RUTH BERMUDEZ MONTENEGRO, Magistrate Judge.
Plaintiff Tony Roberts, an inmate currently incarcerated at California Health Care Facility, has filed a 42 U.S.C. § 1983 lawsuit against staff at the RJ Donovan Correctional Facility for violations of his First Amendment right to file grievances and for various violations of state law. (Doc. 1, at 3-4.) Plaintiff alleges that Defendants R. Davis, A. Buenrostro, C. Meza, A. Parker, R. Solis, R. Santiago, and K. Seibel — all prison staff — retaliated against him for engaging in First Amendment conduct.
Plaintiff alleges that "Defendants conspired to retaliate against [him] for engaging in `protected conduct' when [he] petitioned for redress of his grievances" between April and October 2014. (Doc. 1, at 19.) Plaintiff alleges that Defendants Davis and Buenrostro "engaged in a series of unlawful and repressive conduct against Plaintiff and other mentally ill inmates" when Plaintiff "attempted to access [RJ Donovan's] inmate appeal procedure to complain about these Defendants' conduct" which "were either screened out or were never responded to by [RJ Donovan's] prison officials." (Doc. 1, at 10.) Plaintiff states that after he wrote the "class monitors" of the California Department of Corrections and Rehabilitation's mental health delivery system, appointed under
Plaintiff claims that Defendants C. Meza and A. Buenrostro prohibited Plaintiff's ability to send written communications of public interest to government officials. (Doc. 1, at 19.) Plaintiff states that Defendant C. Meza "illegal[ly] obtained a copy of a written complaint Plaintiff had drafted and submitted" to the Department of Justice and gave the complaint to Defendant Buenrostro, who then concocted false allegations against Plaintiff in retaliation and arranged with other officers Plaintiff's transfer to another prison that caused Plaintiff "to experience an exacerbation in his mental illness." (Doc. 1, at 12.) Plaintiff claims that Defendants A. Parker and A. Buenrostro conducted a cell search on June 3, 2014 and confiscated legal documents from Plaintiff including a civil rights complaint that was about to be filed against Defendants Buenrostro and Meza for the April 2, 2014 incident, in which Plaintiff was found guilty of "Openly Displaying Disrespect" to Defendant Buenrostro. (Doc. 1, at 20.) Plaintiff alleges that Defendants Buenrostro and Parker "concocted false disciplinary charges" against him, accusing him of working with another prisoner to falsely accuse Defendant Buenrostro. (Doc. 1, at 20-21.)
Plaintiff claims that Defendants Davis, Meza, and Buenrostro falsely labeled Plaintiff a "snitch," causing him to be attacked by other inmates, in retaliation for exercising his First Amendment rights. (Doc. 1, at 21-24.) Plaintiff alleges that Defendant Buenrostro told other prisoners that he was a child molester on September 29, 2014, in a "calculated effort to place Plaintiff's safety in danger from other inmates." (Doc. 1, at 23.) Plaintiff claims that Defendant K. Seibel, the deputy chief warden, conspired to retaliate against Plaintiff for filing grievances by authorizing the illegal activities of the other correctional officers under her and by placing him on a list for transfer to another CDCR facility in Stockton in September and October 2014. (Doc. 1, at 14-15, 23.)
Finally, Plaintiff alleges that Defendant Buenrostro conducted a clothed body search of Plaintiff on April 2, 2014 and intentionally rubbed Plaintiff's private parts for sexual gratification in retaliation for exercising his First Amendment rights. (Doc. 1, at 11-12.) Plaintiff alleges that Buenrostro then wrote up a false and retaliatory rules violation report against him for exercising his constitutional rights. (Doc. 1, at 11.) Plaintiff alleges that Defendant Buenrostro later spoke to him in October 2014 and promised to "get some payback on your ass" and attempted to set Plaintiff up to be injured by other inmates. (Doc. 1, at 24.)
