(PC) Garrett v. Baker ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM ALLEN GARRETT, No. 2:16-cv-1336 KJM AC P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 JEFF MACOMBER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action pursuant to 42 U.S.C. § 1983. Currently before the court is defendants’ motion for 19 summary judgment (ECF No. 111), which plaintiff opposes (ECF No. 120). For the reasons set 20 forth below, this court recommends that defendants’ motion for summary judgment be granted. 21 I. Procedural History 22 On September 11, 2018, the undersigned screened plaintiff’s complaint and found that 23 plaintiff stated claims against defendants Masterson and Baker for violating his Fourteenth 24 Amendment rights to due process and equal protection. ECF No. 12 at 12. The court dismissed 25 with leave to amend his Eighth Amendment claims and his claims against defendants Macomber 26 and Cleveland. Id. Plaintiff chose to proceed solely on his Fourteenth Amendment claims and 27 voluntarily dismissed without prejudice his Eighth Amendment claims and all claims against 28 //// 1 Macomber and Cleveland. See ECF No. 15; ECF No. 16. On January 1, 2020, defendants filed 2 the instant motion for summary judgment. ECF No. 111. 3 II. Plaintiff’s Allegations 4 Plaintiff alleges that defendants violated his Fourteenth Amendment rights to due process 5 and equal protection. ECF No. 1 at 4. Specifically, plaintiff alleges that defendant Masterson 6 discriminated against him for having a mental illness when he removed plaintiff from his position 7 as a worker on the yard crew. Id. Plaintiff argues that he was punished because of his mental 8 illness, and alleges he was in the process of ongoing treatment from a qualified clinician. Id. at 7. 9 He also alleges that defendant Baker denied him due process during his disciplinary 10 hearing because Baker intentionally and purposefully refused to call plaintiff’s psychiatrist at his 11 hearing, and claims that Baker “intentionally and purposefully treat[s] and punish[es] prisoners 12 who suffer from mental illnesses disparately on the basis of an unjustified discriminatory 13 standard.” Id. at 4. According to the plaintiff, because he was denied the opportunity to call his 14 doctor as a witness, he was subjected to a greater loss of good-time credits and the loss of a 15 paying job. Id. 16 III. Motion for Summary Judgment 17 A. Defendants’ Arguments 18 Defendants argue that plaintiff’s claims fail because defendant Masterson had a rational 19 basis for issuing a rules violation report (“RVR”), and defendant Baker had a rational basis for 20 her decision-making and conduct during the RVR hearing and did not refuse Plaintiff’s request 21 for a witness during the hearing. ECF No. 111-2 at 13-19. Defendants also contend that the 22 absence of a witness at the disciplinary hearing did not affect the hearing’s proceedings or 23 outcome. Id. at 22-23. Defendants further argue that they are entitled to qualified immunity. Id. 24 at 26-28. 25 B. Plaintiff’s Response 26 At the outset, the court notes that plaintiff has failed to comply with Federal Rule of Civil 27 Procedure 56(c)(1)(A), which requires that “a party asserting that a fact . . . is genuinely disputed 28 must support the assertion by . . . citing to particular parts of materials in the record.” Plaintiff 1 has also failed to file a separate document disputing defendants’ statement of undisputed facts, as 2 required by Local Rule 260(b). 3 However, it is well-established that the pleadings of pro se litigants are held to “less 4 stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 5 520 (1972) (per curiam). Nevertheless, “[p]ro se litigants must follow the same rules of 6 procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) 7 (citations omitted), overruled on other grounds, Lacey v. Maricopa County, 693 F.3d 896, 928 8 (9th Cir. 2012) (en banc). However, the unrepresented prisoners’ choice to proceed without 9 counsel “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily 10 imposes upon a litigant,” such as “limited access to legal materials” as well as “sources of proof.” 11 Jacobsen v. Filler, 790 F.2d 1362, 1364-65 & n.4 (9th Cir. 1986) (alteration in original) (citations 12 and internal quotation marks omitted). Inmate litigants, therefore, should not be held to a 13 standard of “strict literalness” with respect to the requirements of the summary judgment rule. Id. 14 at 1364 n.4 (citation omitted). 15 The court is mindful of the Ninth Circuit’s more overarching caution in this context, as 16 noted above, that district courts are to “construe liberally motion papers and pleadings filed by 17 pro se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 18 611 F.3d 1144, 1150 (9th Cir. 2010). Accordingly, the court considers the record before it in its 19 entirety despite plaintiff’s failure to be in strict compliance with the applicable rules. However, 20 only those assertions in the opposition which have evidentiary support in the record will be 21 considered. 