(PC) Peralta v. Swetalla ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 7 EASTERN DISTRICT OF CALIFORNIA 8 CION PERALTA, Case No. 1:18-cv-01023-DAD-EPG (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATIONS, 10 RECOMMENDING THAT DEFENDANTS’ 11 v. MOTION FOR SUMMARY JUDGMENT BE GRANTED AS TO PLAINTIFF’S DUE 12 J. SWETALLA, et al., PROCESS CLAIM AGAINST DEFENDANT CANO AND DENIED AS TO PLAINTIFF’S 13 Defendants. RETALIATION CLAIM AGAINST 14 DEFENDANT MACHADO AND HIS DUE PROCESS CLAIM AGAINST DEFENDANT 15 POWERS 16 (ECF No. 38) 17 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 18 ORDER GRANTING PLAINTIFF’S REQUEST 19 FOR SANCTIONS IN PART 20 (ECF No. 48) 21 I. INTRODUCTION 22 Cion Peralta (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 23 filed pursuant to 42 U.S.C. § 1983, which includes a state law claim. This case proceeds “on 24 plaintiff’s claims against defendant Swetalla for sexual assault and excessive force in violation 25 of the Eighth Amendment, retaliation in violation of the First Amendment, and negligence; 26 against defendant Machado for retaliation in violation of the First Amendment; and against 27 defendants Powers and Cano for denial of due process in violation of the Fourteenth 28 \\\ 1 Amendment.” (ECF No. 10, p. 2).1 2 On December 16, 2020, defendants Cano, Powers, and Machado (“Defendants”)2 filed a 3 motion for summary judgment. (ECF No. 38). On January 7, 2021, Plaintiff filed his 4 opposition. (ECF No. 41). On January 14, 2021, Defendants filed their reply. (ECF No. 42). 5 On April 28, 2021, Plaintiff filed a supplemental opposition and request for sanctions, along 6 with a supporting declaration. (ECF Nos. 48 & 49). On June 4, 2021, Plaintiff filed a second 7 supplemental opposition. (ECF No. 54).3 8 For the reasons that follow, the Court will recommend that Defendants’ motion for 9 summary judgment be granted as to Plaintiff’s Fourteenth Amendment due process claim 10 against defendant Cano and denied as to Plaintiff’s First Amendment retaliation claim against 11 defendant Machado and Plaintiff’s Fourteenth Amendment due process claim against defendant 12 Powers. 13 The Court will also grant Plaintiff’s request for sanctions in part. 14 II. SUMMARY OF CLAIMS 15 As described above, this case is proceeding on Plaintiff’s claims against defendant 16 Swetalla for sexual assault and excessive force in violation of the Eighth Amendment. 17 Plaintiff’s sexual assault claim is proceeding “based on allegations that Swetalla shoved an 18 object between plaintiff’s butt cheeks and pushed it to Plaintiff’s anus.” (ECF No. 9, p. 6; ECF 19 No. 10, p. 2). Plaintiff’s excessive force claim is proceeding based on allegations that 20 “Swetalla took Plaintiff to the gymnasium ‘under the guise of an unclothed body search,’ hit 21 Plaintiff in the back of the head about five time[s], and shoved an object between Plaintiff’s 22 butt cheeks and anus.... Swetalla engaged in this conduct only because Plaintiff was reaching 23 outside the prison to seek help, and [] Plaintiff still has bumps on his head from this incident.” 24 (ECF No. 9, p. 7; ECF No. 10, p. 2). 25 Defendant Swetalla has not filed for summary judgment, and the claims against him are 26 27 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 Defendant Swetella did not move for summary judgment. 28 3 As there were issues regarding the production of discovery, the Court allowed Plaintiff to file both 1 not addressed in this order. 2 As to the claims at issue in Defendants’ motion, Plaintiff’s First Amendment retaliation 3 claim against defendant Machado is proceeding based on allegations that “Machado threatened 4 Plaintiff by stating to Plaintiff, ‘You won’t wake up once we get you to administrative 5 segregation,’ in response to finding out that Plaintiff had complained about the sexual and 6 physical assault by Swetalla.” (ECF No. 9, p. 10; ECF No. 10, p. 2).4 7 Plaintiff’s Fourteenth Amendment due process claim again defendants Powers and 8 Cano is proceeding based on allegations that 9 Plaintiff was placed in Ad-Seg [Administrative Segregation] because of the sexual assault of Plaintiff by Defendant Swetalla while Plaintiff was housed at 10 CCI, and that Plaintiff was housed in Ad-Seg for almost three months upon his transfer to CSP-LAC even though the assault had been perpetrated by a 11 corrections officer, and not by fellow inmates, and had occurred at a different 12 prison…. Plaintiff was in no danger and that he should have been housed in the general population when he was transferred to CSP-LAC, or at least in non- 13 disciplinary segregation, rather than in Ad-Seg…. [T]he lack of danger to him is further demonstrated by his eventual transfer to general population. 14 (ECF No. 9, p. 12; ECF No. 10, p. 2). 15 III. SUMMARY JUDGMENT 16 a. Defendants’ Motion (ECF No. 38) 17 Defendants filed a motion for summary judgment on December 16, 2020. (ECF No. 18 38). 