FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment. (ECF No. 165.) After carefully reviewing the record, the undersigned recommends that defendants' motion be granted in part and denied in part.

II. Procedural Background

This action proceeds on the amended complaint filed August 10, 2010. (ECF No. 24.) On November 19, 2010, defendants filed a motion to dismiss on the grounds that some claims were barred by the statute of limitations and on the grounds that some claims failed to state claims upon which relief may be granted. (ECF No. 38.) On August 24, 2011, the undersigned recommended that defendants' motion to dismiss be granted in part and denied in part. (ECF No. 78.) On September 30, 2011, the Honorable Kimberly J. Mueller adopted the findings and recommendations in part. (ECF No. 79.) Judge Mueller ordered that this action shall proceed on plaintiff's First, Eighth and Fourteenth Amendment claims against defendants Kernan, Walker, Baxter, Baker, Sclafani and Morrow. (Id.) Judge Mueller identified an issue not addressed in the findings and recommendations: how the involvement of defendants O'Brian and Grannis in denying the grievances plaintiff identified in the complaint violated plaintiff's right to access the courts. (Id.) Judge Mueller referred consideration of the access to the courts claim against defendants O'Brian and Grannis to the undersigned. (Id.)

On December 7, 2012, the undersigned issued supplemental findings and recommendations finding that this action should proceed on plaintiff's denial of access to the courts claims against defendants Grannis and O'Brian. (ECF No. 84.) On March 26, 2013, Judge Mueller adopted the December 7, 2012 supplemental findings and recommendations. (ECF No. 89.)

On May 13, 2014, defendants filed a motion for summary judgment on grounds that plaintiff's claims were not administratively exhausted. (ECF No. 147.) On February 9, 2015, the undersigned recommended that defendants' motion be denied. (ECF No. 154.) On March 19, 2015, Judge Mueller adopted the February 9, 2015 findings and recommendations. (ECF No. 156.)

On May 29, 2015, defendants filed the pending summary judgment motion. (ECF No. 165.) In support of the motion, defendants filed 192 pages of exhibits. (ECF No. 165-3.) On September 21, 2015, plaintiff filed his opposition (ECF No. 171) as well as 1384 pages of exhibits. (ECF Nos. 172, 173.) On December 3, 2015, defendants filed a reply. (ECF No. 180.)

III. Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment 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).

Under summary judgment practice, the moving party 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 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c)).

"Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "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.'" Matsushita, 475 U.S. at 586 (citation omitted).

By contemporaneous notice provided on September 13, 2010 (ECF No. 28), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

IV. Plaintiff's Claims

This action proceeds on plaintiff's first amended complaint against defendants Kernan, Walker, Grannis, O'Brian, Baxter, Baker, Sclafani and Morrow. (ECF No. 24.)

Plaintiff alleges that he was housed in administrative segregation ("ad seg") at California State Prison-Sacramento ("CSP-Sac") for 309 days, from May 4, 2005, until plaintiff's transfer to California State Prison-Lancaster ("CSP-LAC") on March 9, 2006. Plaintiff alleges five claims in connection with his placement in and retention in ad seg. First, plaintiff alleges that he was denied his right to due process with regard to the decisions to place him in and to retain him in ad seg pending his transfer to CSP-LAC. Second, plaintiff alleges that the fact and continuation of his ad seg detention violated the Eighth Amendment. Plaintiff also alleges that the physical conditions of ad seg violated the Eighth Amendment. Third, plaintiff alleges that he was denied his First and Fourteenth Amendment rights to freely exercise his religion while housed in ad seg. Fourth, plaintiff alleges that he was denied his right to access the court while housed in ad seg. Fifth, plaintiff alleges that he was retaliated against for filing administrative grievances while housed in ad seg. The undersigned addresses these claims separately herein.

After reviewing the pleadings, the undersigned has discovered that plaintiff was housed in three different ad seg units during the relevant time period.1 From May 4, 2005, through November 14, 2005, plaintiff was housed in B Facility, Building 1. (Baker declaration, ¶ 7.) From November 14, 2005 through December 27, 2005, plaintiff was housed in B Facility, Building 2. (Id.) From December 27, 2005 through March 8, 2006, plaintiff was housed in A Facility, Building 5. (Id.) Plaintiff's claims do not distinguish between these ad seg units. In the discussion of plaintiff's claims herein, where relevant, the undersigned distinguishes between these different ad seg units.

V. Plaintiff's Exhibits

Defendants filed objections to plaintiff's voluminous exhibits. The undersigned has not considered all of these exhibits in evaluating defendants' summary judgment motion, as many are not relevant.

Defendants objected to several of the exhibits the undersigned has considered on the grounds that they are not authenticated. The undersigned may consider exhibits that are not authenticated to the extent they are relevant because they could be made admissible at trial. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (evidence which could be made admissible at trial may be considered on summary judgment); see also Aholelei v. Hawaii Dep't of Pub. Safety, 220 Fed. Appx. 670, 672 (9th Cir. 2007) (district court abused its discretion in not considering plaintiff's evidence at summary judgment, "which consisted primarily of litigation and administrative documents involving another prisoner and letters from other prisoners" which evidence could be made admissible at trial through the other inmates' testimony at trial).

Accordingly, defendants' objections to plaintiff's exhibits on the grounds that they are not authenticated are overruled.

VI. Defendant Grannis

Plaintiff alleges that defendant Grannis violated his constitutional rights in connection with her processing of plaintiff's administrative appeals. Defendant Grannis was the Chief of Inmate Appeals for the California Department of Corrections and Rehabilitation ("CDCR") at all relevant times.

Defendants argue that defendant Grannis should be granted summary judgment in the entirety because she did not review, and was not responsible for reviewing, any documents submitted by plaintiff.

Plaintiff alleges that he made numerous requests to defendant Grannis to remedy problems of retaliation and harassment against him for filing grievances, all to no avail. (ECF No. 24 at 29-30). Plaintiff also cites the May 26, 2006 Director's Level Decision denying his grievance challenging his retention in ad seg. (Id. at 62-63.)

The gravamen of plaintiff's claims against defendant Grannis concern the denial of plaintiff's Third Level Appeal grievance challenging his retention in ad seg and her responses, or lack of responses, to his letters alleging that he was being denied access to the courts. The December 7, 2012 supplemental findings and recommendations detailed plaintiff's claims against defendant Grannis in connection with his claims alleging denial of access to the courts. (ECF No. 84.) The undersigned finds that it is more appropriate to address plaintiff's claims against defendant Grannis in the discussion of the individual claims herein.

VII. Due Process

Plaintiff's due process claim is made against defendants Kernan (CSP-Sac Warden), Walker (CSP-Sac Associate Warden), Grannis (Appeals Coordinator), O'Brian (former Appeals Coordinator) and Baxter (psychologist). (ECF No. 78 at 17.)

A. Legal Standard

Prisoners have a constitutionally protected liberty interest in remaining free from arbitrary segregation. Toussaint v. McCarthy, 801 F.2d 1080, 1097-98 (9th Cir. 1986); Richardson v. Runnels, 594 F.3d 666, 672-73 (9th Cir. 2010). See Sandin v. Conner, 515 U.S. 472, 484 (1995) (prisoner's liberty interest protected by due process triggered by conditions demonstrating "atypical and significant hardship[s] . . . in relation to the ordinary incidents of prison life.")

The process constitutionally due to an inmate placed in segregated housing depends on whether the placement is inherently administrative or disciplinary. Toussaint, 801 F.2d at 1099. In the administrative context, due process requires that prison officials hold an informal nonadversary hearing within a reasonable time after the prisoner is segregated, inform the prisoner of the reasons, and allow the prisoner to present his views. Id. at 1100. A decision to segregate an inmate for administrative reasons must be supported by "some evidence," id. at 1105-06, and periodic review is necessary to maintain the segregated confinement, id. at 1101, quoting Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983) ("administrative segregation may not be used as a pretext for indefinite commitment of an inmate"). The evidence relied upon must have "some indicia of reliability." Madrid v. Gomez, 889 F.Supp. 1146, 1273-74 (N.D.Cal. 1995).2

B. Undisputed Facts

On May 4, 2005, plaintiff appeared before the prison mental health committee for program review. (ECF No. 24 at 21 (plaintiff's verified amended complaint).) On that date, the committee changed plaintiff's level of participation in the mental-health program from Enhanced Outpatient Program ("EOP") to Correctional Clinical Case Management System ("CCCMS"), which resulted in plaintiff's release from the EOP housing unit. (Id.) As a result of this new classification, plaintiff was eligible for placement in the general population. (Id.)

On May 4, 2005, plaintiff asked the committee if he would have safety concerns in the general population, having come from the EOP. (Plaintiff's deposition at 19-20.) In a related grievance, plaintiff explained his safety concerns. (ECF No. 24 at 78-80.) In the grievance, plaintiff wrote that while in the EOP program, he was told by several inmates that he would be stabbed or killed if he went into either of the "other two" general population facilities at CSP-Sac, i.e., B and C facilities. (Id. at 78-80; defendants' Exhibit 1.) Plaintiff did not qualify for placement in A Facility because it was considered a "soft" yard, which housed inmates that would have safety concerns on any general population facility. (Walker declaration, ¶ 17.) Plaintiff's case factors were not compatible with the inmates housed on the A Facility, so his placement there could have endangered other inmates. (Id.) Plaintiff requested that he be transferred to a prison in southern California so that he could be close to his mother. (Defendants' Exhibit F.)

The mental health committee remanded plaintiff to administrative segregation pending an investigation into the safety concerns raised by plaintiff at the hearing. (Defendants' Exhibit A.) The investigation was conducted by a non-defendant, Officer Smith. (Id.)

That same day, plaintiff was given a notice explaining the reason for his placement in ad seg. (Plaintiff's deposition at 20-21; defendants' Exhibit A (notice to plaintiff).) The notice indicates that plaintiff refused to sign it. (Defendants' Exhibit A.)

None of the defendants sat on the May 4, 2005 mental health committee were responsible for placing plaintiff in ad seg on that date.3 (Defendants' Exhibit F (document listing committee members).)

On May 11, 2005, defendants Kernan and Baxter participated in the committee reviewing plaintiff's placement in ad seg. (Defendants' Exhibit B.) The committee elected to retain plaintiff in ad seg because the investigation into plaintiff's security concerns was not complete. (Id.) Defendant Walker signed the chrono from the May 11, 2005 hearing in place of defendant Kernan, because defendant Kernan was unavailable at the time it was issued. (Walker declaration, ¶ 8.)

On June 15, 2005, plaintiff appeared before the committee for review of his ad seg placement. (Defendants' Exhibit C.) Defendants Walker and Baxter participated in this committee. (Id.) The committee elected to retain plaintiff in ad seg pending his transfer to either California State Prison-Lancaster or California State Prison-Corcoran. (Defendants' Exhibit C.)

On September 14, 2005, plaintiff appeared before the committee for review of his ad seg placement. (Defendants' Exhibit D.) Defendants Walker and Baxter participated in this committee. (Id.) The committee elected to retain plaintiff in ad seg pending his transfer. (Id.)

On December 14, 2005, plaintiff appeared before the committee for review of his ad seg placement. (Defendants' Exhibit E.) Defendants Walker and Baxter participated in this committee. (Id.) The committee elected to retain plaintiff in ad seg pending his transfer. (Id.)

Plaintiff was transferred to CSP-LAC in March 2006.

Mental health staff sometimes sit on classification committees to provide custody staff with information pertaining to an inmate's mental health treatment needs, and ability to participate in and understand the committee. (Walker declaration, ¶ 1.) While mental health staff have authority over inmates' treatment decisions, such as whether an inmate qualifies for participation in the EOP mental health program, they lack authority over custodial decisions, such as whether to place an inmate in the ad seg unit or release him to the general population.4 (Id.)

C. Analysis

1. May 4, 2011 Hearing

It is undisputed that no defendant participated in the May 4, 2011 initial decision to place plaintiff in ad seg. Therefore, plaintiff cannot state a due process claim against defendants based on the May 4, 2011 initial decision to place him in ad seg. Accordingly, defendants should be granted summary judgment as to plaintiff's due process claim regarding the May 4, 2011 hearing.

2. May 11, 2005, June 15, 2005, September 14, 2005, December 14, 2005 Hearings

It is undisputed that plaintiff received periodic reviews of the initial decision to retain him in ad seg, at which time he was allowed to present his views. Accordingly, the undersigned finds no due process violation based on the frequency of the hearings and plaintiff's ability to present his views. The gravamen of plaintiff's due process claim is that he was not informed of the reasons for the decisions to retain him in ad seg and that the decisions to retain him in ad seg were not supported by some evidence.

a. May 11, 2005 Hearing

The undersigned first finds no due process violation at the May 11, 2005 hearing. The chrono from this hearing states that plaintiff was retained in ad seg because plaintiff's safety concerns, expressed at the May 4, 2005 hearing, were still under investigation by Officer Smith. (Defendants' Exhibit B.) The chrono indicates that plaintiff received notice of this reason to retain him in ad seg. (Id.) The undersigned finds that the pending investigation into the safety concerns expressed by plaintiff was sufficient grounds, i.e., "some evidence," on which to retain plaintiff in ad seg.