22 Plaintiff opposes the motion on the ground that he believes that a jury could find that 23 defendants discriminated against him for having a mental illness and that defendant Baker denied 24 plaintiff his due process right to call witnesses at his disciplinary hearing. ECF No. 120 at 1-3. 25 IV. Legal Standards for Summary Judgment 26 Summary judgment is appropriate when the moving party “shows that there is no genuine 27 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 28 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 1 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 2 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 3 moving party may accomplish this by “citing to particular parts of materials in the record, 4 including depositions, documents, electronically stored information, affidavits or declarations, 5 stipulations (including those made for purposes of the motion only), admissions, interrogatory 6 answers, or other materials” or by showing that such materials “do not establish the absence or 7 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 8 support the fact.” Fed. R. Civ. P. 56(c)(1). 9 “Where the non-moving party bears the burden of proof at trial, the moving party need 10 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 11 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 12 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 13 motion, against a party who fails to make a showing sufficient to establish the existence of an 14 element essential to that party’s case, and on which that party will bear the burden of proof at 15 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 16 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 17 a circumstance, summary judgment should “be granted so long as whatever is before the district 18 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 19 56(c), is satisfied.” Id. 20 If the moving party meets its initial responsibility, the burden then shifts to the opposing 21 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 22 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 23 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 24 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 25 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 26 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 27 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty 28 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 1 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a 2 reasonable jury could return a verdict for the nonmoving party,” Anderson, 447 U.S. at 248. 3 In the endeavor to establish the existence of a factual dispute, the opposing party need not 4 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed 5 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 6 truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. V. Cities 7 Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the “purpose of summary judgment is to pierce the 8 pleadings and to assess the proof in order to see whether there is a genuine need for trial.” 9 Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted). 10 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 11 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 12 v. Central Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is 13 the opposing party’s obligation to produce a factual predicate from which the inference may be 14 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 15 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 16 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 17 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 18 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 19 U.S. at 289). 20 On January 13, 2020, defendants served plaintiff with notice of the requirements for 21 opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 111-1 22 at 1; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988); Rand v. Rowland, 154 F.3d 23 952, 960 (9th Cir. 1998) (en banc) (movant may provide notice). 24 V. Undisputed Facts 25 Despite instructions to do so, plaintiff has failed to comply with Local Rule 260(b), which 26 required him to dispute defendant’s statement of undisputed facts by filing a separate document 27 that includes all “material facts as to which there is a genuine issue precluding summary judgment 28 or adjudication.” In addition, plaintiff has failed to comply with Federal Rule of Civil Procedure 1 56(c)(1)(A), which required him to cite to materials in the record when asserting a dispute of fact. 2 The court considers the record in its entirety despite plaintiff’s failure to strictly comply with the 3 rules, but only those assertions in the opposition which have evidentiary support in the record will 4 be considered. Unless otherwise noted, the following facts are expressly undisputed by the 5 parties or the court has determined them to be undisputed based on a thorough review of the 6 record. The initial background facts are taken from Plaintiff’s Complaint, ECF No. 1, 7 Defendant’s Statement of Undisputed Facts (DSUF), ECF No. 111-3, Plaintiff’s Opposition to 8 Motion for Summary Judgment, ECF No. 120, and Defendant’s Reply in Support of Defendants’ 9 Motion for Summary Judgment, ECF No. 123. 