MICHAEL J. SENG, Magistrate Judge.
Plaintiff Michael Witkin is a prisoner proceeding pro se and in forma pauperus in this civil rights action filed pursuant to 42 U.S.C. § 1983. At all times relevant to this action, Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California. This case proceeds on Plaintiff's Second Amended Complaint, filed May 20, 2013, alleging that Defendant S. Solis intentionally converted funds from Plaintiff's inmate trust account and retaliated against Plaintiff for reporting the conversion by denying him access to the prison law library. (ECF No. 17.) Defendant has declined Magistrate Judge jurisdiction. (ECF No. 28.)
Under the Court's original scheduling order, the deadline for all dispositive motions, including motions for summary judgement, was August 15, 2015. On motion by Defendant, this deadline was continued to December 15, 2015. (ECF No. 36.) On December 11, 2015, Defendant filed a motion for a thirty-day extension of time to file a dispositive motion on the grounds that new counsel was assigned to this case on December 2, 2015. (ECF No. 37.) The Court did not issue an order addressing Defendant's request for a thirty-day extension. Defendant then filed the instant motion for summary judgment on January 15, 2016. (ECF No. 39.) Also on January 15, 2016, Defendant filed a motion requesting the Court take judicial notice of California Code of Regulation, Title 15, Sections 3120 to 3124. (ECF No. 40.) Plaintiff filed an opposition to Defendant's motion for summary judgment on February 8, 2016. (ECF No. 42.) Defendant filed a reply on February 16, 2016. (ECF No. 43.) This matter is submitted. E.D. Cal. Local Rule 230(l).
Plaintiff's claims stem from his use of the PVSP law library in 2010 and 2011. On October 21, 2010, Plaintiff submitted a copy request form to law librarian Defendant S. Solis. Although Plaintiff only intended to request 52 copied pages, he received a total of 104 unreadable and unusable pages. The cost for all 104 pages was deducted from Plaintiff's inmate trust account, $10.40 in total.
Plaintiff submitted an Inmate Appeal Form 602 ("602") against Defendant on November 8, 2010, alleging that Defendant intentionally converted the funds in Plaintiff's inmate trust account. Defendant then retaliated against Plaintiff by denying him Priority Legal User ("PLU") status so that he was unable to access the library on several occasions between the dates of February 16, 2011, and March 1, 2011, and again between April 11 and April 21, 2011. Because he did not have sufficient access to the law library, he did not have enough time to properly research and draft his filings in his federal habeas case.
Any party may move for summary judgment, and "[t]he [C]ourt 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). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
The party seeking summary judgment "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."
In ruling on a motion for summary judgment, a court does not make credibility determinations or weigh evidence.
All facts are deemed undisputed unless otherwise noted:
Plaintiff was incarcerated at PVSP, Facility C, from September 2009 to September 2012. Pl.'s Dep. 8:25-9:8. Defendant was employed at PVSP as a law librarian from August 2010 to July 2011. Solis Decl. ¶ 1.
Law library users at PVSP fall into two categories: General Legal Users ("GLUs") and Priority Legal Users ("PLUs").
On October 21, 2010, Plaintiff requested a copy job from Defendant in the law library. Pl. Dep. 42:24-43:9. Though Plaintiff had intended to request only one copy of a 52 page file, he accidentally filled out the form incorrectly and requested "52" sets of copies. Pl. Dep. 44:20-45:18. Assuming Plaintiff meant to request only two sets of copies, not 52, Defendant made two copies and gave both to Plaintiff. Pl. Opp'n Ex. C, "D. Resp. to Interrog. No. 10." Plaintiff's trust account was charged a total of $10.40 to cover the cost of copying 104 pages. Pl. Dep. 47:24-48:4. Plaintiff contends each page was unclear, of poor quality, and unusable. Pl. Dep. 48:3-9. Plaintiff demanded a full refund of the amount charged against his account. Pl. Dep. 47:24-25. He and Defendant engaged in a verbal altercation over the incident. Pl. Dep. 47:13-23.
On November 8, 2010, Plaintiff filed a "602" complaint against Defendant relating to the October 21, 2010, copy incident and being overcharged.