Defendants A. Buenrostro and C. Meza both declared that they did not take any adverse action against Plaintiff because Plaintiff corresponded with the "class monitors" of CDCR's mental health delivery system, appointed under
Defendant Buenrostro was monitoring the inmates in Housing Unit A-1 on April 2, 2014. (Buenrostro Decl. ¶ 3.) Defendant Buenrostro ordered Plaintiff to leave the housing unit and go to the dining hall for breakfast or return to his cell, but he stated that Plaintiff ignored his orders. (Buenrostro Decl. ¶ 3.) Defendant Buenrostro approached Plaintiff and again ordered Plaintiff to leave the housing unit or return to his cell and Plaintiff responded, "Don't worry about what I'm doing, stupid Mexican." (Buenrostro Decl. ¶ 3.) Defendant Buenrostro stated that he searched Plaintiff because Plaintiff's actions were suspicious and unusual. (Buenrostro Decl. ¶ 4.) Defendant Buenrostro told Plaintiff that he was expected to follow orders and procedures within the housing unit. (Buenrostro Decl. ¶ 4.) Plaintiff was agitated and angry and responded, "Fuck you stupid Mexican. I'm going to do what I want to do." (Buenrostro Decl. ¶ 4.) At that point, Defendant Buenrostro placed Plaintiff in handcuffs because of Plaintiff's unusual behavior and agitated state, and as a safety precaution, Plaintiff was escorted to the Program Support Unit. (Buenrostro Decl. ¶ 4.) Defendant Buenrostro declared that he did not use excessive or improper force on Plaintiff at any time during the incident and clothed body search on April 2, 2014. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro slated that he did not sexually assault Plaintiff during that search and did not rub Plaintiff's private parts for sexual gratification. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro searched Plaintiff because his actions were suspicious, and Defendant Buenrostro knew that Plaintiff was not assigned to cell 210. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro also knew, based on his training, education, and personal experience within CDCR, that inmates often try to go to other cells for improper purposes such as delivering or obtaining contraband including drugs, weapons, currency, or electronic equipment or other property that is not theirs. (Buenrostro Decl. ¶ 5.) This, and Plaintiff's agitated state, were the only reasons why Defendant Buenrostro performed a clothed body search of Plaintiff. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro wrote a 115 Rules Violation Report charging Plaintiff with behavior that leads to violence in violation of California Code of Regulations, Title 15, section 3005(d). (Buenrostro Decl. ¶ 6 and Exhibit A.) Defendant Buenrostro stated that he did not write this report in retaliation. (Buenrostro Decl. ¶ 6 and Exhibit A.) This Rules Violation Report was heard by a senior hearing officer, Correctional Lieutenant R. Davis, on May 1, 2014. (Buenrostro Decl. ¶ 6 and Exhibit A thereto.) Lt. Davis found Plaintiff not guilty of behavior that leads to violence, but instead found him guilty of the lesser included offense of openly displaying disrespect in violation of California Code of Regulations, Title 15, section 3004 (b). Lt. Davis's finding was based upon a preponderance of the evidence submitted at the hearing. (Buenrostro Decl. ¶ 6 and Exhibit A.) This evidence included Defendant Buenrostro's written report which stated in part that Plaintiff said "don't worry about what I'm doing stupid Mexican," and the testimony of Correctional Counselor Hailey, who told Lt. Davis that he heard Plaintiff call Defendant Buenrostro "a Mexican." (Buenrostro Decl. ¶ 6 and Exhibit A.) Plaintiff was assessed thirty days forfeiture of good-time credits, thirty days loss of evening yard privileges, and thirty days loss of dayroom privileges. (Buenrostro Decl. ¶ 6 and Exhibit A.) This 115 Rules Violation Report's guilty finding has not been overturned by the CDCR. (Buenrostro Decl. ¶ 6 and Exhibit A.) Defendant Davis, who made the guilty finding, has declared that he never participated in an "ongoing conspiracy to purposefully punish [Plaintiff] for exercising his right to file inmate grievances." (Davis Decl. ¶ 2.)