10 At the time relevant to the complaint, plaintiff was an inmate at the California State 11 Prison-Sacramento (CSP-SAC) and in custody of the California Department of Corrections and 12 Rehabilitation (CDCR). DSUF ¶ 1. Defendant Baker was employed as a correctional lieutenant, 13 and defendant Masterson was employed as a correctional officer at CSP-SAC. DSUF ¶¶ 1-3. 14 Defendant Masterson was the correctional officer who was assigned to and regularly oversaw 15 inmates assigned to work on the B-Yard. DSUF ¶¶ 4-5. Between August 1, 2015 and November 16 9, 2015, plaintiff was assigned to the position of yard worker in the B-Yard. Id. 17 The parties dispute whether retrieving or picking up trash were part of the assigned duties. 18 During his deposition, plaintiff testified that as a yard worker, part of his duties was to collect and 19 sort through trash. ECF No. 111-4 at 14-15 (Def.’s Mot. Summ. J., Ex. A). Defendants contend 20 that his duties were limited to landscaping, not trash sorting. DSUF ¶¶ 4-5; ECF No. 111-4 at 28 21 (Defendant Masterson’s Decl. ¶ 4). 22 Prior to November 9, 2015, defendant Masterson often noticed plaintiff picking up or 23 retrieving trash without being authorized to do so. DSUF ¶ 8. His acts of retrieving trash created 24 work-related disruptions and security concerns. Id. 25 The parties dispute whether plaintiff was ever notified that picking up trash was not part 26 of his assigned duties. According to defendant Masterson, his initial contacts with plaintiff 27 focused on informing him that retrieving or picking up trash was not authorized and asking 28 plaintiff to stop. Id. After several confrontations over plaintiff’s repeated acts of picking up 1 trash, defendant Masterson warned plaintiff that he would issue a rules violation report (RVR) if 2 he found that plaintiff continued to retrieve trash despite orders not to do so. DSUF ¶¶ 9-10. 3 Defendant Masterson contends that he heard, on multiple occasions, CDCR staff order plaintiff 4 via the public announcement system to stop retrieving trash.1 DSUF ¶ 12. In contrast, plaintiff 5 states that he “never was told that [picking up trash was not part of his job]” and that he “never 6 had a problem with any officers . . . about the way [he] picked up trash or where [he] picked it 7 up.” ECF No. 111-4 at 15 (Def.’s Mot. Summ. J., Ex. A). 8 On November 9, 2015, plaintiff was released to the B-Yard to perform his assigned duties 9 as a yard worker. DSUF ¶ 14. CSP-SAC treatment center staff informed defendant Masterson 10 that plaintiff had been observed picking up trash at the treatment center. DSUF ¶ 16. Plaintiff 11 was not authorized to enter the treatment center and had committed a security breach. DSUF ¶ 12 17. Defendant Masterson attests that he told plaintiff to return to his assigned building, to which 13 plaintiff responded, “I don’t give a fuck what you say.” DSUF ¶ 18. When defendant Masterson 14 handcuffed and transported him to a holding cell, plaintiff admitted to picking up the trash and 15 explained that “that’s the only way I can make money.” DSUF ¶ 19. 16 The parties dispute defendant Masterson’s basis for recommending plaintiff’s removal 17 from his assigned position. Defendant Masterson asserts that he issued a rules violation report 18 (RVR) to plaintiff for: plaintiff’s failure to obey an order from CDCR staff based on Masterson’s 19 experience giving orders to plaintiff to not retrieve trash, plaintiff’s failure to provide an adequate 20 explanation when confronted about retrieving trash, and plaintiff’s admission to Masterson that he 21 did pick up trash and that he did so for financial gain. DSUF ¶ 20. Defendant Masterson 22 contends that he recommended that plaintiff be removed from his job assignment2 because his 23 1 When asked during his deposition if plaintiff received instructions over a speaker system to 24 stop picking up trash, plaintiff neither denied nor confirmed. ECF No. 111-4 at 11 (Def.’s Mot. Summ. J., Ex. A). Thus, this assertion is considered undisputed. 25 2 Plaintiff does not dispute Masterson’s assertion that plaintiff admitted to picking up trash and 26 his justification as to why, nor does he contest that defendant Masterson only made a recommendation and did not participate in the adjudication of his work status review. Rather, he 27 asserts that Masterson did not allow him to work before the RVR was adjudicated and “referr[ed] [sic] that plaintiff be unassigned.” ECF No. 120 at 7. Accordingly, defendant Masterson’s 28 assertions regarding plaintiff’s admission and Masterson’s lack of participation in the decision to 1 pattern of behavior created unnecessary work-related disruptions and security concerns. DSUF ¶ 2 21. Plaintiff asserts that defendant Masterson was aware that plaintiff dug through trash because 3 of his mental illness. ECF No. 120 at 7. He further contends that defendant Masterson 4 “repeatedly told [plaintiff that] he did not want [him] to work on the yard crew and that 5 [Masterson] only hired higher functioning prisoners.” ECF No. 1 at 5. According to plaintiff, 6 defendant Masterson “only wanted prisoners working on the yard crew who were . . . in control 7 over their mental illnesses.” Id. at 4; ECF No. 111-4 at 15. Plaintiff asserts that Masterson stated, 8 “I don’t want no trash digger on my work crew” and “I’m going to write you up and get you 9 fired.” ECF No. 111-4 at 18. 