Defendants Kernan and Baxter are the only defendants who participated at this hearing. Accordingly, defendants Kernan and Baxter are entitled to summary judgment as to plaintiff's claim that he was denied due process at the May 11, 2005 hearing.

b. June 15, 2005, September 14, 2005 and December 14, 2005 Hearings

Was Defendant Walker's Decision to Retain Plaintiff in Ad Seg Supported by Some Evidence?

The undersigned next considers whether the decisions to retain plaintiff in ad seg made by defendant Walker at the June 15, 2005, September 14, 2005, and December 14, 2005 hearings were supported by some evidence with indicia of reliability. According to defendant Walker, these committees decided to retain plaintiff in ad seg pending his transfer for the following reasons:

(Walker declaration, ¶¶ 17-20.)

As discussed above, it is undisputed that plaintiff did not qualify for placement in A Facility.

According to defendant Walker, plaintiff did not qualify for placement on B or C Facility because 1) he associated with the Surenos; 2) the Surenos were known to attack other Surenos with R suffixes; and 3) the Surenos were known to attack other Surenos who had been in the EOP program. It is undisputed that plaintiff had been in the EOP program and had an R suffix. (See ECF No. 173 at 477 (chrono stating plaintiff has R suffix); ECF No. 172 at 100 (chrono stating that plaintiff had a sex offense.).

For the reasons stated herein, the undersigned finds that the issue as to whether plaintiff was affiliated with a prison gang, and whether defendant Walker actually relied on plaintiff's gang affiliation to retain plaintiff in ad seg, are materially disputed facts.

The undersigned first addresses the issue of whether defendant Walker relied on plaintiff's gang affiliation to retain plaintiff in ad seg. Plaintiff argues that defendants' claim that he was retained in ad seg because of his alleged gang affiliation appears to be an explanation made up "after the fact." Plaintiff indicates that he did not know that he was retained in ad seg because of his alleged gang affiliation until he received defendants' summary judgment motion. The undersigned finds support for this argument.

The June 15, 2005, September 14, 2005, and December 14, 2005 chronos do not state why plaintiff was retained on ad seg. Instead, without further explanation, these chronos state that plaintiff was retained in ad seg after a review of plaintiff's CDC 114D (i.e., the May 4, 2005 notice placing plaintiff in ad seg), plaintiff's central file, case factors and a thorough discussion with plaintiff. (Defendants' Exhibits C, D, E.) None of these chronos say anything about plaintiff's alleged gang affiliation or that plaintiff was retained in ad seg due to safety concerns. (Defendants' Exhibits C, D, E.) These chronos do not reference the May 11, 2005 chrono stating that plaintiff told the committee that he was "Southside." While the September 14, 2005 and December 14, 2005 chronos state that plaintiff was retained on single cell and walk alone yard due to localized safety concerns, these chronos do not describe those safety concerns. (Defendants D, E.) In his declaration, defendant Walker does not state that he told plaintiff at these hearings that he was being retained in ad seg based on security concerns posed by his alleged gang affiliation.

The June 15, 2005 chrono actually suggests that plaintiff may have been retained in ad seg for reasons other than his alleged gang status. The June 15, 2005 chrono states that Correctional Officer Smith's report was complete and, based on that report, the committee believed that plaintiff had local safety issues and should be transferred to Lancaster or Corcoran. (Defendants' Exhibit C.) This finding appears to contradict the statement by defendant Walker in his declaration that Officer Smith found no safety concern. Thus, the June 15, 2005 chrono suggests that plaintiff was retained in ad seg for reasons other than the statement in the May 11, 2005 chrono that plaintiff had said he was gang affiliated. The undersigned also observes that the statements in the September 14, 2005 and December 14, 2005 chronos that plaintiff was retained on single cell and walk alone yard due to localized safety concerns mirror the language in the June 15, 2005 chrono that plaintiff was to be transferred based on local safety issues found by Officer Smith. The report by Officer Smith is not in the court file.

For the reasons discussed above, the undersigned finds that whether defendant Walker relied on plaintiff's alleged gang affiliation to retain him in ad seg is disputed.

For the reasons stated herein, the undersigned further finds that whether the May 11, 2005 chrono was "some evidence" of plaintiff's gang affiliation, with indicia of reliability, is a materially disputed fact. In relevant part, the chrono reports that plaintiff stated at this hearing, "I am with Southside." (Defendants' Exhibit B.) Defendants cite no other evidence supporting the finding that plaintiff was associated with the Sureno gang.

Conversely, in his verified statement of undisputed facts, plaintiff states that "on May 4, 2005 and all later related committee dates were [sic] instructed by plaintiff he was not a gang member or associate in any type or form and his family lives only in the southside of California, no northern California prisons."6 (ECF No. 171 at 12.) The June 15, 2005 chrono states that plaintiff stated, "I want to go down south to be closer to my mother." (Defendants' Exhibit C.)

In his opposition, plaintiff also cites a July 8, 2004 classification committee chrono, signed by defendant Walker, stating that plaintiff had no gang affiliations. (ECF No. 172 at 100.) The chronos from the June 15, 2005, September 14, 2005, and December 14, 2005 committee hearings all state that the committees reviewed plaintiff's central file, which presumably contained this chrono. (Defendants' Exhibits C, D, E.) Defendants do not explain how defendant Walker considered the July 8, 2004 chrono.

Plaintiff's allegations that he told the committees that he was not associated with any gang, that he wanted to go "down south" to be closer to his mother, the July 8, 2004 chrono stating that he was not gang affiliated, and the lack of any other evidence linking plaintiff to the Sureno gang, undermine the credibility of the statement in the May 11, 2005 chrono that plaintiff stated that he was associated with the Surenos. Based on this evidence, which plaintiff alleges defendant Walker had knowledge of, the undersigned finds that the May 11, 2005 chrono potentially lacked indicia of reliability. The evidence suggests that the statement in the May 11, 2005 chrono that plaintiff was "southside" could also have meant to reflect plaintiff's request to be housed near his mother rather than any alleged gang affiliation.

In his declaration, defendant Walker also states that in his experience, inmates sometimes deny having asserted a valid safety concern once they realize it will affect their housing. (Walker declaration, ¶ 16.) Defendant Walker states that prison policy dictates that safety and security take precedent over all other security concerns and, as part of plaintiff's committee, he was responsible for determining whether a valid safety concern existed. (Id.) Defendant Walker may be suggesting that even if plaintiff later denied having told the May 11, 2005 committee that he was associated with a gang, defendant Walker was entitled to disregard this statement because plaintiff may have disavowed it once he realized it would affect his housing. The problem with this argument is that, according to defendants, at the May 4, 2011 hearing plaintiff expressed concerns regarding his safety in the general population. Therefore, plaintiff appeared to be aware of his own safety issues and showed a willingness to express them. Defendants' claim that plaintiff was willing to be housed in the general population regardless of safety concerns is inconsistent with plaintiff's actions at the May 4, 2011 hearing.

Defendants argue that "[t]he Constitution demands due process, not error-free decision making." See Shotwell v. Brandt, 2012 WL 6569402 at *2 (N.D. Cal. 2012). In other words, defendants argue that even if the May 11, 2005 chrono mistakenly stated that plaintiff reported affiliation with the Sureno gang, they were entitled to rely on it in retaining plaintiff in ad seg. The undersigned agrees that reliance on information that later proves false may not violate due process if the information had indicia of reliability at the time the decision was made. However, for the reasons discussed above, the undersigned cannot find that the information relied on to retain plaintiff in ad seg necessarily had indicia of reliability at the times it was relied on by defendant Walker to justify his decisions to retain plaintiff in ad seg.

For the reasons discussed above, the undersigned finds that defendant Walker should be denied summary judgment as to plaintiff's claim that defendant's decisions to retain plaintiff in ad seg on June 15, 2005, September 14, 2005, and December 14, 2005 were not supported by some evidence in violation of plaintiff's right to due process.

Did Defendant Walker Provide Plaintiff with Adequate Notice of the Reasons Plaintiff Was Retained in Ad Seg?

Defendant Walker claims that plaintiff was retained in ad seg on June 15, 2005, September 14, 2005, and December 14, 2005 based on safety concerns posed by plaintiff's gang affiliation. Defendant Walker states that the finding that plaintiff was gang affiliated was based on the statement in the May 11, 2005 chrono that plaintiff told the committee that he was associated with the Surenos.

As discussed above, the June 15, 2005, September 14, 2005, and December 14, 2005 chronos do not specifically state why plaintiff was retained in ad seg. The June 15, 2005 chrono states that plaintiff should be transferred due to local safety issues, and the September 14, 2005 and December 14, 2005 chronos state that plaintiff should be single-celled and placed on walk alone yard due to "localized safety" issues. However, these local safety issues are not explained. In his declaration, defendant Walker does not state that he told plaintiff at these hearings that he was being retained in ad seg based on security concerns posed by his alleged gang affiliation. At his deposition, plaintiff testified that he was not told at the committee hearings why he was being retained in ad seg other than being told it was for general security and safety reasons.

Citing plaintiff's deposition transcript, defendants claim that plaintiff was told the reasons he was retained in ad seg. However, plaintiff testified that he was not told why he was being retained in ad seg other than based on general safety and security issues. (Plaintiff's deposition at 46: 20-46; 47: 1-8; 51: 23-25; 53: 24-25; 54: 1-7; 54: 24-25; 55: 1-22; 56: 17-25.) In other words, plaintiff did not testify that he was told that he was being housed in ad seg due to safety concerns raised by his gang affiliation. Plaintiff's alleged gang affiliation was not discussed at the deposition.

While due process in the administrative segregation context does not require detailed written notice of the charges or even a written description of the reasons for placing the prisoner in administrative segregation, see Toussaint, 801 F.2d at 1100-01, the Supreme Court has held that the level of due process due prisoners before being placed in administrative segregation includes "some notice" of the charges. Hewitt v. Helms, 459 U.S. 460, 476 (1983). In Taylor v. Rodriguez 238 F.3d 188, 193 (2d Cir. 2001), the Second Circuit held that the constitutional requirements for notice in administrative segregation should be similar to the notice requirement in disciplinary segregation, and should contain specific allegations of conduct of involvement with a prison gang, not merely vague, unspecific charges of being involved. Id. ("[a] hearing is not meaningful if a prisoner is given inadequate information about the basis of the charges against him. A prisoner should not . . . have to guess what conduct forms the basis for the charges against him.").

Defendants have not demonstrated that plaintiff received adequate notice of the reasons he was being retained in ad seg. At best, the record demonstrates that plaintiff was generally informed that he was being retained for security and safety reasons. However, these vague, unspecific reasons did not adequately inform plaintiff of the reasons he was being retained. According to plaintiff's deposition transcript and opposition, he did not know that he was being retained in ad seg based on an alleged gang affiliation until he received defendants' summary judgment motion. If plaintiff was not informed that his retention was gang related at the committee hearings, then plaintiff did not receive adequate notice of the reasons for his retention in ad seg. For these reasons, defendant Walker should be denied summary judgment as to this claim.

Defendant Baxter

Defendant Baxter, a psychologist, attended the May 11, 2005, June 15, 2005, September 14, 2005, and December 14, 2005 hearings. It is undisputed that defendant Baxter had no authority over the decision regarding whether to place plaintiff in the general population or to retain him in ad seg. On these grounds, defendants move for summary judgment as to defendant Baxter.

Because it is undisputed that defendant Baxter had no authority over the decision regarding whether to place plaintiff in the general population or retain him in ad seg, defendant Baxter should be granted summary judgment as to plaintiff's due process claims.

Defendants O'Brian and Defendant Kernan

Plaintiff alleges that his grievance challenging his retention in ad seg was improperly denied. Defendants O'Brian and Kernan participated in the second level denial of grievance no. 05-1022, aka SAC 0502084, challenging plaintiff's retention in ad seg.

In his declaration, defendant Walker states that he reviewed grievance 05-1022, aka SAC 05-02084 in defendant Kernan's place:

Walker declaration, ¶ 27.

The Civil Rights Act under which this action was filed provides as follows:

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person `subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).

Because defendant Kernan did not participate in the review of this grievance, the undersigned recommends that defendant Kernan be granted summary judgment as to plaintiff's claim that defendant Kernan's review of this grievance violated his right to due process in connection with his retention in ad seg.