Defendant Buenrostro never contacted Sergeant Sanchez to plot Plaintiff's transfer to another prison, knowing that doing so would exacerbate Plaintiff's mental illness. (Buenrostro Decl. ¶ 8.) Defendant Buenrostro did not have authority to have an inmate transferred, and he had no influence over the decision to transfer an inmate. (Buenrostro Decl. ¶ 8.) Defendant Buenrostro has never sat on any of Plaintiff's classification committees, and he has never acted as a Classification Staff Representative reviewing any action concerning Plaintiff. (Buenrostro Decl. ¶ 10.)
Defendants Buenrostro and Parker did not "concoct" false disciplinary charges against Plaintiff. (Buenrostro Decl. ¶ 12; Parker Decl. ¶ 6.) Defendants Buenrostro and Parker were working as the Floor Officers in Housing Unit A-1 at RJ Donovan on June 3, 2014. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) Defendants Buenrostro and Parker randomly chose to search Plaintiff's cell that day. (Buenrostro ¶¶ 13, 15; Parker Decl. ¶ 2, 4.) Defendant Parker discovered a small, clear plastic bag lying on the lower-bunk mattress underneath a blue, state-issued jacket. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) The bag was filled with tobacco. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) The lower bunk was assigned to Plaintiff at that time. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) Defendant Parker took possession of the tobacco and disposed of it per institutional procedures. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) Defendant Parker did not "plant" the bag of tobacco on Plaintiff's bunk. (Parker Decl. ¶ 4.) Defendant Parker wrote a 115 Rules Violation Report charging Plaintiff with possession of contraband (tobacco) in violation of California Code of Regulations, Title 15, section 3006. (Buenrostro Decl. ¶ 14; Parker Decl. ¶ 3 and Exhibit A.) This Rules Violation Report was heard by a senior hearing officer, Correctional Lieutenant R. Davis, on July 2, 2014. (Buenrostro Decl. ¶ 14; Parker Decl. ¶ 3 and Exhibit A.) Lt. Davis ultimately found Plaintiff not guilty of this charge and dismissed the rules violation report because of insufficient evidence. (Buenrostro Decl. ¶ 14; Parker Decl. ¶ 3 and Exhibit A.) Defendants Buenrostro and Parker did not search Plaintiff's cell in retaliation for any protected conduct that Plaintiff may have engaged in or for any other improper reason. (Buenrostro Decl. ¶ 15; Parker Decl. ¶ 4.) Defendants Buenrostro and Parker searched Plaintiff's cell because they were required to perform three to five random cell searches during their shifts as floor officers. (Buenrostro Decl. ¶ 15; Parker Decl. ¶ 4.) Defendant Parker did not conspire with Buenrostro, or any other correctional staff member or inmate, to file false disciplinary charges against Plaintiff, and no one ever asked or suggested that Parker do so. (Parker Decl. ¶ 6.)
Defendants Buenrostro, Meza, and Santiago neither manufactured any charges against Plaintiff at any time, nor have they asked or pressured others to do so. (Buenrostro Decl. ¶ 20; Meza Decl. ¶ 6; Santiago Decl. ¶ 2.) Defendant Buenrostro has never taken any adverse action against Plaintiff that was not based upon a legitimate, penological reason. (Buenrostro Decl. ¶ 20.) Defendant Buenrostro never told Plaintiff that he would "get some payback" and never attempted to set up Plaintiff to be injured by other inmates. (Buenrostro Decl. ¶ 22.) Defendant Buenrostro is not aware of any report or instance where Plaintiff was attacked by other inmates from April through October 2014, and he is not aware of any reports evidencing such an attack. (Buenrostro Decl. ¶ 22.) Defendant Buenrostro has never threatened Plaintiff or bribed or caused another inmate to assault, attack, or hurt Plaintiff (Buenrostro Decl. ¶ 22-24.)