10 Defendant Baker was the presiding senior hearing officer during the December 17, 2015 11 hearing that adjudicated the RVR defendant Masterson issued to plaintiff. DSUF ¶ 24. Plaintiff 12 appeared at the RVR hearing and was advised that he could request witnesses for the RVR 13 hearing. DSUF ¶¶ 25-26. 14 Parties dispute whether plaintiff requested to call a witness at his hearing. According to 15 defendant Baker, plaintiff waived his right to witnesses at the RVR hearing, admitted to guilt and 16 entered a plea of guilty. DSUF ¶¶ 26-27. Plaintiff does not expressly assert in his complaint that 17 he requested a witness at the disciplinary hearing, but he does so in his opposition. ECF No. 120 18 at 4, 9. However, plaintiff does not provide a verified statement, or a proffer, as to when he made 19 the request, who he made the request to, and whether he made multiple requests. 20 Defendant Baker asserts that plaintiff made the following statement during the RVR 21 hearing: “I was having urges to go through the trash, and I tried to talk to my Clinician about 22 ways to deal with this. He came along and told me not to do it, and it was hard for me to change 23 up my routine.” DSUF ¶ 28. Defendant Baker understood this to be plaintiff’s admission to 24 retrieving trash despite defendant Masterson’s orders. Id. 25 Defendant Baker asserts that she reviewed information by the clinical staff concerning 26 plaintiff’s mental illness and concluded that plaintiff should be held accountable for disobeying a 27 28 remove plaintiff is deemed undisputed. 1 direct order from CDCR staff and that the credit and privilege losses should be mitigated in light 2 of plaintiff’s health conditions.3 DSUF ¶ 32. To defendant Baker, any witness testimony 3 concerning plaintiff’s mental health condition would not affect the penalty assessed during the 4 hearing. Id. Defendant Baker decided to assess a fifteen-day credit loss and elected to not restrict 5 plaintiff’s access to family or group programming. Id. Regarding Masterson’s recommendation 6 that plaintiff be removed from his work assignment, defendant Baker referred plaintiff to the Unit 7 Classification Committee (UCC) for a review of his work privilege status. Id. Baker asserts that 8 the UCC convened separately and adjudicated plaintiff’s work status on January 5, 2016 and that 9 Baker did not make any decision to remove plaintiff from his assigned work duties.4 DSUF ¶ 35. 10 Defendants attest that since losing his job as a result of the RVR, plaintiff has regained work 11 privileges through follow up appearances before the UCC. DSUF ¶ 38. 12 VI. Analysis 13 A. Fourteenth Amendment 14 i. Due Process 15 Pursuant to the Fourteenth Amendment to the U.S. Constitution, “[n]o State shall . . . 16 deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. 17 XIV, § 1. 18 Prisoners may . . . not be deprived of life, liberty or property without due process of law . . . [T]he fact that prisoners retain rights under 19 the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which 20 they have been lawfully committed . . . . [T]here must be mutual accommodation between institutional needs and objectives and the 21 provisions of the Constitution that are of general application. 22 Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citations omitted). When an inmate is subject to 23 3 Plaintiff asserts that defendant Baker was aware that he was unable to stop retrieving trash 24 because of his mental illness but disregarded the recommendations from the clinical staff. ECF No. 120 at 10. He only cites evidence showing that clinical staff recommended against assessing 25 a SHU term, time on C-status or loss of yard time, none of which plaintiff asserts to have 26 happened. Id. at 47 (Pl.’s Opp’n, Ex. H). Thus, defendant’s assertion is deemed undisputed. 4 Plaintiff claims that defendant Baker participated in the UCC hearing that adjudicated his work 27 status but has not provided evidence to dispute that fact. ECF No. 120 at 7. Accordingly, defendant Baker’s assertion that she did not make any decision to remove plaintiff from his 28 position is deemed undisputed. 1 disciplinary sanctions that include the loss of good-time credits, prison officials must provide the 2 prisoner with (1) a written statement at least twenty-four hours before the disciplinary hearing 3 that includes the charges, a description of the evidence against the prisoner, and an explanation 4 for the disciplinary action taken; (2) an opportunity to present documentary evidence and call 5 witnesses, unless calling witnesses would interfere with institutional security; and (3) legal 6 assistance where the charges are complex or the inmate is illiterate. Id. at 539, 563-70. 