In his declaration, defendant O'Brian discusses grievance no. 05-1022, in relevant part, as follows,

(O'Brian declaration.)

Copies of the documents relevant to grievance no. 05-1022, aka SAC 0502084, are attached as defendants' Exhibit H. After reviewing these documents, the undersigned finds that defendant O'Brian's description of these documents is accurate.

Ratification of an unconstitutional act by superiors after the fact will only support liability when the superiors' past actions were the moving force behind the constitutional violation in the first place. Williams v. Ellington, 936 F.2d 881, 884-885 (9th Cir. 1991). This court is unwilling to adopt a rule that anyone involved in adjudicating grievances after the fact is per se potentially liable under a ratification theory. However, this is not to say that persons involved in adjudicating administrative disputes, or persons to whom complaints are sometimes made, can never be liable. If, for example, a reviewing official's rejections of administrative grievances can be construed as an automatic whitewash, which may have led other prison officials to have no concern of ever being reprimanded, a ratifying official may be liable for having put a defective policy in place.

The undersigned does not find that the processing or denial of grievance no. 05-1022 by defendant O'Brian violated plaintiff's right to due process. There is no evidence that past actions by defendant O'Brian were the moving force behind the alleged deprivation, i.e., plaintiff's continued retention in ad seg. The undersigned further finds that the denial of plaintiff's second level grievance was not an "automatic whitewash" of the alleged deprivation, as evidenced by plaintiff being provided with the classification documents pertaining to his ad seg placement. If defendant O'Brian was attempting to "whitewash" the alleged deprivation, then plaintiff would not have been provided with these documents. Accordingly, for these reasons, the undersigned recommends that defendant O'Brian be granted summary judgment with respect to plaintiff's due process claims.

Defendant Grannis

Plaintiff alleges that defendant Grannis improperly denied grievance no. 05-1022 challenging his retention in ad seg.

It is undisputed that on May 26, 2006, plaintiff's Third Level Appeal challenging his continued retention in ad seg, i.e., grievance no. 05-1022, was denied at the Third Level of Review. (ECF No. 172-1 at 209-10.) While the Third Level Response contains defendant Grannis's name typed at the end, defendant Grannis did not sign the response. (Id. at 210.) Plaintiff's appeal was denied as moot because he was no longer housed at CSP-Sac. (Id. at 209-10).

Defendants move for summary judgment as to this claim on grounds that defendant Grannis did not review grievance no. 05-1022. In support of this argument, defendants make the following arguments.

From the time plaintiff entered CDCR custody in 2004 until his transfer away from CSP-Sac in March 2006, plaintiff filed one grievance that was accepted for third level review: No. 05-1022. (Voong declaration, ¶ 7.)

Defendant Grannis was employed by the California Department of Corrections and Rehabilitation ("CDCR") as Chief of the Inmate Appeals Branch ("IAB") from 2002 through her retirement in December 2009, and for three additional months was a retired annuitant. (Grannis Declaration, ¶ 1.) The IAB provides the third and final level of review in CDCR's administrative grievance process. (Id. at ¶ 2.) In her declaration defendant Grannis goes on to state, in relevant part,

(Grannis Declaration, ¶¶ 4-14.)

Defendants have presented evidence that defendant Grannis had no substantive role in the processing of the grievance filed by plaintiff regarding his continued retention in ad seg. Plaintiff has provided no evidence demonstrating that defendant Grannis participated in the processing of this grievance.

Because defendant Grannis did not participate in the processing of plaintiff's grievance challenging his continued retention in ad seg, defendant Grannis should be granted summary judgment as to this claim.

3. Qualified Immunity

As discussed above, the undersigned recommends that all defendants except for defendant Walker be granted summary judgment with respect to plaintiff's due process claim. Accordingly, the undersigned considers defendants' argument for qualified immunity with respect to defendant Walker only.

"The doctrine of qualified immunity protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Resolving the defense of qualified immunity involves a two-step process; the court must determine (1) whether the plaintiff has alleged or shown a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of defendant's alleged misconduct. Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201-02 (2001)). These steps may be analyzed in any order. Id. at 236.

"Qualified immunity is applicable unless the official's conduct violated a clearly established constitutional right." Pearson, 555 U.S. at 232. To be clearly established "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). "[E]xisting precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011); see also Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) ("The proper inquiry focuses on . . . whether the state of the law [at the relevant time] gave `fair warning' to the officials that their conduct was unconstitutional.") (quoting Saucier, 533 U.S. at 202).

First, for the reasons discussed above, the undersigned finds that defendant Walker potentially violated plaintiff's right to due process because the decisions to retain plaintiff in ad seg were not supported by some evidence. Whether defendant Walker actually relied on plaintiff's self-proclaimed gang affiliation, contained in the May 11, 2005 chrono, to justify plaintiff' retention is not clear. Moreover, to the extent defendant Walker relied on the May 11, 2005 chrono as proof of plaintiff's gang affiliation, this chrono lacked indicia of reliability. The undersigned further finds, for the reasons discussed above, that defendant Walker potentially violated plaintiff's right to due process by not giving plaintiff adequate notice of the reasons he was retained in ad seg.

It is difficult to evaluate the second prong of the qualified immunity analysis with respect to plaintiff's due process claim because it is not clear why defendant Walker retained plaintiff in ad seg. However, to the extent defendant Walker relied on the May 11, 2005 chrono, for the reasons discussed above, the undersigned finds that a reasonable prison official would have potentially known that this chrono lacked indicia of reliability with respect to plaintiff's alleged gang affiliation. Thus, a reasonable officer would have known that relying on this chrono alone to retain plaintiff in ad seg violated plaintiff's right to due process.

With respect to plaintiff's claim alleging that defendant Walker did not give him adequate notice of the reasons he was detained in ad seg, the undersigned finds that a reasonable prison official would know that only telling an inmate that he was being in retained in ad seg, month after month, based on unspecified "security concerns" violated due process.

For these reasons, defendant Walker should not be granted qualified immunity.

VIII. Eighth Amendment

Plaintiff alleges that the fact and continuation of his ad seg detention violated the Eighth Amendment. This claim is made against defendants Kernan, Walker, Grannis, O'Brian and Baxter. (ECF No. 78 at 18.) Plaintiff also alleges that the physical conditions of ad seg violated the Eighth Amendment. This claim is made against defendants Kernan, Walker, Grannis, O'Brian, Baxter, Baker and Sclafani. (Id.)

A. Retention in Ad Seg

The findings and recommendations addressing defendants' motion to dismiss described this claim as follows:

(ECF No. 78 at 19.)

In the summary judgment motion, defendants first argue that plaintiff has repeatedly asserted that he was "incorrectly labeled" with mental illness, and that his diagnoses were mere pretext. (ECF No. 165-1 at 25.) Thus, defendants argue, any theory that plaintiff's mental health diagnoses precluded his placement in ad seg should not preclude summary judgment. (Id.)

While plaintiff claims that he did not suffer from any mental illness, it is undisputed that he was in the EOP Program and then transferred to the CCCMS program. While plaintiff alleges that he did not suffer from mental illness, the evidence suggests otherwise.

Defendants next argue that they are entitled to summary judgment as to this claim because there is no evidence that plaintiff's purported mental illness presented a substantially serious risk that could be exacerbated because of his ad seg placement.

As noted above, plaintiff was classified as "CCCMS" while he was housed in ad seg. "The Correctional Clinical Case Management System (CCCMS) provides mental health services to seriously mentally ill inmates with `stable functioning in the general population, Administrative Segregation Unit (ASU) or Security Housing Unit (SHU)' whose mental health symptoms are under control or in `partial remission as a result of treatment.'" Coleman v. Brown, 28 F.Supp.3d 1068, 1074 (E.D.Cal. 2014) (citations omitted). "CCCMS is the lowest level of care in the State's prison mental health delivery system, and is designed to provide a level of care equivalent to that received by non-incarcerated patients through outpatient psychiatric treatment." Lemire v. CDCR, 726 F.3d 1062, 1069 (9th Cir. 2013).

To succeed on a claim that his retention in ad seg violated his Eighth Amendment rights based on his mental illness, plaintiff must demonstrate some harm to his mental illness. See Madrid v. Gomez, 889 F.Supp. 1146, 1264 (N.D. Cal. 1995.) For example, plaintiff could demonstrate that his mental illness decompensated while he was housed in ad seg. In the instant case, plaintiff has not demonstrated that his incarceration in ad seg caused any harm to his mental illness. For this reason, defendants should be granted summary judgment as to this claim.7

B. Conditions of Ad Seg

Plaintiff alleges an Eighth Amendment claim based on the conditions of ad seg against defendants Kernan, Walker, Grannis, O'Brian, Baxter, Baker and Sclafani. Plaintiff alleges the following specific conditions that allegedly violated the Eighth Amendment: 1) inadequate lighting in his cell; 2) inadequate ventilation, which made it hot in the summer and cold in the winter; 3) his toilet and sink leaked, causing unsanitary puddles of water; 4) inadequate access to outdoor exercise; 5) inadequate access to clean clothing and clean linen; 6) no hot water in the cell; 7) inadequate access to cleaning supplies; and 8) inadequate food.

The undersigned observes that defendants do not generally argue that the conditions in ad seg did not violate the Eighth Amendment. Instead, defendants generally argue that they were not responsible for any alleged deprivation.

The undersigned again observes that it is undisputed that plaintiff was housed in different ad seg units during the relevant time period. Plaintiff was housed in B Facility, Building 1, from May 4, 2005, through November 14, 2005. (Baker declaration, ¶ 7.) On November 14, 2005, plaintiff was transferred to B Facility, Building 2. (Id.) On December 27, 2005, plaintiff was transferred to A Facility, Building 5, where he remained until his March 8, 2006 transfer. (Id.)

Plaintiff's complaints regarding the conditions in ad seg do not appear to distinguish between these different ad seg units. Thus, it appears that plaintiff is arguing that he suffered all of the alleged Eighth Amendment violations in each of the ad seg units in which he was housed.

1. Legal Standard

The Eighth Amendment proscribes conditions of confinement constituting cruel and unusual punishment. The Eighth Amendment's prohibition against cruel and unusual punishment imposes duties on prison officials to "provide humane conditions of confinement." Farmer v. Brennan, 511 U.S. 825, 832 (1994). To establish a violation of the Eighth Amendment, a prisoner must show that he was objectively deprived of something "sufficiently serious." Id. at 834. A deprivation is sufficiently serious when the prison official's act or omission results "in the denial of `the minimal civilized measure of life's necessities.'" Id., quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Next, the prisoner must show that the deprivation occurred as a result of deliberate indifference to the inmate's health or safety; this determination is premised on an assessment of the prison official's subjective state of mind. Id., citing Wilson v. Seiter, 501 U.S. 294, 302-03 (1991).

A prison official who knows of and disregards an excessive risk to the inmate's health or safety demonstrates deliberate indifference. Farmer v. Brennan, 511 U.S. at 837. Thus, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Id. However, an official that knows of a substantial risk to an inmate's health or safety but acts reasonably under the circumstances will not be held liable under the cruel and unusual punishment clause, even if the threatened harm results. See id. at 843.

2. Defendant Grannis

Plaintiff bases defendant Grannis's liability for his Eighth Amendment claim challenging the conditions in ad seg on her processing of grievance no. 05-1022, which was denied at the third level review. Defendants argue that defendant Grannis should be granted summary judgment because she did not know about the alleged conditions of ad seg.

As discussed above, defendants have presented undisputed evidence that from the time plaintiff entered CDCR custody in 2004 until his transfer away from CSP-Sac in March 2006, plaintiff filed one grievance that was accepted for third level review: No. 05-1022. (Voong declaration, ¶ 7.) While the memorandum denying this grievance at the third level of review contains defendant Grannis's name typed at the end, defendant Grannis did not sign the response. (ECF No. 172-1 at 209-10.) In her declaration, defendant Grannis states that she had no substantive role in the processing of this appeal, and was not responsible for any of the response. (Id. at ¶ 12.)

Defendants have presented evidence that defendant Grannis had no substantive role in the processing of grievance no. 05-1022. Plaintiff has provided no evidence demonstrating that defendant Grannis participated in the processing of this grievance or otherwise had knowledge of the conditions of ad seg. For these reasons, defendant Grannis should be granted summary judgment as to plaintiff's Eighth Amendment claim challenging the conditions of ad seg.

3. Defendant Baxter

Defendants argue that defendant Baxter, the psychologist who participated at the committee hearings reviewing plaintiff's retention in ad seg, should be granted summary judgment as to Eighth Amendment claim challenging the conditions of ad seg. Defendants argue that defendant Baxter had no authority over the conditions in ad seg. In support of this claim, defendants cite defendant Walker's declaration which states, in relevant part,

(Walker declaration, ¶ 11.)