Defendant Seibel reviewed Plaintiff's transfer data on CDCR's Strategic Offender Management System (SOMS). (Seibel Decl. ¶ 5.) SOMS contains data on each CDCR inmate's case factors. (Seibel Decl. ¶ 5.) The information in SOMS shows that Plaintiff was not placed on a transfer list in September and October 2014 to be sent out of RJ Donovan. (Seibel Decl. ¶ 6.) Defendant Seibel does not have unilateral authority to place an inmate on a transfer list. (Seibel Decl. ¶ 6.) Plaintiff's records showed that RJ Donovan reviewed his case on February 18, 2014. (Seibel Decl. ¶ 8.) Plaintiff's case was referred to the Classification Staff Representative (CSR) with a recommendation that Plaintiff be retained at RJ Donovan. (Seibel Decl. ¶ 8 and Exhibit A.) The CSR endorsed the Unit Classification Committee's (UCC's) recommendation on March 26, 2014, and Plaintiff remained at RJ Donovan. (Seibel Decl. ¶ 8 and Exhibit B thereto.) This ruling was upheld at Plaintiff's next UCC hearing on September 12, 2014. (Seibel Decl. ¶ 9 and Exhibit C.) Defendant Seibel never had any knowledge that others were planning to retaliate, or were retaliating, against Plaintiff at any time. (Seibel Decl. ¶ 10.) Defendants Seibel and R. Solis never took any adverse action against Plaintiff for any protected conducted that he may have engaged in, including placing Plaintiff's name on a list for transfer out of RJ Donovan. (Seibel Decl. ¶ 3; Solis Decl. ¶ 3.)
Defendants Seibel, Santiago, Solis, Meza, Davis, Buenrostro, and Parker never called Plaintiff a snitch or child molester at any time. (Seibel Decl. ¶ 11; Santiago Decl. ¶ 5; Solis Decl. ¶ 5; Meza Decl. ¶ 5; Davis Decl. ¶ 3; Buenrostro Decl. ¶ 21; and Parker Decl. ¶ 7.) In addition to creating a threat of harm to the inmate and a security risk to the institution, any of the Defendants would have faced severe disciplinary action from their supervisors and the prison administration had they called any inmate a "snitch" or a "child molester." (Buenrostro Decl. ¶ 21.)
On April 2, 2014, Plaintiff placed a CDCR Inmate Appeal 602 dated April 2, 2014 in Housing Unit #1 Appeals box, alleging sexual assault by Correctional Officer A. Buenrostro. (Roberts Decl. ¶ 3, Doe. 119, at 26.) Plaintiff declared that he never received a response from any prison official regarding the appeal. (
On June 23, 2014, Plaintiff filed a 602 Appeal dated June 19, 2014 concerning senior CDCR administrators' intentional failure to control Officers D. Arguilez, A. Buenrostro, and R. Davis. (Roberts Decl. ¶ 4, Doc. 119, at 27.) Plaintiff declared that he never received a response addressing the appeal. (
On July 8, 2014, Plaintiff gave Officer L. Ciborowski an appeal dated June 28, 2014, alleging an ongoing conspiracy to retaliate against him. (Roberts Decl. ¶ 5, Doc. 119, at 27.) Plaintiff also submitted a CDCR Form 22 Inmate Request for Interview to Officer Ciborowski, who accepted it and signed it. (
Plaintiff declared that Officer A. Buenrostro, C. Meza, and R. Davis engaged in unlawful and repressive conduct against him as he attempted to access RJ Donovan's inmate appeal procedure to complain about the Defendants' conduct towards him. (Roberts Decl. ¶ 22, Doc. 119, at 33.) Plaintiff stated that Defendant A. Buenrostro and C. Meza illegally read and refused to process as outgoing mail a
Plaintiff also submitted his own declaration stating the following evidence: that Defendant Solis told another inmate that he heard that Roberts was going to be transferred and that, as a result, he was fearful that Defendant Solis was "going to cause me harm again because of filing 602's or legal actions against RJDCF prison officials" (Roberts Decl. ¶¶ 54-55, Doc. 119, at 40); that Defendant Ciborowski told him that he was going to be transferred and that Chief Deputy Warden Seibel "is tired of you with all these 602's" (Roberts Decl. ¶ 50, Doc. 119, at 39); and that inmate Billy Titus told him that he overheard Defendant Santiago telling Captain Sanchez that Roberts "had inmate Goldmas, CDCR #F-31549, injure himself in order to set Officer Buenrostro up" (Roberts Decl. ¶ 49, Doc. 119, at 39).