Plaintiff's retaliation claim centers on his assertion that following the above events, Defendant intentionally denied Plaintiff PLU status at two different points in the course of Plaintiff's federal habeas appeal. The Court therefore summarizes the relevant procedural history of that appeal, taking judicial notice of all filings in that case:
On December 21, 2009, Plaintiff filed a petition for a writ of habeas corpus in the United States District Court for the Central District of California challenging his 2005 conviction for resisting arrest because the 2005 conviction enhanced his prison sentence when later, in 2009, he was convicted of attempted robbery. The habeas case was transferred to the Eastern District of California as case number
On February 22, 2011, Plaintiff filed objections to Judge Drozd's findings and recommendations. On March 10, 2011, Judge Garland E. Burrell, Jr., rejected Plaintiff's objections and adopted the findings and recommendations in full, directing Respondent to file responsive pleadings to the petition within thirty days, and directing Plaintiff to file an opposition to Respondent's motion, if one was filed, within thirty days after its service.
On April 5, 2011, Respondent filed a motion to dismiss, and it was served on Plaintiff on April 8, 2011. Plaintiff filed an opposition to Respondent's motion to dismiss on May 9, 2011.
On April 4 and November 28, 2011, Plaintiff moved for reconsideration of Judge Drozd's February 11, 2011, findings and recommendations. He claimed that Judge Drozd's finding that the challenge to Plaintiff's 2005 conviction was time-barred was based on an error of fact. On December 14, 2011, Judge Drozd agreed and issued findings and recommendation granting Plaintiff's motions for reconsideration and vacating the February 11, 2011 order. On January 4, 2012, Judge Burrell adopted Judge Drozd's findings and recommendations in full and vacated his own March 10, 2011, order.
Typically, Defendant's supervisor, and not Defendant, made the ultimate decision as to whether or not to grant an inmate PLU status. (Def.'s Resp. to Pl.'s Interrog. Set 1, No. 8.) However, an inmate whose PLU application was still pending could be allowed access to the law library prior to receiving formal PLU approval.
The fourteen-day filing deadline for filing objections to Judge Drozd's February 11, 2011, findings and recommendations in the habeas case entitled Plaintiff to fourteen days of PLU status. 15 Cal. Code Regs. § 3122(b). Sometime between February 11, 2011, and February 16, 2011, Plaintiff submitted the judge's order, along with his PLU application, to the law library. Pl. Dep. 55:12-56:18.
Plaintiff claims that Defendant did not call him up to the law library with the other PLUs on February 16, 17, 22, 23, 24, 25, and 28, 2011. Pl. Dep. 76:3-5. Plaintiff states that on February 16, 2011, he went to the library during yard hours and asked Defendant why she did not call him up with the other PLUs that day. Pl. Dep. 75:14-17. Plaintiff alleges that Defendant responded that she was not going to call him to the library with the other PLUs anymore because he filed a 602 against her. Pl. Dep. 75:18-76:2. On that day, Plaintiff was forced to access the library on GLU status during his designated yard time. Pl. Dep. 76:3-7. The yard did not open again for the rest of the month. Pl. Dep. 75:5-7. Plaintiff then tried to use the law library as a PLU on February 17, 24, and 28, but was denied each time by Defendant, who either refused to grant Plaintiff PLU access or physically blocked Plaintiff from entering the library. Pl. Dep. 59:1-15; Pl. Ex. E at 1-3; Pl. Ex. G at 2. Plaintiff did gain PLU access on February 25, but only because Defendant's supervisor instructed Defendant to let Plaintiff in. In sum, Plaintiff was only able to access the library on February 16, 2011, as a GLU, and again on February 25, 2011, as a PLU.
Plaintiff contends that because his access to the law library was so limited, the objections he filed to Judge Drozd's February 11, 2011 findings and recommendations in the habeas case were poorly researched and drafted. Pl. Second Am. Compl. at 12. Only after Plaintiff filed his subsequent motions for reconsideration did Judge Drozd ultimately vacate his February 11, 2011 order.