Defendants have presented evidence that defendant Baxter had no authority over the conditions in ad seg, and plaintiff has presented no evidence contradicting this evidence. Because defendant Baxter had no authority over the conditions in ad seg, she cannot be liable for any of the unconstitutional conditions that allegedly existed while plaintiff was confined in ad seg. Accordingly, defendant Baxter should be granted summary judgment as to this claim.

4. Defendant Kernan

Defendants move for summary judgment as to plaintiff's Eighth Amendment claim against defendant Kernan, the Warden, on the grounds that plaintiff did not inform defendant Kernan of any ad seg conditions, except law library access. In support of this argument, defendants cite defendant Walker's declaration which states, in relevant part,

Walker declaration, ¶ 27.

Defendants also cite plaintiff's deposition testimony at pages 32-34 and 92.

At page 92 of his deposition, plaintiff testified that, "—basically, from the beginning when I saw Kernan, I told him that I need my legal property . . ." (Plaintiff's deposition at 92.) At page 33, plaintiff testified that he asked defendant Kernan if he could get his legal property. (Id. at 33.) From this testimony, defendants infer that when plaintiff saw defendant Kernan, he only asked defendant Kernan about his legal property, and raised no other conditions of confinement.

In his opposition, citing his deposition testimony, plaintiff alleges that he repeatedly gave defendant Kernan notice of the alleged Eighth Amendment violations. (ECF 171 at 17.) The undersigned has reviewed the deposition testimony cited by plaintiff. At his deposition, plaintiff testified that he told defendant Kernan about the inadequate conditions in ad seg when defendant Kernan walked the ad seg tiers. At page 84-85, plaintiff testified,

(Plaintiff's deposition at 84-85 (emphasis added).)

Plaintiff also testified that he gave defendant Kernan a grievance alleging that he was not receiving yard access:

(Plaintiff's deposition at 89-90.)

The undersigned agrees with defendants that defendant Kernan did not receive notice of the at-issue conditions in ad seg from grievance S-05-02084 because he did not participate in the review of this grievance. However, the undersigned does not find that the other evidence cited by defendants, i.e., plaintiff's deposition transcript, demonstrates that plaintiff did not make defendant Kernan aware of the at-issue conditions in ad seg.

At his deposition, plaintiff clearly testified that he handed defendant Kernan a grievance alleging inadequate outdoor exercise when defendant Kernan "walked the tier one day." Plaintiff's testimony that he and other inmates shouted out their concerns regarding ad seg conditions to defendant Kernan on another occasion as he walked the tier is less persuasive evidence of defendant Kernan's knowledge of the ad seg conditions.8 Nevertheless, the undersigned finds that plaintiff's deposition testimony cited above is sufficient to create a materially disputed fact regarding whether defendant Kernan had knowledge of the at-issue conditions in all three of the ad seg units in which plaintiff was confined. Accordingly, defendant Kernan should be denied summary judgment as to this claim.

5. Defendant Walker

Defendants argue that defendant Walker should be granted summary judgment as to plaintiff's Eighth Amendment claim challenging the conditions of ad seg on the grounds that he did not deliberately disregard any condition of confinement. Defendants argue that defendant Walker consistently relied on his staff, whom he trusted and believed to be capable and competent, to investigate and respond to any complaints.

In support of their argument that defendant Walker did not act with deliberate indifference, defendants cite the following sections of defendant Walker's declaration:

(Walker declaration, ¶¶ 21-22.)

In essence, defendant Walker argues that it was not his job to personally investigate inmate complaints regarding ad seg conditions. Defendant Walker states that it was the job of other prison officials he supervised, which apparently included other members of plaintiff's classification committee, i.e., Sergeant Kurkrall, Correctional Counselor Lunch and Correctional Counselor Forrester, to investigate inmate complaints regarding conditions of confinement. Defendant Walker states that if an inmate was unhappy with the results of an investigation, they could file an administrative grievance.

At his deposition, plaintiff testified that he complained about ad seg conditions at the June 15, 2005, September 14, 2005, and December 14, 2005 committees.9 Plaintiff also testified that he handed defendant Walker a grievance alleging that he was not receiving adequate outdoor exercise. (Plaintiff's deposition at 89.)

"In a § 1983 or a Bivens action — where masters do not answer for the torts of their servants — the term `supervisory liability' is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A supervisor may be liable under Section 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. See Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). Supervisor liability is established by showing the supervisor's knowing acquiescence to Eighth Amendment violations that are based upon deliberate indifference. See Oregon State University Student Alliance v. Ray, 699 F.3d 1053, 1074-75 & n.18 (9th Cir. 2012).

While defendant Walker may have delegated the authority to review plaintiff's complaints regarding the ad seg conditions to other prison officials he supervised, plaintiff alleges that he repeatedly complained about the alleged Eighth Amendment violations at the June 15, 2005, September 14, 2005, and December 15, 2005 committee hearings. Plaintiff's complaints at the September 14, 2005, and December 15, 2005 committee hearings suggested that the prison officials who defendant Walker supervised had not responded to plaintiff's complaints. Based on plaintiff's repeated complaints, the record suggests that defendant Walker knowingly acquiesced to the alleged Eighth Amendment violations. Based on these circumstances, the undersigned cannot find that defendant Walker did not act with deliberate indifference when plaintiff repeatedly complained about the conditions in ad seg.

Defendant Walker suggests that he did not act with deliberate indifference to any complaint by plaintiff regarding the conditions in ad seg because he knew that plaintiff could file an administrative grievance regarding ad seg conditions if he felt that his complaints were not adequately investigated. That administrative remedies were available to plaintiff does not demonstrate that defendant Walker's failure to respond to plaintiff's alleged repeated complaints regarding ad seg conditions did not constitute deliberate indifference.10

For the reasons discussed above, defendant Walker should be denied summary judgment as to plaintiff's claim alleging Eighth Amendment violations in all three of the ad seg units in which he was housed.

6. Defendant Baker

It is undisputed that defendant Baker was assigned only to B Facility, Building 2, where plaintiff was housed from November 17, 2005, through December 27, 2005. (Baker declaration at ¶ 7.) In his response to grievance no. 05-2214, defendant Walker described this housing unit as "2 Block Overflow." (Defendants' Exhibit G.) It is undisputed that defendant Baker worked as Administrative Segregation/Overflow Sergeant in B Facility, Building 2. (Baker declaration, ¶ 1.)

Defendants move for summary judgment as to defendant Baker on the grounds that she did not knowingly disregard any risk to plaintiff. In her declaration, defendant Baker describes her duties as the Administrative Segregation/Overflow Sergeant:

(Baker declaration, ¶ 3.)

The undersigned herein addresses plaintiff's Eighth Amendment claims against defendant Baker as to each of the alleged Eighth Amendment violations.

Blanket, Cell and Water Temperature

Defendants argue that defendant Baker promptly responded to plaintiff's living-conditions grievance no. 05-2214, investigated and took corrective action. In relevant part, this grievance addressed plaintiff's claims alleging that his cell was cold and his cell had no hot water, and his claim alleging that he did not have a clean blanket.

In her declaration, defendant Baker addresses her response to grievance no. 05-2214:

(Baker Declaration, ¶¶ 10-14.)

In his opposition, plaintiff does not dispute that he received a clean blanket as a result of defendant Baker's investigation. The undersigned finds that defendant Baker's response to plaintiff's grievance alleging that he required a clean blanket did not demonstrate deliberate indifference. Defendant Baker did not disregard plaintiff's concerns and responded reasonably.

The undersigned next considers plaintiff's claim alleging that defendant Baker disregarded his complaints that his cell was cold. At his deposition, plaintiff testified that even though the tests indicated that heat was blowing in through the air vent, it was still cold. (Plaintiff's deposition at 79.) Plaintiff testified that "The building was built below the earth at least about waist high. So the walls were always moist with water and — back there." (Id. at 77.) He also testified,

(Id.)

Plaintiff's testimony that the guards wore thick jackets, scarves, beanies and mittens is inconsistent with the finding that the air temperature going into plaintiff's cell was 78 degrees. This deposition testimony is sufficient to create a factual dispute regarding whether the air in plaintiff's cell was unconstitutionally cold. While the undersigned acknowledges that the temperature in plaintiff's cell may be different from the temperature outside of his cell, the difference in temperatures alleged by plaintiff and defendants is so stark that they cannot be reasonably reconciled.

Turning to the issue of defendant Baker's state of mind, it is undisputed that defendant Baker responded to plaintiff's grievance alleging that his cell was cold by sending out a maintenance worker, who then measured the temperature of air going into plaintiff's cell at 78 degrees. If the air going into plaintiff's cell was 78 degrees and if, as plaintiff alleges, the guards outside his cell were wearing heavy jackets, etc., then there was clearly something wrong with the ventilation, lending credence to plaintiff's claim. Because defendant Baker was the unit Sergeant, then it is reasonable to infer that she had knowledge of or was able to see the clothing the officers working in her unit were wearing. For these reasons, the undersigned cannot determine whether defendant Baker acted with deliberate indifference when she relied solely on the 78 degree temperature measured by the maintenance department to find that plaintiff's cell was adequately warm. Accordingly, defendant Baker should be denied summary judgment as to this claim.

Turning to plaintiff's claim that his cell lacked hot water, plaintiff does not dispute that the temperature of the water in his cell was measured at 90 degrees. At his deposition, plaintiff testified that he thought the reason that there was no hot water in his cell was because guards turned the hot water off to the cells to punish the inmates for complaining. (Id. at 80.) Apparently this action could explain why his cell water could be warm on the day it was tested by maintenance, but cold on other days. Plaintiff has no proof that any defendant was involved in turning off the hot water to his cell. (Id. at 81.)

In her declaration, defendant Baker stated that she had no knowledge of custody staff turning down the water temperature. Plaintiff has presented no evidence that defendant Baker had knowledge that custody staff turned down the water temperature. Unlike plaintiff's claim alleging that his cell was cold, plaintiff has presented no evidence suggesting that defendant Baker had reason to doubt the water temperature measured by maintenance. For these reasons, the undersigned finds that defendant Baker did not act with deliberate indifference to plaintiff's complaints that his cell lacked hot water. Accordingly, defendant Baker should be granted summary judgment as to this claim.

Leaks

The undersigned next considers plaintiff's claim that his cell toilet and sink leaked while he was housed in B facility, Building 2. In her declaration, defendant Baker states, in relevant part,

(Baker declaration, ¶ 27.)

In his opposition, plaintiff provides no evidence that defendant Baker had knowledge of any leak in his cell while he was housed in B Facility, Building 2. Accordingly, the undersigned finds no evidence of deliberate indifference by defendant Baker with respect to alleged leaks in plaintiff's cell. On this ground, defendant Baker should be granted summary judgment as to this claim.

Cleaning Supplies, Clean Clothing and Linen

The undersigned next considers plaintiff's claim that he was denied adequate cleaning supplies and clean linen and clothing while housed in B Facility, Building 2. In her declaration, defendant Baker states, in relevant part,

(Baker declaration, ¶ 29.)

Attached to plaintiff's opposition as exhibits are logs showing the days on which plaintiff received a cell inspection, exercise, showers, supplies, clothing, meals, and trash disposal. These logs show that from November 17, 2005, through December 27, 2005, plaintiff received "supplies" on November 20, 2005, November 27, 2005, December 4, 2005, and December 18, 2005. (ECF No. 173 at 88-93.) The log form states, "Cleaning and personal hygiene supplies shall be offered on a weekly basis to all inmates and provided on an as-needed basis." (Id.)

In a verified declaration filed in support of his opposition, plaintiff observes that the form does not state what supplies were provided. (Id. at 6.) Plaintiff states that he was not given adequate toilet paper. (Id.) Plaintiff states that he was frequently forced, "for weeks, to use my uncovered hand to clean myself after using the toilet, because toilet paper was not provided `as needed.'" (Id.)

In her declaration, defendant Baker states that her duties included "keeping records and preparing reports." (Baker declaration, ¶ 3.) Defendant Baker does not address whether her record keeping duties included reviewing the logs described above. However, it is not unreasonable to infer that defendant Baker's record keeping duties as well as her duties of supervising the correctional officers in the unit included review of these logs.

The logs indicate that plaintiff was given "supplies" on an almost weekly basis while housed in B Facility, Building 2. While plaintiff alleges that he was not given adequate cleaning supplies and toilet paper, he has provided no evidence that defendant Baker was made aware that he did not receive adequate supplies. Accordingly, the undersigned finds that to the extent defendant Baker reviewed the logs regarding supplies, they contained no evidence that plaintiff was not receiving adequate cleaning and personal hygiene supplies. Accordingly, defendant Baker should be granted summary judgment as to this claim.