In addition to his own declaration, Plaintiff submitted the following inmate declarations: Inmate Juley Gordon stated that Defendant Buenrostro told him that anyone found helping Plaintiff file 602 appeals would be on his hit-list. (Gordon Decl. ¶ 7, Doc. 119, at 83.) Inmate Gerald Marshall declared that Defendant Buenrostro called Plaintiff Roberts a "snitch," told him the Crips "got off on his ass a couple of months ago on the yard," and told him not to help Plaintiff with his legal papers. (Marshall Decl. ¶ 1, Doc. 119, at 98.) Inmate Curtis Rusher declared that Defendant Buenrostro told him that Plaintiff was arrested for child molestation in the 1980s, offered to provide the documents showing that what he was saying was true, and expressed his desire to see Plaintiff "handled good enough to get him out of here!" (Rusher Decl. ¶ 2, Doc. 119, at 100.) Inmate Keith Williams declared that Defendant Buenrostro told him if he and his "homeboys" put Plaintiff "in the hospital this time," he would bring "anything you want in here." (Williams Decl. ¶ 1, Doc. 119, at 103.) Inmate Kelvin Singleton declared that in July 2014, inmates who were West Coast Crip members said a correctional officer offered "five hundred dollars" to "fuck up an EOP inmate named Roberts . . . for snitching on him and some other officers who had come on A yard from the hole." (Singleton Decl. ¶ 3-4, Doc. 119, at 110-111.) He stated that he heard from other inmates that Roberts was attacked during night yard. (Singleton Decl. ¶ 5, Doc. 119, at 111.) Inmate Lavale Jones declared that Defendant Solis told him that he would get "transferred too" if he did not tell him which officers "Roberts is doing 602's or legal paperwork against." (Jones Decl. ¶ 3, Doc. 119, at 77.) Inmate Mark Barbee declared that Defendant Davis told him that Roberts is a snitch because he "wrote a letter to the Warden and got a lot of investigations going against me and other officers." (Barbee Decl. ¶ 3, Doc. 119, at 89.) Inmate Russell Squires declared that Defendant Meza told him that Roberts was a snitch for writing 602's against fellow correctional officers. (Squires Decl. ¶ 2, Doc. 119, at 95.) He also declared that Defendant Meza said that he refused to give him "disinfect, cell phones, lighters, tobacco . . . until one of you guys put Bull in the hospital." (
Rule 56(c) of the Federal Rules of Civil Procedure authorizes the granting of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The standard for granting a motion for summary judgment is essentially the same as for the granting of a directed verdict. Judgment must be entered, "if, under the governing law, there can be but one reasonable conclusion as to the verdict."
The parties bear the same substantive burden of proof as would apply at a trial on the merits, including plaintiff's burden to establish any element essential to his case.
The burden then shifts to the non-moving party to establish, beyond the pleadings, that there is a genuine issue for trial.
While the district court is "not required to comb the record to find some reason to deny a motion for summary judgment,"
In ruling on a motion for summary judgment, the court need not accept legal conclusions "in the form of factual allegations."
"A trial court can only consider admissible evidence in ruling on a motion for summary judgment."
Defendants argue that Plaintiff has failed to establish a triable issue of material fact that Defendants R. Davis, A. Buenrostro, C. Meza, A. Parker, R. Solis, R. Santiago, and K. Seibel all retaliated against him for engaging in First Amendment conduct. (Doc. 172.) Defendants argue that the evidence shows that Defendants acted solely on the basis of legitimate penological interests and not in retaliation against Plaintiff. (Doc. 172, at 20.) Defendants also argue that Plaintiff's state law claims do not contain a private right of action or other civil-enforcement mechanism. (Doc. 172-1, at 23.) Finally, Defendants argue that they are entitled to qualified immunity because their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. (
In opposition to Defendants' motion for summary judgment, Plaintiff has submitted declarations from himself and from other inmates that only address the direct actions of Defendants Buenrostro, Meza, Davis, Parker, and Solis. (Doc. 119.) Based on the evidence submitted by the parties, the Court makes the following recommendations:
The fundamentals of a retaliation claim are easily summarized: "Within the prison context, 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."