Defendant kept library access logs in the regular course of business as a part of her duties as the law librarian.
Defendant declares that at no time did she intentionally misappropriate Plaintiff's trust funds, harbor retaliatory animus against Plaintiff, retaliate against him, or deny him access to the law library because of his prior complaints, grievances, or other speech. Solis Decl. ¶ 4.
Plaintiff further alleges that once he received Respondent's April 5, 2011 motion to dismiss, on April 11, 2011, Plaintiff filed another PLU application along with a copy of Judge Burrell's March 10, 2011, order. Pl. Opp'n Ex. D, "Inmate Appeal 602." However, Plaintiff was not called to the library as a PLU until April 21, 2011. Pl. Dep. 61:21-62:23. Plaintiff states he does not remember if he accessed the library on GLU status between the dates of April 8 and 21, 2011. Pl. Dep. 62:24-63:6. Plaintiff ultimately missed his filing deadline on this habeas case. Pl. Second Am. Compl. at 7-8.
Defendant's logs demonstrate that Plaintiff accessed the law library on April 11, 13, 19, 20, and 21, though again they do not indicate whether that access was as a GLU or PLU. Solis Decl. ¶ 5.
Plaintiff does not dispute that he filed an untimely conversion claim by waiting until May 8, 2011 to file a claim that arose more than six months prior, on October 21, 2010. Under California Government Code § 911.2, Plaintiff must have filed his claim for conversion not later than six months after the accrual of the cause of action. Cal. Gov. Code § 911.2(a). Plaintiff offers no arguments to counter Defendant's contention that his conversion claim was untimely filed, and indeed concedes that summary judgment should be granted on that claim. (ECF No. 42.) Therefore, without evaluating the merits of Plaintiff's conversion claim, it will be recommended that Plaintiff's conversion claim be DISMISSED.
"Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so."
It is undisputed that Plaintiff engaged in protected conduct when he filed a 602 against Defendant. Defendant's motion for summary judgment therefore turns on the following issues: (1) Did Plaintiff suffer an adverse action; (2) Does Plaintiff show a retaliatory animus on the part of Defendant; and (3) Did Defendant's actions further a legitimate penological purpose. For the reasons set forth below, the Court finds that there exist genuine issues of material fact as to each element of Plaintiff's First Amendment retaliation claim, and so recommends that Defendant's motion for summary judgment on this claim be DENIED.
To qualify as adverse, the action taken against Plaintiff must be sufficient to chill an inmate of ordinary firmness from exercising his First Amendment rights.
To support her argument in favor of summary judgment, Defendant argues that if any denial of access did occur, "it [was] not sufficient to rise to the level of a First Amendment retaliation claim" because Plaintiff accessed the law library numerous times during the time periods in question. D's Mot. Summ. J. at 10.
In support, Defendant cites the Ninth Circuit's decision in
Plaintiff, on the other hand, argues that Defendant engaged in an adverse action when she intentionally denied Plaintiff PLU access to the library on dates when he was entitled to it: February 16, 17, 22, 23, 24, 25, and 28, 2011, and between April 11 and 22, 2011. Plaintiff alleges that Defendant's intentional denial of PLU access limited Plaintiff's ability to adequately research and draft his legal papers and forced Plaintiff to miss court-ordered deadlines. Pl. Opp'n at 6-7. Plaintiff alleges that Defendant's actions would have chilled a person of ordinary firmness. Plaintiff does not directly address Defendant's contention that the sign-in logs indicate Plaintiff had sufficient access to the law library.
As an initial matter, Defendant does not dispute that the intentional denial of access to the prison law library would constitute an adverse action.
Plaintiff's interpretation of what constitutes adverse action more accurately reflects applicable law.
Under
Defendant also incorrectly focuses on the actual library access retained by Plaintiff. The question is not whether Plaintiff suffered a significant or insignificant diminishment in library access; the issue is whether Defendant threatened to deny Plaintiff a right of access in retaliation for his pursuit of a First Amendment right. At this point the evidence is equivocal and the Court cannot determine if Plaintiff was rightfully entitled to PLU status on the days he was denied it. If he was, Plaintiff could have judgment in his favor even if Defendant's attempts to exclude him were unsuccessful or ineffective.