Regarding linen exchange, the log form states, in relevant part, "Clothing will be issued upon assignment and exchanged and laundered not less than every other week. Towels, sheets and pillow cases will be laundered not less than once every (2) weeks." (ECF No. 173 at 88.) The ad seg logs show that plaintiff did not receive "linens" for the entire time he was housed in B Facility, Building 2. (Id. at 88-92.)

Prisoners have an Eighth Amendment right to be provided with clean clothing and clean linen on a regular basis. Toussaint v. Rushen, 553 F.Supp. 1365, 1379 (N.D. Cal. 1983.) The undersigned finds that plaintiff's alleged failure to receive clean bedding and linen for the 40 days he was housed in B Facility, Building 2 potentially violated the Eighth Amendment. Because the record suggests that defendant Baker reviewed the logs containing the information regarding linen exchange, defendant Baker is not entitled to summary judgment as to this claim.11

Outdoor Exercise

The undersigned next considers plaintiff's claim that he was denied adequate exercise while housed in B Facility, Building 2.

There are two requirements for an Eighth Amendment violation based on prison conditions: (1) the deprivation must be, objectively, sufficiently serious; and (2) the defendant must have acted or failed to act with deliberate indifferent to a substantial risk to the prisoner's health or safety. See Farmer, 511 U.S. at 834, 836.

"`[O]rdinarily the lack of outdoor exercise for extended periods is a sufficiently serious deprivation' for Eighth Amendment purposes." Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 2010) (quoting LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993). The Ninth Circuit has not specified exactly how much exercise time passes constitutional muster, though it has found 45 minutes per week insufficient, Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir. 1994), and agreed that two hours per week was enough, Pierce v. Cty. of Orange, 526 F.3d 1190 (9th Cir. 2008).

In her declaration, defendant Baker addresses plaintiff's claim alleging inadequate access to outdoor exercise:

(Baker declaration, ¶ 22.)

In her declaration, defendant Baker states that she was not responsible for escorting inmates to the yard, although she monitored the yard release to ensure that the officers were properly escorting the inmates. Defendant Baker states that she does not recall that plaintiff was not receiving yard time.

Attached to plaintiff's opposition are logs showing that, while he was housed in B Facility, Building 2, he received exercise on November 24, 2005, November 25, 2005, November 29, 2005, December 6, 2005, and December 8, 2005. (ECF No. 173 at 89-92). The logs show that plaintiff refused yard on November 29, 2005. (Id. at 90.) At his deposition, plaintiff testified that the entries indicating that he refused yard were false. He also alleges that he received outdoor exercise on only one occasion while housed in B Facility, Building 2.

Once again, it is not unreasonable to infer that defendant Baker's record keeping duties, as well as her duty to supervise the correctional officers working in the unit, included reviewing these logs.

Assuming that the logs are accurate, they reflect that plaintiff may have received constitutionally adequate exercise during the first part of his stay in B Facility, Building 2, but inadequate exercise during the second part of his stay. Assuming defendant Baker reviewed these logs, the undersigned cannot find that she is entitled to summary judgment as to plaintiff's claim alleging inadequate outdoor exercise.

In addition, the undersigned observes that in response to plaintiff's grievance alleging inadequate yard time in B Facility, Building 2, defendant Walker stated that "B Facility ASU had limited and restricted programs to yard . . ." (Defendants' Exhibit G.) It is unclear what defendant Walker meant by "limited and restricted" yard programs. However, it is reasonable to infer that defendant Baker, as the unit Sergeant, had knowledge of the "limited and restricted" yard program in her unit.

Spoiled Food

At his deposition, plaintiff clarified his claim regarding inadequate food. Plaintiff testified that he was served spoiled meat "[o]n a couple of occasions," that made him ill. (Plaintiff's deposition at 90.) Plaintiff also testified that the lunch meat he was given was "real bad." (Id. at 91.) Plaintiff testified that because he did not have access to the canteen, he could not supplement his diet when he received bad meat. (Id.) Plaintiff testified that he told "the sergeant" about the bad meat, referring to defendant Baker. (Id. at 91.)

Defendants argue that defendant Baker was not responsible for plaintiff's receipt of bad food. Defendants cite defendant Baker's declaration which states,

(Baker declaration, ¶ 21.)

Based on plaintiff's deposition testimony, the undersigned finds that whether defendant Baker had knowledge that plaintiff received bad or rotten meat, or did anything to address that issue, are disputed material facts. Accordingly, defendant Baker should be denied summary judgment as to this claim.

Lighting

Defendants do not address plaintiff's claim against defendant Baker that his cell did not have adequate lighting.12 Accordingly, defendant Baker is not entitled to summary judgment as to plaintiff's claim that his cell was not adequately lit.

7. Defendant Sclafani

Neither party has clarified in which of the three ad seg units where plaintiff was housed defendant Sclafani, a correctional officer, worked. In his declaration, defendant Sclafani states that he worked in the ad seg unit at CSP-Sac, but does not identify the particular unit. (Sclafani declaration, ¶ 1.) In his deposition, plaintiff testified that defendant Sclafani was "one of the regular custody officers that worked in the building that I was — or actually the block B2." (Plaintiff's deposition at 72.) Based on this testimony, the undersigned finds that defendant Sclafani worked in Facility B, Building 2, where plaintiff was housed from November 17, 2005, to December 27, 2005. This finding is supported by defendant Baker's statement in her declaration that she supervised defendant Sclafani. (Baker declaration, ¶ 9.) Accordingly, the undersigned's analysis of plaintiff's Eighth Amendment claim against defendant Sclafani is limited to the time plaintiff spent in Facility B, Building 2.13

To the extent defendant Sclafani worked in the other at-issue ad seg units in which plaintiff was housed, defendants' summary judgment motion is denied. Given defendants' failure to clearly specify the ad seg units defendant Sclafani worked in, and the voluminous record, the undersigned is not willing to evaluate claims which may or may not exist.

Defendants move for summary judgment as to defendant Sclafani on the grounds that he did not knowingly disregard any risk to plaintiff.

Cleaning Supplies, Clean Clothes and Linen

With respect to cleaning supplies, clothing and linen exchange, defendant Sclafani states in his declaration, in relevant part:

Sclafani declaration, ¶¶ 19-21.

At his deposition, plaintiff testified that he "referred his concerns" to defendant Sclafani regarding "toilet paper, soap, toothpaste, anything." (Plaintiff's deposition at 72.) Plaintiff went on to testify that defendant Sclafani "didn't do anything" after plaintiff expressed his concerns to him. (Id. at 74.)

Based on plaintiff's deposition testimony, the undersigned finds that whether defendant Sclafani provided plaintiff with adequate cleaning and hygiene supplies is materially disputed. Accordingly, defendant Sclafani should be denied summary judgment as to this claim.

Defendants argue that defendant Sclafani should be granted summary judgment as to plaintiff's claim that he did not receive adequate clean clothing and linen.14 As discussed above, plaintiff presented logs indicating that he did not receive any clean clothes or linen while he was housed in B Facility, Building 2 from November 17, 2005, to December 27, 2005. It is undisputed that correctional officers, like defendant Sclafani, were responsible for conducting the laundry exchange. (Sclafani declaration, ¶ 20.) In his declaration, defendant Sclafani states that he was not aware of any deficiency in the laundry exchange process. (Id. ¶ 20-21.)

While plaintiff did not specifically testify at his deposition that he told defendant Sclafani that he was not receiving clean clothes and clean linen, he testified that he made him aware of his concerns regarding the conditions in ad seg: "So I got at him — you know, referred my concerns to him many times: toilet paper, soap, toothpaste, anything." (Plaintiff's deposition at 72.) Plaintiff also testified that defendant Sclafani did not respond to his concerns:

(Id. at 74.)

From plaintiff's deposition testimony, it is reasonable to infer that plaintiff made defendant Sclafani aware of his complaints regarding the conditions in ad seg, including the lack of clean linen and clean clothes. Accordingly, the undersigned finds that whether defendant Sclafani had knowledge of plaintiff's failure to receive clean linen and clean clothes is a materially disputed fact. Therefore, defendant Sclafani should be denied summary judgment as to this claim.

Inadequate Lighting and Leaks

With respect to inadequate lighting, defendant Sclafani states in his declaration, "Whenever I became aware that the lighting in a cell was too dim, I relayed that information up the chain of command so that a work order could be submitted to correct the problem." (Sclafani declaration, ¶ 25.) With respect to plaintiff's claim that his cell contained leaks, defendant Sclafani states in his declaration, "On occasion, I became aware of leaks in the building. When this occurred, I provided notice up the chain of command so that the Maintenance Department could be notified and fix the problem. I was not responsible for fixing the leak myself." (Id. at 12.)

Plaintiff has provided no evidence that defendant Sclafani failed to provide notice of his complaints regarding inadequate lighting and leaks up the chain of command. Plaintiff has provided no evidence, for example, that he repeatedly complained to defendant Sclafani regarding these conditions, which would suggest that defendant Sclafani did not report his complaints. For these reasons, the undersigned finds that there is no evidence that defendant Sclafani acted with deliberate indifference with respect to these conditions. Accordingly, defendant Sclafani should be granted summary judgment as to these claims.

Cell and Water Temperature

With respect to plaintiff's claims alleging that his cell was cold and lacked hot water, defendant Sclafani states,

(Sclafani declaration, ¶¶ 8, 9, 11.)

As discussed above, whether plaintiff's cell was unconstitutionally cold is a disputed material fact. With regard to defendant Sclafani's mental state, at his deposition, plaintiff testified that he told defendant Sclafani "numerous times" that there was no heat in his cell. (Plaintiff's deposition at 76.) While plaintiff has presented no direct evidence that defendant Sclafani failed to convey his complaints "up the chain of command," as defendant Sclafani states was his practice, plaintiff's claim that he told defendant Sclafani "numerous times" that his cell was cold suggests that defendant Sclafani may not have conveyed plaintiff's concerns. For these reasons, the undersigned finds that whether defendant Sclafani responded to plaintiff's complaints regarding the temperature of his cell is a materially disputed fact. Therefore, defendant Sclafani should not be granted summary judgment as to this claim.

With respect to plaintiff's claim that his cell lacked hot water, as discussed above, plaintiff's cell water temperature was measured at 90 degrees. At his deposition, plaintiff testified that correctional staff tampered with the water temperatures to punish inmates for complaining, which would explain why his water temperature would measure 90 degrees on the day it was measured, i.e., correctional staff were not tampering with it on that day. Plaintiff has presented no evidence disputing defendants' evidence that defendant Sclafani had no control over the cell water temperature, i.e., he did not tamper with it. Based on this evidence, the undersigned finds that plaintiff has not demonstrated that defendant Sclafani violated his Eighth Amendment rights with respect to the temperature of the water in his cell.

Outdoor Exercise

With respect to plaintiff's claim alleging inadequate outdoor exercise, defendant Sclafani states in his declaration,

(Sclafani declaration, ¶ 15.)

As discussed above, the logs indicate that plaintiff may not have received adequate outdoor exercise while housed in B Facility, Building 2. The record contains no evidence regarding why plaintiff failed to receive adequate exercise. However, defendant Walker's response to plaintiff's second level grievance no. 05-2214 states that B Facility had a "limited and restricted" yard program, suggesting that plaintiff's failure to receive adequate yard time was based on a policy. (Defendants' Exhibit G.) In his declaration, defendant Sclafani states that it was not his responsibility to schedule inmates for yard sessions. He also states that he never knowingly failed to escort plaintiff to the yard when it was his responsibility to do so. Plaintiff has provided no evidence demonstrating that defendant Sclafani was responsible for his failure to receive yard time.

Because defendants have presented unopposed evidence that defendant Sclafani was not responsible for plaintiff's failure to receive yard time, the undersigned recommends that defendant Sclafani be granted summary judgment with respect to this claim.

Spoiled Food

Regarding plaintiff's claim alleging that he received spoiled food, defendant Sclafani states,

(Sclafani declaration, ¶ 14.)

At his deposition, plaintiff testified that he told defendant Sclafani about the spoiled food. (Plaintiff's deposition at 92.) In his opposition, plaintiff also states that when he received the spoiled food from defendant Sclafani, he showed the food each time to defendant Sclafani. (ECF No. 171 at 24.) Plaintiff alleges that in response, defendant Sclafani told him that there was nothing else, take it or leave it. (Id.) Based on these statements, the undersigned finds that whether defendant Sclafani had knowledge that plaintiff was receiving spoiled food is a materially disputed fact. Accordingly, defendant Sclafani should be denied summary judgment as to this claim.