Under the first element, plaintiff need not prove that the alleged retaliatory action, in itself, violated a constitutional right.
To prove the second element — retaliatory motive — plaintiff must show that his protected activities were a "substantial" or "motivating" factor behind the defendant's challenged conduct.
The third element concerns a prisoner's First Amendment right to access the courts.
Under the fourth element, plaintiff need not demonstrate a "total chilling of his First Amendment rights," only that defendant's challenged conduct "would chill or silence a person of ordinary firmness from future First Amendment activities."
Regarding the fifth element, the Ninth Circuit has held that preserving institutional order, discipline, and security are legitimate penological goals that, if they provide the motivation for an official act taken, will defeat a claim of retaliation.
Here, Plaintiff has failed to provide sufficient admissible evidence that Defendants K. Seibel, R. Solis, and R. Santiago retaliated against him for no valid penological reason while he was incarcerated at RJ Donovan. Defendant Seibel never had any knowledge that others were planning to retaliate, or were retaliating, against Plaintiff at any time. (Seibel Decl. ¶ 10.) Defendants Seibel and R. Solis never took any adverse action against Plaintiff for any protected conduct that he may have engaged in, including placing Plaintiff's name on a list for transfer out of RJ Donovan in September or October 2014; in fact, Plaintiff was recommended to be retained at RJ Donovan, and this recommendation was endorsed on March 26, 2014 and again on September 12, 2014. (Seibel Decl. ¶¶ 3, 8-9; Solis Decl. ¶ 3.) Defendant Santiago never retaliated against Plaintiff for any reason or manufactured any charges against him. (Santiago Decl. ¶¶ 2-3.) And Defendants Seibel, Santiago, and Solis never called Plaintiff a snitch or child molester at any time. (Seibel Decl. ¶ 11; Santiago Decl. ¶ 5; and Solis Decl. ¶ 5.)
The only evidence submitted by Plaintiff that remotely addresses the behavior of Defendants K. Seibel, R. Solis, and R. Santiago is the following: Inmate Lavale Jones declared that Defendant Solis told him that he would get "transferred too" if he did not tell him which officers "Roberts is doing 602's or legal paperwork against." (Jones Decl. ¶ 3, Doc. 119, at 77.) Inmate Kelvin Singleton declared that in July 2014, inmates who were West Coast Crip members said a correctional officer offered "five hundred dollars" to "fuck up an EOP inmate named Roberts . . . for snitching on him and some other officers who had come on A yard from the hole." (Singleton Decl. ¶ 3-5; Doc. 119, at 110-111.) He stated that he heard from other inmates that Roberts was attacked during night yard. (
Despite this proffer, Plaintiff fails to convince the Court that he has submitted sufficient evidence establishing each of the five elements of a First Amendment retaliation claim as to Defendants Santiago, Seibel, or Solis. To begin, other than providing inadmissible hearsay statements, Plaintiff has not directly addressed the actions of Defendants Santiago or Seibel in his own declaration and has failed to submit any admissible evidence that Defendants Santiago or Seibel retaliated against him. With regard to Defendant Solis, although inmate Lavale Jones declared that Defendant Solis told him that he would get "transferred too" if he did not tell him which officers "Roberts is doing 602's or legal paperwork against" (Jones Dec t. ¶ 3, Doc. 119, at 77), the record shows that Plaintiff was recommended to be retained and remained at RJ Donovan in the fall of 2014; moreover, other than offering hearsay statements and conclusory arguments, Plaintiff has failed to specify with particularity the actual "harm" Defendant Solis committed against him specifically to chill his First Amendment rights. Because the Court finds that Plaintiff has failed to present any evidence of sufficient caliber or quantity to support a jury verdict in his favor as to the retaliation claims made against Defendants K. Seibel, R. Santiago, and R. Solis, the Court recommends that Defendants' motion for summary judgment as to the retaliation claims against these three Defendants be granted.
