maintenance of internal jail

security and order, will not, without more, constitute punishment. See Bell, 441 U.S. at 440. 

“Conversely, if a restriction or condition is not reasonably related to a legitimate goal – if it is arbitrary

or purposeless – a court permissibly may infer that the purpose of the governmental action is

punishment . . . .” Id. at 539; White v. Roper, 901 F.2d 1501, 1504 (9th Cir. 1990).

In particular, plaintiff complains (1) of his isolation and limited time outside his cell, which he

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3

 Plaintiff also attempts to raise, via his response to defendants’ motion for summary

judgment, a claim that RJC officials have been deliberately indifferent to his medical needs. (Dkt. #92

at 2). However, this claim was not part of plaintiff’s amended complaint and may not be added at this

point to this action. 

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claims has led to physical and psychological deterioration; (2) his lack of opportunity to practice his

religion in group meetings, which he contends has impermissibly infringed upon the exercise of his

religion; and (3) the requirement that he wear restraints while being transported outside the unit.3

(Id.). The Court will address each claim in turn.

Isolation and Limited Time Outside Cell

It is undisputed that due to his placement in Ad-Seg, plaintiff is restricted to one hour outside

his cell per day. (Dkt. #81 at 14). Defendants concede that this policy is restrictive, but maintain that

it is not imposed for punitive purposes. Rather, defendants assert that the policy exists to insure

“institutional security and internal discipline” among the inmates housed in Ad-Seg. (Id.).

In analyzing this issue, the Court is mindful of its limited role in assessing the constitutional

parameters of pretrial detention. Here, the sole question is whether the isolation that plaintiff has been

forced to endure due to his placement in Ad-Seg is reasonably related to a legitimate governmental

goal, such as effective management of the jail or maintenance of internal jail security. 441 U.S. at 539-

40. In addition, corrections officials “must be given wide-ranging deference in the adoption and

execution of policies and practices that in their judgment are needed to preserve internal order and

discipline and to maintain institutional security.” (Id. at 547). 

The limited focus of the Court’s inquiry, coupled with the deference owed to corrections

officials, lead to the conclusion that plaintiff has not met his burden of establishing a genuine issue of

material fact regarding his isolation while in Ad-Seg. While the isolation itself does not appear related

to the telephone restrictions that caused plaintiff to be placed in Ad-Seg, the confinement of inmates in

isolation is reasonably related to the RJC’s goal of preserving the institutional security and internal

discipline among the inmates housed in Ad-Seg. The Court notes that the one-hour per day rule might

not be the least restrictive means of meeting those penological goals, but defendants are not under an

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obligation to narrowly tailor their policies to meet such an exacting standard. As the Supreme Court

stated in Bell: “Courts must be mindful that these inquiries spring from constitutional requirements

and that judicial answers to them must reflect that fact rather than a court’s idea of how best to

operate a detention facility.” 441 U.S. at 539. Therefore, defendants are entitled to summary

judgment on this claim.

Lack of Group Meetings for Religious Service

Plaintiff next claims that while housed in Ad-Seg, he has been denied “all church and prayer

meetings, or any private meetings with the Chaplain or any other religious clergy.” (Dkt. #26,

Attachment at ¶ 29). Plaintiff contends that the only meetings he had with the Chaplain were through

the peep hole in his door, which did not afford him any privacy. (Id. at ¶ 30). This limitation, plaintiff

asserts, violated his First Amendment right to exercise his religion. (Id.).

Defendants maintain that plaintiff’s First Amendment claim fails under both the Bell v. Wolfish

pretrial detainee analysis discussed above and also under the more specific framework for addressing

religious freedom claims in the prison context. (Dkt. #81 at 15-16). The Court agrees. Under Bell,

the restriction on plaintiff’s practice of his religion, i.e., the curtailment of group worship meetings, is

reasonably related to the RJC’s goal of preserving security and discipline among the inmates housed in

Ad-Seg. Under Ninth Circuit precedent governing freedom of religion claims, “[i]n order to reach the

level of a constitutional violation, the interference with one’s practice of religion must be more than an

inconvenience; the burden must be substantial and an interference with a tenet of belief that is central

to religious doctrine.” Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997) (internal quotes

omitted).