8. Defendant O'Brian

Regarding his Eighth Amendment claims, plaintiff alleges that defendant O'Brian failed to respond to grievance no. 05-2214 which challenged the conditions in ad seg. Plaintiff also alleges that defendant O'Brian ignored his requests for interviews.

Defendants argue that defendant O'Brian is entitled to summary judgment as to plaintiff's Eighth Amendment claims challenging the conditions of ad seg on the grounds that she did not have authority over the conditions in ad seg. Defendants also argue that defendant O'Brian alerted supervisory staff whenever she became aware of an issue that required staff intervention. Defendants further argue that defendant O'Brian was not aware of plaintiff's repeated requests for interviews. In support of these arguments, defendants cite defendant O'Brian's declaration which states, in relevant part,

(O'Brian declaration, ¶¶ 17, 20, 26-29.)

Plaintiff has provided no evidence demonstrating that defendant O'Brian intentionally ignored a request for interview slip plaintiff submitted regarding the ad seg conditions.

The undersigned next considers defendant O'Brian's processing of grievance 05-2214. As discussed above, ratification of an unconstitutional act by superiors after the fact will only support liability when the superiors' past actions were the moving force behind the constitutional violation in the first place. Williams v. Ellington, 936 F.2d 881, 884-85 (9th Cir. 1991). This court is unwilling to adopt a rule that anyone involved in adjudicating grievances after the fact is per se potentially liable under a ratification theory. However, this is not to say that persons involved in adjudicating administrative disputes, or persons to whom complaints are sometimes made, can never be liable. If, for example, a reviewing official's rejections of administrative grievances can be construed as an automatic whitewash, which may have led other prison officials to have no concern of ever being reprimanded, a ratifying official may be liable for having put a defective policy in place.

Defendant O'Brian was not a superior officer to any of the officials responsible for conditions in ad seg. Therefore, defendant O'Brian is not liable for the conditions of ad seg unless her processing of grievance 05-2214 could be construed as a whitewash. While defendant O'Brian admits that errors occurred in the processing of this grievance, it is clear that the grievance was responded to on the merits. The undersigned does not find that defendant O'Brian's involvement with this grievance constituted a whitewash which may have led other prison officials to have no concern for the conditions in ad seg. Accordingly, defendant O'Brian should be granted summary judgment as to plaintiff's Eighth Amendment claims.

9. Qualified Immunity

Defendant Kernan

Defendants argued that defendant Kernan should be granted summary judgment because he was not informed of any condition plaintiff complained of in ad seg. However, as discussed above, whether defendant Kernan had knowledge of the ad seg conditions is a materially disputed fact. Accordingly, taking the facts in the light most favorable to plaintiff, the undersigned finds that defendant Kernan potentially violated plaintiff's Eighth Amendment rights by disregarding plaintiff's complaints regarding the ad seg conditions. The undersigned further finds that a reasonable correctional official, in defendant Kernan's position, would know that disregarding plaintiff's complaints violated the Eighth Amendment. Accordingly, defendant Kernan is not entitled to qualified immunity.

Defendant Walker

Based on the discussion above, the undersigned finds that defendant Walker potentially violated plaintiff's Eighth Amendment rights. Based on plaintiff's allegation that he complained about the ad seg conditions at the June 15, 2005, September 14, 2005, and December 14, 2005 classification committee hearings, the undersigned finds that a reasonable prison official in defendant Walker's position would have known that continuing to rely on his subordinates, and disregarding plaintiff's complaints, potentially violated plaintiff's Eighth Amendment rights. Accordingly, defendant Walker is not entitled to qualified immunity.

Defendant Baker

Defendants' summary judgment motion does not address plaintiff's claim that defendant Baker violated plaintiff's Eighth Amendment right to adequate cell lighting. Accordingly, the undersigned does not address the qualified immunity analysis with respect to this claim.

Based on the discussion above, the undersigned finds that defendant Baker potentially violated plaintiff's Eighth Amendment rights with respect to his claims alleging that his cell was cold, he did not receive clean linen and clothing, he received spoiled food and he did not receive adequate outdoor exercise. Based on the evidence discussed above, the undersigned also finds that a reasonable prison official in defendant Baker's position would have known that disregarding the alleged violations violated the Eighth Amendment. As discussed above, the logs would have put defendant Baker on notice that plaintiff was not receiving adequate clean clothing, linens and outdoor exercise. Plaintiff claims that he told defendant Baker that he received rotten food.

With regard to plaintiff's claim alleging that his cell was cold, a reasonable correctional official would have known that even if the temperature at plaintiff's cell vent read 78 degrees, something was wrong with the ventilation if the officers in the unit wore heavy jackets, etc.

For the reasons discussed above, defendant Baker is not entitled to qualified immunity.

Defendant Sclafani

Based on the discussion above, the undersigned finds that defendant Sclafani potentially violated plaintiff's Eighth Amendment rights with respect to his claims alleging inadequate cleaning supplies, inadequate clean clothing and linen, his cell was cold, and he received spoiled food. Taking the facts in the light most favorable to plaintiff, the evidence suggests that defendant Sclafani was made aware of all of these conditions but failed to take any corrective action. The undersigned finds that a reasonable correctional officer would have known that failing to respond to plaintiff's complaints violated the Eighth Amendment. Accordingly, defendant Sclafani is not entitled to qualified immunity.

IX. Religious Freedom

Plaintiff, who is Native American, alleges that he was denied his First Amendment right to freely exercise his religion. Plaintiff also raises an Equal Protection claim related to his request to practice his religion. (ECF No. 78 at 19.) These claims are made against defendants Kernan, Walker, Grannis, O'Brian, Baker and Sclafani. (Id. at 19.)

A. First Amendment Right to Religious Freedom

Plaintiff alleges that during the time he was held in ad seg at CSP-Sac, he was denied access to sweat lodges and a spiritual leader. He also alleges that he was not allowed to access his religious property.

Legal Standard

"The right to exercise religious practices and beliefs does not terminate at the prison door. The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per curiam) (citations omitted). "[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974); see also Clement v. Cal. Dep't. of Corr., 364 F.3d 1148, 1151 (9th Cir. 2004) (per curiam). A prison regulation that impinges on First Amendment rights "is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987).

Discussion—Defendants Grannis and O'Brian

Citing plaintiff's deposition, defendants state that with respect to defendants O'Brian and

Grannis, plaintiff bases his claim for denial of his ability to practice his religion on a grievance he sent to Grannis that was never returned. (Plaintiff's deposition at 98.) Defendants argue that because defendant Grannis was not responsible for processing or responding to plaintiff's grievances, plaintiff's First Amendment claims against these defendants should be dismissed.

In response to defendants' argument regarding defendants O'Brian and Grannis, plaintiff argues in his opposition, "The evidence is too numerous to adequately present in such limited space. Including that plaintiff has responded to this substance of both facts of the persons and evidence concerning `hindering' `ability' and practice of religion in the previous DUF's sections to each named defendant." (ECF No. 171 at 58.)

Plaintiff does not direct the court to the particular grievance raising his claim alleging denial of ability to practice his religion to which defendant Grannis allegedly failed to respond. It is not the court's duty to comb through the record looking for this grievance, or any other relevant grievance, on plaintiff's behalf. For the reasons set forth above, the undersigned finds that there is no evidence that either defendant Grannis or defendant O'Brian failed to process a grievance alleging plaintiff's inability to practice his religion. Accordingly, defendants Grannis and O'Brian should be granted summary judgment as to plaintiff's First Amendment claim.

Discussion—Access to Sweat Lodge

Defendants move for summary judgment as to plaintiff's claim that he was denied access to a sweat lodge on the grounds that the same safety concerns that precluded his placement into CSP-Sac's other yards also precluded him from access to the sweat lodges there. (See Walker declaration, ¶ 26.) Defendants state that this restriction was necessary to ensure plaintiff's safety. (Id.) As discussed above, the undersigned cannot determine whether valid security concerns precluded plaintiff's placement in Facility B and Facility C. For that reason, defendants are not entitled to summary judgment on these grounds.

Defendants go on to, somewhat indirectly, address the involvement of each defendant in plaintiff's inability to practice his religion. The focus of the court's inquiry regarding this issue is whether the individual defendants caused plaintiff to be denied access to the sweat lodge.

To be liable for a civil rights violation, a state actor must act or fail to act in a manner that deprives another of a constitutional right. Leer v. Murphy, 844 F.2d 628, 632 (9th Cir. 1988).

The Ninth Circuit explains:

Id. at 633 (internal citation, quotation omitted; emphasis in original).

"The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Id.

In the statement of undisputed facts, defendants concede that plaintiff addressed his ability to practice his religion with defendant Walker "at committee." (ECF No. 165-2 at 22.) Defendants argue that defendant Walker then directed the Sergeant or Correctional Counselor in attendance at the committee hearings to address such concerns. (Id.)

It is undisputed that defendant Walker caused plaintiff to be retained in ad seg. It is undisputed that plaintiff could not access the sweat lodge while he was in ad seg. Thus, the Sergeant and Correctional Counselors could take no action to address this issue. Because defendant Walker caused plaintiff to be retained in ad seg and had knowledge that plaintiff could not attend the sweat lodge, and because it is disputed whether valid security reasons justified plaintiff's retention in ad seg, defendant Walker should be denied summary judgment as to this claim.

Defendants argue that defendant Kernan had no knowledge that plaintiff was being denied his ability to practice his religion. Defendants cite the portion of plaintiff's deposition where he testified that he "really didn't address" his religion claims with defendant Kernan. (Plaintiff's deposition at 98.)

(Id.)

The undersigned has reviewed the record and can find no evidence of plaintiff otherwise informing defendant Kernan that he could not access the sweat lodge.

In his opposition to defendants' summary judgment motion, plaintiff argues that he informed defendant Kernan of his claims involving his inability to practice his religion in grievances nos. 2214 and 2084. As discussed above, defendant Kernan did not participate in either of these grievances. Accordingly, defendant Kernan should be granted summary judgment as to plaintiff's claim that he was denied access to the sweat lodge because there is no evidence that defendant Kernan had knowledge of this issue.

With respect to defendants Baker and Sclafani, it is clear that neither of these defendants had control over plaintiff's placement in ad seg, which caused him to be denied access to the sweat lodge. Defendant Baker was the ad seg sergeant, whose duties included supervising the correctional officers in Facility B, Building 2, keeping records and preparing reports, and resolving issues brought to her attention by subordinate officers. (Baker declaration, ¶ 3.) Defendant Sclafani worked as a Correctional Officer in Facility B, Building 2. Defendant Sclafani's duties included supervising the inmates in his assigned building. (Sclafani declaration, ¶ 2.) Even assuming these defendants had knowledge that plaintiff was being denied access to a sweat lodge, they did not cause plaintiff's placement in ad seg, nor did they have any control over plaintiff's removal from ad seg to a yard where he would have access to a sweat lodge. Accordingly, because defendants Baker and Sclafani did not cause plaintiff to be denied access to a sweat lodge, these defendants should be granted summary judgment as to this claim.

Discussion — Access to Spiritual Advisor

Defendants argue that no defendant denied plaintiff access to a spiritual advisor.

Defendants argue that defendant Kernan is entitled to summary judgment as to this claim because plaintiff did not ask defendant Kernan to see a spiritual advisor. Defendants state that plaintiff testified at his deposition that he did not tell defendant Kernan about his religious claims. (Plaintiff's deposition at 98.) While plaintiff gave this statement at his deposition, he earlier testified that he asked defendant Kernan for access to a chaplain at a classification committee. (Id. at 94.) It is undisputed that defendant Kernan participated only in the May 11, 2005 classification committee hearing.

Plaintiff's deposition testimony regarding whether he asked defendant Kernan for access to a spiritual advisor is conflicting. However, defendants are not entitled to summary judgment based on this conflicting testimony. Rather, a jury should decide whether plaintiff asked defendant Kernan for access to a spiritual advisor at the May 11, 2005 classification committee hearing.15 Accordingly, defendant Kernan should be denied summary judgment as to this claim.16

Defendants argue that defendant Walker is entitled to summary judgment as to this claim because defendant Walker directed the Sergeant and Correctional Counselor in attendance at the committee hearings to investigate such concerns, and trusted and relied on them to do so. (Walker declaration, ¶ 24.) Defendant Walker was not aware of any ongoing problem that was not promptly corrected once supervising staff was notified. (Id.)

At his deposition, plaintiff testified that at each committee hearing, he mentioned his religion claims to defendant Walker. (Plaintiff's deposition at 98.) Plaintiff is claiming that he told defendant Walker that he was being denied access to a spiritual advisor at the June 15, 2005, September 14, 2005, and December 14, 2005 classification committee hearings. If plaintiff complained about access to a spiritual advisor at each of these hearings, then it appears that the Sergeants and Correctional Counselors, whose job it was to investigate this claim, were not doing their job. Based on plaintiff's ongoing complaints, the undersigned does not find that defendant Walker is entitled to summary judgment as to this claim. See Cunnigham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000) (supervisor liable for acquiescence to the constitutional deprivation).