7 “When prison officials limit an inmate’s efforts to defend himself, they must have a 8 legitimate penological reason.” Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992) (per 9 curiam) (citations omitted) (concluding that prisoners do not have a right to have an independent 10 drug test performed at their own expense). The right to call witnesses may be limited by “the 11 penological need to provide swift discipline in individual cases . . . [or] by the very real dangers 12 in prison life which may result from violence or intimidation directed at either other inmates or 13 staff.” Ponte v. Real, 471 U.S. 491, 495 (1985). Prison officials must eventually explain their 14 reasons for limiting the prisoner’s ability to defend himself, and where the record does not 15 contain such information, it is error to grant summary judgment. See Serrano v. Francis, 345 F.3d 16 1071, 1079 (9th Cir. 2003); cf. Ponte, 471 U.S at 499 (allowing in camera review of prison 17 officials’ reasons for limiting prisoner’s defense). “[T]he requirements of due process are 18 satisfied if some evidence supports the decision by the prison disciplinary board . . . .” 19 Superintendent v. Hill, 472 U.S. 445, 455 (1985). 20 ii. Equal Protection 21 The Fourteenth Amendment’s Equal Protection Clause provides that no state shall “deny 22 to any person within its jurisdiction the equal protection of the laws.” This establishes the rule 23 that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living 24 Center, 473 U.S. 432, 439 (1985); see also Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). A plaintiff 25 may establish an equal protection claim by showing that a defendant intentionally discriminated 26 against the plaintiff based on the plaintiff’s membership in a protected class, Serrano, 345 F.3d at 27 1082, or that similarly situated individuals were intentionally treated differently without rational 28 relationship to a legitimate state purpose. City of Cleburne, 473 U.S. at 440. Neither prisoners 1 nor mentally ill persons qualify as a protected class. See Mayner v. Callahan, 873 F.2d 1300, 2 1302 (9th Cir. 1989). Thus, application of the rational basis test is appropriate. 3 B. Discussion 4 i. Due Process Claim Against Defendant Baker 5 Plaintiff argues that his due process rights were violated because he was not permitted to 6 call his psychiatrist as a witness at the RVR hearing. The RVR states that plaintiff was advised of 7 his right to request witnesses, that he did not indicate that he was requesting any witnesses prior 8 to the hearing, and that no testimony was obtained. ECF No. 111-4 at 42 (Def.’s Mot. Summ. J., 9 Ex. E). According to defendant Baker’s declaration and the RVR hearing notes, plaintiff waived 10 his rights to call witnesses during the disciplinary hearing. Id. at 33, 42, 75. 11 Plaintiff’s deposition transcript indicates that CDCR staff had previously informed 12 plaintiff that a witness would be unnecessary given the nature of the evidence. The record in this 13 regard shows: 14 Q: And what was the reason that they denied your witness – what was the reason they gave you? 15 A: [T]he senior hearing officer defendant Baker told me that, 16 you know, she was going to consider, you know, the mental health assessment . . . . I said then, you know, considering a 17 mental health assessment is not enough when the person is being disciplined for something that's a part of their mental 18 health issue. Just considering a mental health assessment is not enough. You got to get the psychiatrist in. She said she 19 don’t need them. She’s going to consider mental health assessment in that room. 20 21 Id. at 20 (Def.’s Mot. Summ. J., Ex. A). 22 Based on the apparent conflict between plaintiff’s version of the events and the record 23 submitted by defendant Baker, there may be some factual dispute as to whether plaintiff’s right to 24 call witnesses was denied. However, unless plaintiff demonstrates that “the factual dispute 25 [requires] a jury or judge to resolve the parties’ differing versions of the truth at trial,” the dispute 26 will not defeat Baker’s motion for summary judgment. T.W. Elec. Serv., 809 F.2d at 630. 27 In this case, plaintiff’s claim that he requested his psychiatric doctor as a witness and was 28 subsequently denied is directly contradicted by the record. Plaintiff has not provided any 1 evidence to indicate that he specifically made this request to defendant Baker either before or 2 during the disciplinary hearing. He only claims that defendant Baker had a duty to allow a 3 treating psychiatrist to supervise the disciplinary hearing regardless of whether or not plaintiff 4 made a request. Further, plaintiff fails to point to anything in the record suggesting there was no 5 “penological need” motivating the alleged denial of his witness request, nor does plaintiff claim 6 that the record showing his waiver of witnesses is faulty or falsified. 