In Defendants' motion for summary judgment, Defendants Parker, Meza, Davis, and Buenrostro have submitted evidence that they did not retaliate against Plaintiff in violation of the First Amendment. However, unlike the lack of evidence against the other three Defendants, Plaintiff has presented enough evidence that could support a jury verdict that Defendants Parker, Meza, Davis, and Buenrostro retaliated against Plaintiff for the sole purpose of chilling his First Amendment rights.
Defendant Parker declared that he did not confiscate a civil rights lawsuit during a search of Plaintiff's cell on June 3, 2014, that he did not "concoct" false disciplinary charges against Plaintiff, that he did not "plant" a bag of tobacco on Plaintiff's bunk, that he did not search Plaintiff's cell in retaliation for any protected conduct that Plaintiff may have engaged in or for any other improper reason, and that he did not conspire with Defendant Buenrostro, or any other correctional staff member or inmate, to file false disciplinary charges against Plaintiff. (Parker Decl. ¶¶ 2, 4, and 6.) In his opposition papers, Plaintiff has provided the following evidence to support his First Amendment retaliation allegations: Plaintiff submitted his own declaration stating that Defendant Parker confiscated a motion for preliminary injunction with attached declarations during a cell search, which denied him the ability to support his allegations for a preliminary injunction. (Roberts Decl. ¶¶ 42, 44, Doc. 119, at 37-38.)
Defendant Meza declared that he did not take any adverse action against Plaintiff because Plaintiff corresponded with the "class monitors" of CDCR's mental health delivery system, that he never interfered with or refused to process Plaintiff's outgoing or incoming mail, that he never confiscated or otherwise obtained any of Plaintiff's legal materials, that he never manufactured any charges against Plaintiff at any time, and that he never called Plaintiff a snitch or child molester. (Meza Decl. ¶¶ 2, 3, 4, 5, and 6.) In his opposition papers, Plaintiff has provided the following evidence to support his First Amendment retaliation allegations: He submitted his own declaration stating that Defendant Meza refused to process as outgoing mail a
Defendant Davis declared that he never participated in an "ongoing conspiracy to purposefully punish [Plaintiff] for exercising his right to file inmate grievances" and that he never called Plaintiff a snitch or child molester. (Davis Decl. ¶¶ 2-3.) In his opposition papers, Plaintiff has provided the following evidence to support his First Amendment retaliation allegations: Plaintiff submitted his own declaration stating that Defendant Davis engaged in unlawful and repressive conduct against him as he attempted to access RJ Donovan's inmate appeal procedure to complain about the Defendants' conduct towards him, including paying Black Street Gang members money to attack him, which occurred on July 14, 2014. (Roberts Decl. ¶¶ 22 and 53, Doc. 119, at 33, 40.) He also submitted the declaration of inmate Mark Barbee, who declared that Defendant Davis told him that Roberts is a snitch because he "wrote a letter to the Warden and got a lot of investigations going against me and other officers." (Barbee Decl. ¶ 3, Doc. 119, at 89.)
Defendant Buenrostro submitted a declaration stating that he did not take any adverse action against Plaintiff because Plaintiff corresponded with the "class monitors" of CDCR's mental health delivery system, that he did not interfere with or refuse to process Plaintiff's incoming or outgoing mail, and that he did not confiscate a civil rights lawsuit during a search of Plaintiff's cell on June 3, 2014. (Buenrostro Decl. ¶¶ 2, 3, and 11.) Defendant Buenrostro stated that he did not "concoct" false disciplinary charges against Plaintiff, that he did not manufacture any charges against Plaintiff at any time or asked others to do so, and that he has never taken any adverse action against Plaintiff that was not based upon a legitimate, penological reason. (Buenrostro Decl. ¶¶ 12, 20.) Defendant Buenrostro never told Plaintiff that he would "get some payback," never attempted to set up Plaintiff to be injured by other inmates, has never threatened Plaintiff or bribed or caused another inmate to assault, attack, or hurt Plaintiff, and has never called Plaintiff a snitch or child molester at any time. (Buenrostro Decl. ¶¶ 21-24.) Finally, Defendant Buenrostro stated that he conducted a clothed body search of Plaintiff for a valid penological reason, that he never plotted to transfer Plaintiff to another prison (which in any event did not happen in October 2014), and only searched Plaintiff's cell for valid penological reasons. (Buenrostro Decl. ¶¶ 5, 8, 13, and 15.)