Turning to defendant Baker, at his deposition, plaintiff testified that on December 22, 2005, he filed a grievance with defendant Baker requesting access to a chaplain. (Plaintiff's deposition at 96-97.) Plaintiff testified that the grievance was never returned to him. (Id. at 97.) Defendants move for summary judgment as to defendant Baker on grounds that defendant Baker did not know of this grievance. In support of this argument, defendants cite defendant Baker's declaration:

(Baker declaration, ¶ 28.)

Plaintiff's opposition contains no evidence demonstrating that defendant Baker was aware of the grievance he allegedly filed on December 22, 2005. Plaintiff has also presented no evidence that defendant Baker was otherwise made aware of his request to see a spiritual advisor. Defendants have presented uncontroverted evidence that defendant Baker had no knowledge of plaintiff's desire to see a spiritual advisor. For this reason, defendant Baker should be granted summary judgment as to this claim.

With regard to defendant Sclafani, defendants argue that there is no evidence that defendant Sclafani denied any request by plaintiff to see a spiritual advisor. In support of this argument, defendants cite defendant Sclafani's declaration which states, in relevant part,

(Sclafani declaration, ¶ 18.)

At his deposition, plaintiff testified that he raised his religious claims with defendant Sclafani "many times." (Id. at 98-99.) Based on plaintiff's testimony that he made his religious claims to defendant Sclafani "many times," the undersigned finds that whether defendant Sclafani conveyed plaintiff's requests to the spiritual advisor is a reasonably disputed fact. Accordingly, defendant Sclafani should be denied summary judgment as to this claim.

Discussion—Access to Religious Property

Plaintiff alleges that he was not given his religious property while in ad seg. (Plaintiff's deposition at 96.) In his opposition, plaintiff describes his religious property as including a red headband, medicine bag, prayer ties, eagle feather and herbal medicine. (ECF No. 171 at 56.)

Defendants argue that there is no evidence that any defendant attempted to interfere with any attempt made by plaintiff to access his religious property.

There is no evidence that plaintiff ever asked defendant Kernan for assistance in obtaining his religious property. At his deposition, as discussed above, plaintiff did not testify that he asked defendant Kernan for access to his religious property. Plaintiff has provided no evidence that he otherwise brought this matter to the attention of defendant Kernan. Accordingly, defendant Kernan should be granted summary judgment as to this claim.

Defendants argue that defendant Walker is entitled to summary judgment as this claim because defendant Walker directed the Sergeant and Correctional Counselor in attendance at the committee hearings to investigate such concerns, and trusted and relied on them to do so. (Walker declaration, ¶ 24.) Defendant Walker was not aware of any ongoing problem that was not promptly corrected once supervising staff was notified. (Id.)

As discussed above, at his deposition plaintiff testified that at each committee hearing he mentioned his religion claims to defendant Walker. (Plaintiff's deposition at 98.) Plaintiff is claiming that he told defendant Walker that he was being denied access to his religious property at the June 15, 2005, September 14, 2005, and December 14, 2005 classification committee hearings. If plaintiff complained about access to his religious property at each of these hearings, then it is appears that the Sergeants and Correctional Counselors, whose job it was to investigate this claim, were not doing their job. Based on plaintiff's ongoing complaints, the undersigned does not find that defendant Walker is entitled to summary judgment as to this claim. See Cunnigham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000) (supervisor liable for acquiescence to the constitutional deprivation).

Turning to defendant Sclafani, in his declaration, defendant Sclafani addresses the procedures inmates follow to obtain their religious property:

(Sclafani declaration, ¶ 17.)

As discussed above, at his deposition, plaintiff testified that he raised his religious claims with defendant Sclafani "many times." (Id. at 98-99.) Based on plaintiff's claim that he raised his religious claims with defendant Sclafani "many times," the undersigned finds that whether defendant Sclafani forwarded plaintiff's requests for access to his religious property to R & R is a disputed material fact. Accordingly, defendant Sclafani should be denied summary judgment as to this claim.

Turning to defendant Baker, in her declaration, defendant Baker states that she was not generally responsible for processing inmate's requests for religious items. (Baker declaration, ¶ 28.) Defendant Baker states that when she received such a request, she always relayed it to the appropriate recipient. (Id.) Defendant Baker states that she does not recall ever being aware that plaintiff was having difficulty accessing his permitted religious items. (Id.)

In his opposition, plaintiff provides no evidence that he ever gave defendant Baker a request for access to his religious property or that defendant Baker failed to forward the property request to R & R. Because defendants have presented uncontroverted evidence that defendant Baker had no knowledge that plaintiff was having difficulty accessing his religious property, defendant Baker should be granted summary judgment as to this claim.

Qualified Immunity

Because the undersigned recommends that defendants Grannis, O'Brian and Baker be granted summary judgment on the merits of plaintiff's First Amendment claim, there is no need to address qualified immunity as to these defendants.

As discussed above, the undersigned recommends that defendant Walker be denied summary judgment as to all three of plaintiff's First Amendment claims based on plaintiff's claim that he repeatedly brought these issues to defendant Walker's attention at the classification committee hearings. With respect to the first prong of the qualified immunity analysis, the undersigned finds that defendant Walker potentially violated plaintiff's First Amendment rights with respect to all three of these issues: access to a sweat lodge, access to a spiritual advisor and access to religious property. With respect to the second prong of the qualified immunity analysis, the undersigned finds that a reasonable prison official would have known that plaintiff's repeated complaints indicated that his First Amendment rights were being violated, and that the people defendant relied on to investigate these complaints were not doing their job. See Cunnigham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000) (supervisor liable for acquiescence to the constitutional deprivation). Accordingly, defendant Walker is not entitled to qualified immunity.

The undersigned recommends that defendant Kernan be denied summary judgment as to plaintiff's claim that he was being denied access to a spiritual advisor based on plaintiff's claim that he brought this issue to defendant Kernan's attention at the classification committee. The record suggests that defendant Kernan ignored this request, as plaintiff allegedly did not meet with a spiritual advisor for the entire time he was housed in ad seg. With respect to the first prong of the qualified immunity analysis, the undersigned finds defendant Kernan potentially violated plaintiff's First Amendment rights by disregarding his request for access to a spiritual advisor. It is difficult to analyze the second prong of the qualified immunity analysis because it is unclear why defendant Kernan allegedly ignored this request. Nonetheless, the undersigned finds that a reasonable prison official, including a Warden, would have known that ignoring a request for access to a spiritual advisor violated the First Amendment. Accordingly, defendant Kernan is not entitled to qualified immunity.

The undersigned recommends that defendant Sclafani be denied summary judgment as to plaintiff's First Amendment claims that he was denied access to a spiritual advisor and to his religious property. Plaintiff alleges that he made his First Amendment requests to defendant Sclafani "many times." With respect to the first prong of the qualified immunity analysis, the undersigned finds that defendant Sclafani potentially violated plaintiff's First Amendment rights by allegedly disregarding his requests for access to a spiritual advisor and access to his legal property. With respect to the second prong of the qualified immunity analysis, the undersigned finds that a reasonable correctional officer would have known that ignoring these requests violated plaintiff's First Amendment rights. Accordingly, defendant Sclafani is not entitled to qualified immunity with respect to these claims.

B. Equal Protection

Legal Standard

"The Equal Protection Clause requires the State to treat all similarly situated people equally. Moreover, the Equal Protection Clause entitles each prisoner to a reasonable opportunity of pursing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts." Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008) (citations and internal quotation marks omitted).

Discussion

Defendants argue that they are entitled to summary judgment as to this claim because they did not treat plaintiff differently from any other inmates because of his Native American beliefs. Defendants cite the declarations of defendants Baker, Walker and Sclafani in support of this claim. (ECF No. 165-2 at 22 (statement of undisputed facts, no. 138).) Defendants also claim that plaintiff alleges in the amended complaint at page 81 that "a number of other prisoners" felt that they were denied their right to practice their religious ceremonies. The undersigned cannot locate this allegation in the amended complaint.

At his deposition, plaintiff testified that in the December 22, 2005 grievance he made the following claim:

(Plaintiff's deposition at 97.)

Plaintiff's deposition testimony set forth above is the only evidence the undersigned can locate supporting his Equal Protection claim.

To succeed on the instant claim, plaintiff must demonstrate that the alleged discrimination was intentional. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). That means that plaintiff must demonstrate that defendants knew that plaintiff was being denied access to a spiritual advisor while spiritual advisors of other faiths were permitted in the ad seg unit. Plaintiff has provided no evidence demonstrating that any defendant had knowledge of this disparity, either from personal observation or from information received from plaintiff. As discussed above, there is no evidence that defendant Baker reviewed plaintiff's December 22, 2005 grievance. For these reasons, plaintiff has not demonstrated that defendants intentionally discriminated against him. Accordingly, defendants should be granted summary judgment as to this claim.

X. Access to the Courts

Plaintiff alleges that he was denied his right to access the courts. This claim proceeds against defendants Baker, Sclafani, Morrow, O'Brian and Grannis. (ECF No. 78 at 20.) The undersigned summarized plaintiff's access to the courts claims in the August 24, 2011 findings and recommendations addressing defendants' motion to dismiss as follows:

(ECF No. 78 at 21-22.)

Plaintiff's State Appeal

After reviewing the record, the undersigned finds that the following facts are undisputed regarding plaintiff's state appeal.

In the California Court of Appeal, plaintiff was represented by counsel in his appeal of his criminal conviction. (ECF No. 181 at 6.) On August 13, 2004, plaintiff's counsel filed a Wende brief, indicating that there were no arguable issues for review. (Id.) On December 17, 2004, plaintiff filed his own supplemental briefing in support of the appeal. (Id. at 7.) The docket from the California Court of Appeal indicates that on December 17, 2004, the case was fully briefed. (Id.) On September 14, 2005, the California Court of Appeal issued an opinion affirming plaintiff's conviction. (Id.)

Plaintiff signed his petition for review addressed to the California Supreme Court on October 16, 2005. (ECF No. 165-4 at 13.) On November 30, 2005, the California Supreme Court denied the petition for review without comment or citation. (Id. at 11.)

Plaintiff's Federal Petition

The undersigned has taken a closer look at plaintiff's federal petition, and summarizes that review herein.

On March 10, 2007, plaintiff filed the original petition in the United States District Court for the Central District of California.17 (See United States District Court docket, 2:07-1593 at ECF No. 78 at 3 (findings and recommendations recommending that the petition be denied.) On September 13, 2007, respondent filed a motion to dismiss, arguing that the claims were unexhausted and that plaintiff had a pending habeas petition before the California Supreme Court. (Id.) That state habeas petition was denied on October 10, 2007. (Id.)

On October 17, 2007, plaintiff filed an amended petition, raising 15 grounds for relief, many of which appeared to be based on the recently denied state habeas petition. (Id.) Accordingly, on November 6, 2007, the magistrate judge court denied the motion to dismiss as moot. (Id.) The magistrate judge ordered respondent to file a response to the amended petition. (Id.)

On December 13, 2007, respondent filed a motion to dismiss the amended petition on the grounds that it contained unexhausted claims. (See id. at ECF No. 54.) On February 7, 2008, the magistrate judge denied the motion to dismiss, finding that plaintiff's claims were exhausted. (Id.)

On December 10, 2009, the magistrate judge issued an 18 page opinion recommending that plaintiff's habeas petition be denied on the merits. (Id. at ECF No. 78.) On April 7, 2001, the district court adopted these findings and recommendations. (Id. at ECF No. 80.)

Analysis

Plaintiff's pleadings regarding the instant claim are somewhat confusing. However, after reviewing the opposition, the undersigned finds that plaintiff has clarified his access to the courts claim to allege as follows.

Plaintiff alleges that due to inadequate law library access, etc., he was unable to present in his petition for review and federal habeas petition a claim challenging his three strikes sentence. (ECF No. 171 at 32-22.) It appears that plaintiff is arguing that his two prior convictions used as strikes were improperly counted as two strikes because they arose from a single criminal act. Plaintiff alleges that his strikes came from his 1995 convictions in case no. KA026295. (Id. at 31.) A copy of the minute order from that case is attached to the opposition. (ECF No. 173-2 at 25-26.) The minute order reflects that on March 10, 1995, plaintiff was convicted of making a terrorist threat (Cal. Penal Code 422) and oral copulation against a victim (Cal. Penal Code § 288A(c). (Id. at 26.)