With questions remaining as to how and under what status and circumstances Plaintiff had a right to access and did access the library on February 16, 25, and 28, 2011, and between April 11 and 21, 2011, the Court must recommend denial of Defendant's summary judgment motion.
The second element of a First Amendment retaliation claim focuses on causation and motive.
In this Circuit, Plaintiff need "only put forth evidence of retaliatory motive that, taken in the light most favorable to him, presents a genuine issue of material fact as to" Defendant's motivation.
Defendant argues Plaintiff cannot prove that Plaintiff's filing of a grievance against Defendant was a substantial motivating factor behind Defendant's alleged restriction of his access to the library. Defendant claims several months passed between Plaintiff's filing of the 602 and Defendant's alleged adverse action, a gap too attenuated to suggest a retaliatory animus. Defendant also points to the substantial number of times Plaintiff accessed the law library even after between the filing of the 602.
In addition to his claim that Defendant actually told Plaintiff on February 16, 2011, that she would no longer be calling him up with the other PLUs because he had filed a grievance against her
Viewing the evidence presently before the Court in the light most favorable to Plaintiff, there is sufficient circumstantial evidence to lead a trier of fact to conclude that Defendant threatened to and did limit Plaintiff's PLU access to the law library because of the 602 he filed. Summary judgment is therefore not available.
Plaintiff must also demonstrate "that there were no legitimate correctional purposes motivating the actions he complains of,"
Defendant's argument in this regard is brief: the prison was suffering from an overpopulation crisis and Defendant needed to balance the limited library resources against the large inmate population.
Plaintiff argues that Defendant's actions were contrary to a legitimate penological goal because they directly violated established regulations regarding CDCR law library access. Under the regulations, Plaintiff was entitled to PLU status. And, Defendant's overpopulation claims notwithstanding, all other PLU status prisoners were called to the library throughout this period when Plaintiff was not. Pl. Dep. 58:5-21; Pl. Ex. E at 1-3.
Assuming Plaintiff can show that he suffered an adverse action and that Defendant harbored a retaliatory animus, the Court still must grant Defendant summary judgment if she can show that a reasonable trier of fact would have no choice but to find that Defendant was motivated by a legitimate penological purpose. Defendant has not made this showing.
First, Defendant proffers only Plaintiff's deposition testimony in support for her contention that PVSP was experiencing a population overcrowding crisis.
Defendant has therefore failed to show a "valid, rational connection between the [adverse] action and the legitimate, neutral governmental interest put forward to justify it."
Taking Plaintiff's allegation that other inmates were admitted to the library on PLU status on the dates in question as true, a reasonable trier of fact could conclude that population problems notwithstanding, the library could have accommodated Plaintiff on the dates in question. Therefore, Defendant's request for summary judgment will be DENIED.
Finally, the Court notes that Defendant made a new argument for the first time in her reply brief:
As there exists a dispute regarding Plaintiff's entitlement to PLU status, the Court will not consider this argument.
Defendant timely filed her December 11, 2015, motion for a thirty-day extension of time to file a dispositive motion, but the Court failed to address it before Defendant filed the instant motion for summary judgment on January 15, 2016. Good cause having been shown, Defendant's motion for an extension of time to file a dispositive motion will be GRANTED, NUNC PRO TUNC to December 15, 2015. Fed. R. Civ. P. 60(b);
For the reasons set forth above in note 2, Defendant's motion requesting judicial notice of California Code of Regulations, Title 15, Sections 3120 to 3124 (ECF No. 40) will be GRANTED.
Based on the foregoing, IT IS HEREBY ORDERED that:
These Findings and Recommendation 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
Plaintiff raised no objection to the authenticity of these library logs. Under Fed. R. Evid. 803(6) Commentary on 2014 Amendments ". . . [I]f the proponent has established the stated requirements of the exception . . . then the burden is on the opponent to show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness." Thus, for the purposes of this summary judgment motion, the logs are deemed authenticated and the Court may properly consider them in ruling on the motion.