7 Even if the court were to assume that plaintiff’s unsupported version of the facts is true, he 8 has not provided evidence of what his psychiatrist would have testified to if called. He has not 9 submitted any declarations from the proposed witness, nor indicated what facts he or she could 10 have provided. In his complaint, plaintiff claims that the denial of his psychiatrist as a witness led 11 to a greater loss of good time credits and the loss of his work position, ECF No. 1 at 4, but 12 plaintiff never indicates what circumstances his witness could have testified to that would have 13 mitigated his penalty or exonerated him. Also, plaintiff claims that he was placed in the position 14 of yard worker specifically for the treatment of his mental illness but does not support this claim 15 with and evidence or testimony from his psychiatrist. Id. at 5. 16 Moreover, the evidence plaintiff cites to in the record suggests that his psychiatrist’s 17 testimony would not have affected the outcome. Plaintiff contends that defendant Baker 18 disregarded the clinical staff’s recommendations and cites to the RVR Mental Health Assessment. 19 The assessment simply shows that plaintiff’s clinician recommended against a SHU term or time 20 on C-status and that if such penalties were assessed, plaintiff should not be confined to his 21 quarters or restricted from coping devices. ECF No. 120 at 47 (Pl.’s Opp’n, Ex. H). Based on the 22 record, plaintiff did not receive these punishments, but rather defendant Baker referred to the 23 clinician’s assessment in electing to mitigate his penalties. 24 Even if the court drew all inferences in plaintiff’s favor, he has not demonstrated that 25 calling his psychiatrist as a witness would have produced relevant or non-duplicative testimony. 26 Accordingly, plaintiff has not raised a genuine issue of material fact in regard to his due process 27 claim. See Mack v. Lamarque, 338 F. App’x 636 (9th Cir. 2009) (finding that the district court 28 properly granted summary judgment on plaintiff’s due process claim arising from defendant’s 1 refusal to call witnesses at plaintiff’s disciplinary hearing because “plaintiff failed to raise a 2 genuine issue of material fact as to whether those witnesses would have any additional, relevant 3 evidence” (citing Wolff, 418 U.S. at 566)); Ramirez v. Galaza, No. 1:99-cv-6282 OWW DLB P, 4 2006 U.S. Dist. LEXIS 56065, at *20, 2006 WL 2320572, at *6 (E.D. Cal. Aug. 10, 2006) 5 (“While Plaintiff makes the conclusory allegation that the denial of witnesses violated his due 6 process rights, he does not proffer what the substance of their testimony would have been or how 7 it could have helped him . . . . Thus, plaintiff has failed to present any facts which would raise a 8 triable issue that he was denied the testimony of a witness who would offer relevant evidence in 9 his favor.”). 10 The court finds that there is no genuine dispute of material fact, and defendants are 11 entitled to summary judgment on plaintiff’s due process claim that his limited right to call 12 witnesses at his disciplinary hearing was denied. 13 ii. Equal Protection Claims 14 Plaintiff argues that both defendants Masterson and Baker violated his equal protection 15 rights by discriminating against him based on his mental health illness. 16 1. Defendant Masterson 17 Plaintiff claims that Masterson wrote him up in order to get him off the yard crew because 18 he had mental health conditions. ECF No. 1 at 5. Plaintiff argues that part of his duties was to 19 collect and sort trash and that he had never been told not to pick up trash before his contacts with 20 defendant Masterson. According to defendant Masterson, plaintiff’s duties did not include 21 retrieving trash, and he had warned plaintiff that he would issue an RVR if plaintiff continued to 22 pick up trash against orders not to do so. As indicated above, there may be a factual dispute as to 23 whether defendant Masterson told plaintiff he only hired higher functioning people on his yard 24 crew and stated that Masterson was “going to write [plaintiff] up and get [him] fired.” Id. at 4; 25 ECF No. 111-4 at 15, 18 (Def.’s Mot. Summ. J., Ex. A). 26 Assuming that plaintiff’s version of the events is correct, his equal protection claim 27 nonetheless fails because he has not shown that he was treated differently from other similarly 28 situated inmates nor that defendant Masterson’s conduct was not “rationally related to a 1 legitimate state interest.” Even if plaintiff’s duties included collecting trash, it is undisputed that 2 he was not allowed to enter the treatment center and that by doing so, he committed a security 3 breach. It is also undisputed that when defendant Masterson approached plaintiff, he admitted to 4 collecting trash and refused to follow Masterson’s orders to stop. Under Section 3005(b) of Title 5 15 of the California Code of Regulations, inmates must promptly obey orders from department 