In his opposition, plaintiff cites People v. Burgos, 117 Cal.App.4th 1209 (2004), in support of his argument that his convictions for oral copulation and making a terrorist threat in case no. KA026295 should not have been considered as separate strikes. A trial court may, but is not required to, exercise its discretion to strike a prior strike conviction where the prior strikes arise from a single incident with a single victim or a single act. People v. Burgos (2004) 117 Cal.App.4th 1209, 1212, fn.3, 1216. (2004).

The undersigned observes that plaintiff raised his claim challenging his 3 strikes sentence in his federal petition. (See Defendants' Request for Judicial Notice, Exhibit M, p. M18.) Thus, plaintiff's access to the courts claim is without merit to the extent it is based on his inability to raise this claim, as a violation of federal law, in federal court. Plaintiff's access to the courts claim is, therefore, limited to his alleged inability to raise this claim, as a violation of state law, in his petition for review filed in the California Supreme Court.

Defendants move for summary judgment as to plaintiff's access to the courts claim on several grounds. Defendants argue that plaintiff's access to the courts claim fails because he has not demonstrated that he sought to raise a non-frivolous issue. Defendants also argue that plaintiff has failed to link any defendant to his claim. Defendants also argue that plaintiff's claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994).

For the reasons discussed herein, the undersigned finds that plaintiff's access to the courts claim is Heck barred. For that reason, the undersigned does not address defendants' other arguments for summary judgment as to this claim.18

In Heck v. Humphrey, 512 U.S. 477, 481 (1994), the Supreme Court held "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983." Thus, a plaintiff cannot maintain a § 1983 action to recover damages for "harm caused by actions whose unlawfulness would render [his] conviction or sentence invalid" when his sentence and conviction have not previously been reversed, expunged, declared invalid, or called into question upon issuance of a writ of habeas corpus by a federal court. Id. at 486-87.

As noted by defendants, the Seventh Circuit and several Ninth Circuit district courts have held that until an inmate's conviction or sentence has been overturned, he cannot bring claims for damages for denial of access to legal materials or legal assistance to aid him in challenging some aspect of his conviction or sentence. The undersigned quotes herein from Koch v. Jester, 2014 WL 3783961 at *5 (D. Or. 2014), which addressed this issue:

Koch v. Jester, 2014 WL 3783961 at * 5.

In the instant case, plaintiff seeks money damages on grounds that defendants thwarted his ability to raise a colorable claim challenging his 3 strikes sentence in his petition for review filed in the California Supreme Court by denying him adequate law library access, etc.

The undersigned agrees with the reasoning of the Seventh Circuit and the district courts, discussed above, that claims by prisoners for damages based on alleged denial of access to the law library, legal materials, etc., to aid them in challenging their some aspect of their conviction or sentence are Heck barred unless the conviction or sentence has been overturned. Plaintiff's conviction and sentence have not been overturned. Accordingly, plaintiff's claims alleging denial of access to the courts based on his claim that he was prevented from effectively litigating his state appeal based on inadequate law library access, etc., is Heck barred.

XI. Retaliation

This action proceeds on the following retaliation claims, based on the allegations that the following defendants retaliated against plaintiff for filing administrative grievances: 1) defendants O'Brian and Grannis by further refusing to process administrative grievances; 2) defendant Morrow for further refusing plaintiff access to his legal property and to the law library, after plaintiff complained; 3) defendants Sclafani and Baker by failing to remedy adverse conditions of confinement in the ad seg and for denying plaintiff access to a religious advisor. (ECF No. 78 at 22.)

Legal Standard

A viable claim of First Amendment retaliation entails five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). Direct and tangible harm will support a First Amendment retaliation claim even without a demonstration of chilling effect on the further exercise of a prisoner's First Amendment rights. Id. at 568, n.11. "[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm" as a retaliatory adverse action. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009), citing Rhodes, 408 F.3d at 568, n.11. A plaintiff must plead facts which suggest that retaliation for exercise of protected conduct was the "substantial" or "motivating" factor behind the defendants' conduct. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989.) Mere conclusions of hypothetical retaliation will not suffice; rather, a prisoner must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562, n.1 (10th Cir. 1990).

Defendants Grannis and O'Brian

As discussed above, plaintiff alleges that defendants Grannis and O'Brian retaliated against him for filing administrative grievances by refusing to process other administrative grievances he filed.

Defendants move for summary judgment as to defendant Grannis on grounds that she did not engage in any adverse action against plaintiff. Citing defendant Grannis' declaration quoted above, defendants argue that defendant Grannis was not employed at CSP-Sac, did not supervise the staff there, did not screen out plaintiff's grievances, and was not assigned to process or respond to his grievances. Defendants argue that defendant Grannis was not aware of any error in the processing of plaintiff's grievances.

The undersigned has reviewed the relevant exhibits attached to plaintiff's opposition and finds that plaintiff has not demonstrated that defendant Grannis took an adverse action against him. First, plaintiff has attached several correspondences from defendant Grannis which he received well after he transferred away from CSP-Sac. (See ECF No. 172 at 14, 15, 16, 17.) Plaintiff cannot base his retaliation claim against defendant Grannis based on these correspondences.

Plaintiff has also attached a letter dated March 9, 2006, returning a Director's Level appeal because it was not completed through the second level of review. (ECF No. 172-2 at 9.) While this letter has defendant Grannis's typed signature, it appears that someone else signed this letter on behalf of defendant Grannis. (Id.)

Plaintiff alleges that defendant Grannis refused to process his grievances, which would not necessarily be reflected in documentary evidence. However, in her declaration, defendant Grannis stated that she did not review letters received by her office from inmates. (Grannis, declaration, ¶ 11.) Defendant Grannis also stated that she was not involved in screening grievances. (Id. at ¶ 4-8.) Based on these statements, the undersigned finds that plaintiff's claim that defendant Grannis refused to process his grievances is unsupported by any admissible evidence. Accordingly, defendant Grannis should be granted summary judgment as to plaintiff's retaliation claim because there is no evidence that she took any adverse action against plaintiff.

With respect to O'Brian, defendants argue that defendant O'Brian did not harbor any retaliatory animus toward plaintiff. Defendants argue that defendant O'Brian never intentionally delayed, screened out, or improperly process plaintiff's grievances. In her declaration, defendant O'Brian discusses her processing of plaintiff's grievances. As discussed above, in her declaration defendant O'Brian described the processing of grievance nos. 05-2084 and 05-2214. (O'Brian declaration, ¶¶ 23-29.) While O'Brian admits that the processing of appeal no. 05-2214 was delayed because the OT stamped the wrong date on the appeal and it was later misfiled, there is no evidence that these actions were taken against plaintiff in retaliation for filing grievances.

In her declaration, defendant O'Brian addresses other grievances filed by plaintiff:

(O'Brian declaration, ¶¶ 30-37.)

The undersigned finds that defendant O'Brian's declaration, quoted above, demonstrates that defendant O'Brian did not fail to process plaintiff's administrative grievances for improper reasons. In other words, defendants have demonstrated that defendant O'Brian did not retaliate against plaintiff.

The undersigned has reviewed plaintiff's opposition and finds that plaintiff has not demonstrated that defendant O'Brian retaliated against him for filing administrative grievances. Accordingly, the undersigned recommends that defendant O'Brian be granted summary judgment as to plaintiff's retaliation claim.

Defendant Morrow

As clarified in the order screening, plaintiff alleges that defendant Morrow retaliated against him by denying him access to his legal property and the law library after plaintiff complained to the May 11, 2005 classification committee that defendant Morrow told plaintiff that no legal property would be provided to him while he was housed at CSP-Sac. (ECF No. 21 at 9; see also ECF No. 24 at 27 (amended complaint).)

Defendants move for summary judgment on the grounds that defendant Morrow harbored no retaliatory animus toward plaintiff. In his declaration defendant Morrow states, in relevant part,

(Morrow declaration, ¶¶ 1-4.)

Plaintiff was housed in B Facility at the time he allegedly complained about defendant Morrow to the May 11, 2005 classification committee. However, at that time, defendant Morrow was employed in A Facility. According to defendant Morrow, his duties did not extend to B Facility.

Plaintiff's retaliation claim against defendant Morrow is not supported by the record. Plaintiff does not address how defendant Morrow, who was employed in A Facility, denied him access to his legal property while he was housed in B Facility. Plaintiff also does not address how defendant Morrow denied him access to the law library while he was housed in B Facility. Because defendants have presented uncontroverted evidence that defendant Morrow could not have retaliated against plaintiff, as plaintiff alleges, defendant Morrow should be granted summary judgment as to plaintiff's retaliation claim.

Sclafani and Baker

As discussed above, plaintiff alleges that defendants Sclafani and Baker denied plaintiff's access to a religious advisor and ignored his complaints regarding unconstitutional conditions in retaliation for plaintiff filing administrative grievances. Defendants argue that there is no evidence that these defendants harbored any retaliatory animus toward plaintiff. In their declarations, both defendanst Sclafani and Baker states that they took no adverse action against plaintiff and did not treat him differently because he submitted administrative appeals. (Sclafani declaration, ¶ 27; Baker declaration, ¶ 33.)

In opposing defendants' summary judgment motion it is plaintiff's burden to raise a genuine dispute of material fact as to whether his protected conduct, i.e., filing grievances, was a substantial or motivating factor behind the defendants' conduct. Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009).

As discussed above, the undersigned above recommends that defendants Baker and Sclafani be denied summary judgment as to some of plaintiff's Eighth and First Amendment claims. With respect to his retaliation claims, plaintiff has not demonstrated that either defendant was motivated to commit the alleged Eighth and First Amendment violations in order to retaliate against plaintiff for filing grievances. In fact, at his deposition, plaintiff testified that defendant Baker did not retaliate against him. (Plaintiff's deposition at 104.) Plaintiff testified that his retaliation claim was against defendants O'Brian, Grannis and Morrow.19 (Id.) Plaintiff did not identify defendant Sclafani as a defendant against whom he was alleging retaliation.

Accordingly, defendants Sclafani and Baker should be granted summary judgment as to plaintiff's retaliation claims.

XII. Remaining Matters

Plaintiff's Additional Request for Relief in Opposition

In his opposition, plaintiff argues that the court should strike the portion of defendants' summary judgment motion pertaining to defendants Baxter and Kernan because these defendants did not personally submit declarations in support of the dispositive motion. The undersigned is aware of no authority requiring a moving party to submit a personal declaration in support of a motion for summary judgment. Accordingly, plaintiff's request to strike the motion for summary judgment brought on behalf of defendants Baxter and Kernan on these grounds is denied.

In the opposition, plaintiff also requests that the court deem the responses to requests for admissions by defendants Grannis and O'Brian admitted because they are not verified by defendants. In the reply to plaintiff's opposition, defendants argue that plaintiff's request that the responses be deemed admitted is untimely because discovery is closed. The undersigned agrees that plaintiff's request regarding the request for admissions is untimely. In any event, as noted by defense counsel, Federal Rule of Civil Procedure 36(a)(3) provides that requests for admission may be signed by the party or the attorney for the party. Defense counsel signed the requests for admission on defendants' behalf.

In the reply, defendants also note that plaintiff alleges that defendant Kernan's responses to request for production of documents is unverified. To the extent plaintiff is requesting that the court address a discovery matter, this request is untimely. In addition, as noted by defendants, verification of responses to requests for production of documents is not required. See Bashkin v. San Diego County, 2011 WL 1486313 at *7 (S.D. Cal. 2011).

Objections

The claims in this action have been extensively briefed by both parties. Plaintiff's amended complaint, including exhibits, is 488 pages. Defendants' summary judgment motion, including exhibits, is 307 pages. Plaintiff's opposition, including exhibits, is 1474 pages. Because of the extensive briefing, objections to these findings and recommendations may be no longer than 20 pages (the page limit includes exhibits, if any).

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Defendants' summary judgment motion (ECF No. 165) be denied as to the following claims: 1) due process claims against defendant Walker; 2) all Eighth Amendment conditions of confinement claims against defendants Kernan and Walker; 3) the Eighth Amendment conditions of confinement claims against defendant Baker alleging that plaintiff's cell was cold, he was denied clean linen and clothing, he was denied adequate outdoor exercise, his cell had inadequate lighting and he was served spoiled food; 4) the Eighth Amendment conditions of confinement claims against defendant Sclafani alleging that plaintiff received inadequate cleaning supplies, he was denied clean linen and clothing, his cell was cold and he was served spoiled food; 5) the First Amendment claims against defendant Walker alleging denial of access to a sweat lodge, spiritual advisor and religious property; 6) the First Amendment claims against defendant Kernan alleging denial of access to a spiritual advisor; and 7) the First Amendment claims against defendant Sclafani alleging denial of access to a spiritual advisor and religious property;

2. Defendants' summary judgment motion (ECF No. 165) be granted in all other respects.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).