In his opposition papers, Plaintiff has provided the following evidence to support his First Amendment retaliation allegations: Plaintiff stated that Defendant Buenrostro refused to process as outgoing mail a
While Plaintiff has failed to put forth sufficient evidence demonstrating that a retaliatory motive to chill Plaintiff's First Amendment rights was the but-for cause of Defendant Buenrostro's clothed body search of Plaintiff, the searches of his cell for contraband, or Plaintiff's retention status at RJ Donovan, Plaintiff has demonstrated that there is a need for a trial to decide the following: 1) whether Defendant Parker confiscated his legal papers to deny him access to the courts; 2) whether Defendant Buenrostro labeled Plaintiff a snitch or a child molester in front of other inmates in order to chill Plaintiff's First Amendment rights; 3) whether Defendant Davis labeled Plaintiff a snitch to another inmate and engaged in retaliatory conduct including paying others to harm Plaintiff in order to chill Plaintiff's First Amendment rights; 4) whether Defendant Meza called Plaintiff a snitch in front of another inmate and made attempts to deter Plaintiff's First Amendment conduct; 5) whether Defendant Buenrostro recruited other inmates to harm Plaintiff in order to chill Plaintiff's First Amendment rights; and 6) whether Defendant Buenrostro refused to process his litigation mail or otherwise deterred Plaintiff's ability to pursue the legal process in order to chill Plaintiff's First Amendment rights. Viewing the facts in light most favorable to Plaintiff, the Court concludes that by providing evidence that Defendant Parker confiscated his legal papers and that Defendants Buenrostro, Meza, and Davis referred to Plaintiff as a snitch in front of other inmates, put Plaintiff at potential risk of assault from other prisoners, and made verbal and/or physical attempts to thwart Plaintiff's access to the legal process, Plaintiff has raised triable issues of fact as to whether Defendants Parker's, Meza's, Davis's, and Buenrostro's actions chilled the exercise of his First Amendment rights for no valid penological reason.
Although defense counsel has raised the defense of qualified immunity which 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 should have known,"
In sum, Defendants' motion for summary judgment of Plaintiff's First Amendment retaliation claims against Defendants Parker, Davis, Meza, and Buenrostro should be denied.
In addition to his federal claims, Plaintiff has asserted state law claims under California Penal Code §§ 2600, 2651, and 2601(b) (Doc. 1, at ¶¶ 82-84) and under Title 15 of the California Code of Regulations, §§ 3004, 3060(a), 3061, 3084.1(d), 3084.2(f), 3130, 3133(e), 3141(c)(1), 3142, 3144, 3268.2 (c)(1), 3271, 3291(c), and 3401.5(a)(3)(E)(F)
With regard to Plaintiff's alleged violations of the California Penal Code, Plaintiff fails to state a claim.
With regard to Plaintiff's alleged violations of Title 15 of the California Code of Regulations, "[t]he Court is unaware of any authority for the proposition that there exists a private right of action available to Plaintiff for violation of Title 15 regulations."
Finally, with regard to Plaintiff's general negligence claim against Defendant Seibel "for failing to institute measures to control subordinates and supervise" the correctional officer Defendants (Doc. 1, at ¶ 96), Plaintiff has failed to submit any admissible evidence in the form of a declaration or other means supporting his allegation against Defendant Siebel, who has denied any wrongdoing. In her declaration, Seibel specifically states that she never conspired with any correctional staff member, inmate, or any other person to retaliate against Plaintiff or otherwise violate his civil rights and that she had no knowledge that any correctional staff member acted inappropriately toward Plaintiff or was retaliating against Plaintiff. (Seibel Decl. ¶ 4, Doc. 172-8, at 2.) She had no knowledge that any disciplinary charges filed against Plaintiff were false or fabricated, and she had not seen any such evidence. (
For the aforementioned reasons, the Court recommends the following:
The Court submits this Report and Recommendation to United States District Judge William Q. Hayes under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.
The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's Order.