6 staff and other agency employees with authorized responsibility for the custody and supervision 7 of inmates and parolees. Section 3005(b) underlines the CDCR’s broader penological interest of 8 maintaining order and security within the institution. Thus, defendant Masterson’s issuance of an 9 RVR was rationally related to a legitimate state interest. In addition, plaintiff’s claim fails 10 because there is no evidence to suggest that other similarly situated inmates were treated 11 differently. For instance, he has not submitted testimonies from other inmates that demonstrate 12 that collecting trash in the treatment center was part of the duties of a yard worker or that others 13 who committed security breaches or who disobeyed orders from defendant Masterson were not 14 issued RVRs. 15 Furthermore, even if the court draws all inferences in plaintiff’s favor, he has not 16 demonstrated defendant Masterson’s personal participation in a constitutional violation. A claim 17 under Section 1983 will not survive summary judgment if the non-moving party presents no 18 evidence supporting a reasonable inference that there was an actual connection or link between 19 the defendant’s challenged conduct and the alleged deprivation of plaintiff’s constitutional or 20 statutory rights. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978); Rizzo v. 21 Goode, 423 U.S. 362, 370–71 (1976); Leer v. Murphy, 844 F.2d 628, 633–34 (9th Cir. 1988). “A 22 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 23 1983, if he does an affirmative act, participates in another’s affirmative acts or omits to perform 24 an act which he is legally required to do that causes the deprivation of which complaint is made.” 25 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (citation omitted). The requisite causal 26 connection can be established not only by some kind of direct personal participation in the 27 deprivation, but also by setting in motion a series of acts by others which the actor knew or 28 reasonably should have known would cause others to inflict the injury. Id. at 743–44. Sweeping 1 conclusory allegations will not defeat summary judgment. Id. at 634. 2 In this case, it is undisputed that defendant Masterson only recommended that plaintiff be 3 removed from his yard worker position. Plaintiff has not submitted any evidence demonstrating 4 Masterson’s involvement in the adjudication of his work position. The link between defendant 5 Masterson’s initial recommendation and the UCC’s decision to remove plaintiff is too attenuated 6 to support liability. The hearing officer could have found plaintiff not guilty or decided not to 7 refer him to the UCC for further assessment regarding his work status. The UCC itself could 8 have decided in plaintiff’s favor and reinstated him as a yard worker. There is no evidence to 9 suggest that defendant Masterson participated in or influenced the outcome of plaintiff’s hearings. 10 A mere recommendation does not constitute direct participation in a constitutional violation. 11 In sum, to the extent plaintiff claims defendant Masterson discriminated against him based 12 on his mental illness, plaintiff has not alleged facts demonstrating that he was intentionally 13 discriminated against on basis of his membership in a protected class, or that he was intentionally 14 treated differently that other similarly situated inmates without a rational basis. As a result, there 15 is no genuine dispute as to any material facts regarding plaintiff’s equal protection claim against 16 defendant Masterson, and summary judgment should be granted on this issue. 17 2. Defendant Baker 18 Plaintiff claims that defendant Baker treated him unfairly during his disciplinary hearing 19 because of his mental illness. ECF No. 1 at 4; ECF No. 120 at 7, 9. Plaintiff has failed to present 20 any evidence in support of the essential elements of his claim, namely that defendant Baker 21 discriminated against him by rejecting his request for witnesses without a rational basis or that 22 she treated him differently than other similarly situated inmates during his hearing. 23 To the extent that plaintiff argues that defendant Baker discriminated against him by 24 refusing to call his psychiatrist as a witness, the evidence before the court suggests no 25 discrimination occurred. Examination of the record shows that Baker concluded that plaintiff’s 26 statement was an admission of guilt, that witness testimony regarding his mental illness would 27 not rebut the fact that plaintiff disobeyed orders by CDCR staff, and that the testimony of 28 plaintiff’s psychiatrist would be redundant given the available clinician staff’s evaluation and 1 recommendations. It is undisputed that during the RVR hearing, plaintiff stated, “I was having 2 urges to go through the trash, and I tried to talk to my Clinician about ways to deal with this. He 3 came along and told me not to do it, and it was hard for me to change up my routine,” and that 4 defendant Baker understood this statement to be an admission of