Here, plaintiff’s contention that his First Amendment rights were violated by the RJC’s failure

to provide him with the opportunity to attend group worship meetings is without merit. Plaintiff offers

no evidence that his religion, Catholicism, requires that its adherents meet in groups. Accordingly,

defendants are entitled to summary judgment on plaintiff’s First Amendment claim.

Use of Restraints While Being Transported

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Plaintiff’s final claim is that his right as a pretrial detainee to be free from punishment was

violated by the RJC’s practice of making inmates wear restraints while being transported outside of the

Ad-Seg unit. It appears that these restraints are hand cuffs that attach to the waist. (Dkt. #82, Ex. E). 

Plaintiff alleges that he once was forced to wear restraints for two hours while waiting to see a doctor

at the Clinic. (Dkt. #22 at 3). 

In response, defendants maintain that the blanket policy of using restraints while transporting

residents of Ad-Seg is reasonably related to the RJC’s goal of preserving security and discipline. 

Plaintiff attaches an exhibit to his response that supports defendants’ contention: In a memorandum

dated January 29, 2004, RJC officials announced the policy in response to an incident involving an

inmate from Ad-Seg who had refused to be hand-cuffed when being transported from the Clinic back

to the unit. (Plaintiff’s response, Ex. #8). It appears that to eliminate this risk in the future, RJC

officials decided simply to use waist restraints whenever an inmate is transported away from Ad-Seg. 

As with plaintiff’s other claims, the Court finds that under the limited, deferential scope of

review mandated by Bell and its progeny, defendants’ reliance on “institutional security and internal

discipline” (Dkt. #81 at 14) as the goals served by the restraint policy is sufficient to defeat plaintiff’s

claim. These goals are reasonably related to the restraint policy and therefore, this aspect of plaintiff’s

pretrial confinement is not punitive. As the Supreme Court stated in Bell, “[measures] that are

reasonably related to the institution’s interest in maintaining jail security do not, without more,

constitute unconstitutional punishment, even if they are discomforting. . . . ” 441 U.S. at 540. 

Accordingly, defendants are entitled to summary judgment on this claim.

Plaintiff’s Status after Conviction

Finally, the Court addresses whether the above conclusions change when plaintiff’s claims are

reviewed under the standard applicable after he was convicted and sentenced, as opposed to the Bell

v. Wolfish standard that governs his status as a pretrial detainee. Plaintiff was sentenced on February

17, 2006 (Dkt. #81, Attachment #1), and filed his amended complaint in federal court on May 10,

2006. Accordingly, his amended complaint could be interpreted as encompassing claims as a

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convicted inmate as well as a pretrial detainee. Once he was convicted, plaintiff’s claims became

subject to the Eight Amendment’s prohibition against cruel and unusual punishment. See Resnick v.

Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (holding that claim by a convicted prisoner awaiting

sentencing is governed by the Eighth Amendment).

However, as the Supreme Court has stated in describing the contours of the Eight

Amendment, “extreme deprivations are required to make out a conditions-of-confinement claim.” 

Hudson v. McMillian, 503 U.S. 1, 9 (1992). “Because routine discomfort is part of the penalty that

criminal offenders pay for their offenses against society, only those deprivations denying the minimal

civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment

violation.” (Id.). Plaintiff’s claims do not meet this high standard. While undeniably unpleasant, the

conditions he complains of are not “extreme deprivations” that give rise to a constitutional violation. 

Accordingly, the conclusions above do not change under an Eighth Amendment analysis.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment should be granted and

plaintiff’s complaint and this action should be dismissed. A proposed Order accompanies this Report

and Recommendation. 

DATED this 14th day of June, 2007.

AMonica J. Benton

U.S. Magistrate Judge

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