guilt. It is also undisputed that 5 defendant Baker referred to and based her assessment on the clinician’s report. Plaintiff presents 6 no evidence indicating that his proposed witness would testify to facts that would rebut a finding 7 that he disobeyed a CDCR officer’s orders, and he also fails to demonstrate how defendant Baker 8 ignored the clinician’s recommendations, as the record indicates that Baker elected to mitigate the 9 penalty based on the clinician report. Thus, even if the court assumes that plaintiff’s version of 10 the facts is true, the record supports a rational basis for Baker’s refusal of witnesses. Plaintiff 11 does not a raise a genuine dispute of material fact as to whether defendant Baker denied his 12 request for witnesses 13 To the extent that plaintiff claims that Baker’s recommendation of his removal from his 14 job assignment was discriminatory, this claim fails because he has not shown Baker’s personal 15 participation in the alleged constitutional violation. Though plaintiff contends that his mental 16 health deteriorated as a result of his removal from his job assignment, he has not submitted 17 evidence that shows that defendant Baker’s assessment of a fifteen-day credit loss and referral to 18 the UCC for work privilege review was discriminatory or unreasonable. In contrast, defendant 19 Baker argues that her assessment of credit loss corresponds with the credit loss range under 20 Section 3323(h) and that she mitigated possible credit loss due to the clinical staff’s 21 recommendations. Defendant Baker also argues that she did not restrict plaintiff’s access to his 22 family or group programming. Plaintiff does not dispute these allegations and fails to 23 demonstrate how Baker’s conduct was unreasonable or different from how other similarly 24 situated inmates were treated. 25 As with defendant Masterson, the causal connection between Baker’s referral of plaintiff 26 to the UCC for work status review and the final adjudication of his work status is too attenuated 27 to support liability. It is undisputed that defendant Baker did not participate in the adjudication of 28 plaintiff’s work status change and that Baker was not authorized to decide his work status change 1 as a senior hearing officer. Rather, the final decision to remove plaintiff from his work 2 assignment was made by another body and at another proceeding, where plaintiff had a separate 3 opportunity to plead his case and argue why his job should not be terminated. Moreover, insofar 4 that the UCC used Baker’s findings during the RVR hearing against plaintiff’s interests during 5 the work status hearing, such use does not demonstrate discrimination or unreasonableness on 6 defendant Baker’s part. 7 Lastly, plaintiff argues that defendant Baker discriminated against him by failing to call a 8 psychiatric doctor on her own initiative, regardless of whether he requested a witness. This 9 argument fails because defendant Baker has no duty to call any witnesses where such testimony is 10 superfluous or duplicative. 11 Therefore, defendant Baker is entitled to summary judgment as to plaintiff’s equal 12 protection claim. 13 Because the court finds no violation of plaintiff’s Fourteenth Amendment rights, it need 14 not address defendants’ argument that they are entitled to qualified immunity. 15 VII. Plain Language Summary of this Order for a Pro Se Litigant 16 The magistrate judge recommends that defendants’ motion for summary judgment be 17 granted. Your claim that defendant Baker violated your due process rights when she denied your 18 request for a witness fails because Baker showed that she had a rational basis for denying your 19 request and that she considered your mental health condition by using the clinician staff’s written 20 reports. Your equal protection claims against both defendants fail because you have not 21 submitted evidence showing that they discriminated against you by treating you differently from 22 other similarly situated inmates or that they did not have a rational basis for their conduct. 23 Accordingly, IT IS HEREBY RECOMMENDED that: 24 1. Defendant’s motion for summary judgment, ECF No. 111, be GRANTED; and 25 2. Judgment be entered for defendants. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 28 after being served with these findings and recommendations, any party may file written 6 LU UVM LOOMING NTN RU te PIO VO ee YY 40 VE LO 1 || objections with the court and serve a copy on all parties. Such a document should be captioned 2 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 3 || objections shall be served and filed within fourteen days after service of the objections. Due to 4 | exigencies in the court’s calendar, there will be no extensions of time granted. The parties 5 || are advised that failure to file objections within the specified time may waive the right to appeal 6 || the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 7 | DATE: August 25, 2020 ~ 8 Hthren— Llane ALLISON CLAIRE 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18