19 “Defendants Machado, Cano, and Powers move for summary judgment on the grounds 20 that: (1) Plaintiff’s retaliation claim against Defendant Machado fails because he cannot show 21 that Machado subjected him to an adverse action, and verbal threats are insufficient to state a 22 constitutional claim; (2) Plaintiff received all of the process he was due as he when he was 23 placed and retained in administrative segregation at LAC for non-disciplinary reasons; (3) 24 Defendant Cano is not liable to Plaintiff for denying Plaintiff’s grievance; and (4) Defendants 25 are entitled to qualified immunity.” (ECF No. 38-2, p. 2). 26 27 4 Plaintiff appears to believe that he has a claim proceeding against defendant Machado based solely on 28 defendant Macahdo’s failure to report crimes against Plaintiff to his supervisor. However, this action is not 1 Defendants argue that “Plaintiff cannot demonstrate a nexus between his reporting of 2 the alleged assault by Defendant Swetalla, and the alleged retaliation by Defendant Machado. 3 Although Plaintiff claims that Machado refused to conduct an investigation into the claims of 4 physical and sexual assault, the undisputed evidence establishes that the PREA investigation 5 was conducted by Officer Nicholson. Plaintiff claimed that during a strip search, an 6 unidentified officer had touched his buttock, but Plaintiff denied penetration of his anus or 7 other inappropriate touching. When asked to identify the officer, Plaintiff would not say any 8 more.” (Id. at 6) (citations omitted). 9 “To the extent that Plaintiff claims that Machado threatened him because Plaintiff made 10 allegations of sexual assault, Plaintiff fails to establish when or where the incident took place. 11 Machado began to prepare an administrative segregation placement notice on November 4, 12 2015, but the undisputed evidence shows that Plaintiff remained in the Outpatient Housing Unit 13 (OHU), where he was placed on suicide watch and monitored by medical staff. The following 14 day, Plaintiff was transferred to a crisis bed at another institution. Plaintiff was not placed into 15 administrative segregation until he arrived at LAC on November 16, 2015. And[,] Defendant 16 Machado was not responsible for the decision to place Plaintiff into administrative segregation 17 at LAC; rather, this decision was made by Lt. Legler.” (Id.) (citations omitted). 18 “To the extent Plaintiff is claiming that he was threatened or called names by Defendant 19 Machado, such an allegation fails to state a claim for relief. ‘Verbal harassment or abuse . . . is 20 not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.’ Oltarzewski v. 21 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). See Martin v. Sargent, 780 F.2d 1334, 1338 (8th 22 Cir. 1985) (name calling and verbal threats are not constitutional violations cognizable under 23 section 1983); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.) (1983) (mere threatening 24 language and gestures of a custodial officer do not, even if true, amount to constitutional 25 violations). Here, there is no adverse action that can be attributed to Defendant Machado as a 26 result of Plaintiff reporting the alleged assault by Defendant Swetalla. Accordingly, Defendant 27 Machado is entitled to summary judgment.” (ECF No. 38-2, pgs. 6-7) (alteration in original). 28 As to Plaintiff’s due process claim, Defendants argue that Plaintiff received all of the 1 process that he was due. (Id. at 10). “Following Plaintiff’s report that he was physically and 2 sexually assaulted by an unnamed and unknown officer, and that he feared for his safety, 3 Plaintiff was transferred first to a mental health crisis bed at CMC and then to LAC while an 4 investigation into his allegations could be completed. Plaintiff remained in administrative 5 segregation at LAC throughout the duration of the investigation into Plaintiff’s claims of staff 6 misconduct.” (Id.) (citations omitted). 7 “When Plaintiff arrived at LAC, he received an administrative segregation notice 8 indicating that Plaintiff had been sent to LAC via special transport, but had not been endorsed 9 for transfer to that institution. The notice also mentioned the investigation at CCI into 10 Plaintiff’s allegations of staff misconduct. The notice advised Plaintiff that he would remain in 11 administrative segregation pending the completion of the investigation at CCI and his transfer 12 to his endorsed institution.” (Id. at 11) (citations omitted). 13 “Plaintiff first appeared before the Classification Committee at LAC on November 25, 14 2015. The Committee noted that Plaintiff’s placement in administrative segregation was 15 ordered by Lieutenant Legler, and was reviewed by Captain Moore. Officials at LAC had not 16 received documentation on the investigation, and Plaintiff was advised that he would be 17 retained in administrative segregation at LAC until the Investigative Services Unit at CCI 18 provided the necessary documentation. Plaintiff advised the Committee that he agreed with the 19 decision.” (Id.) (citations omitted). 20 “Plaintiff next appeared before the Classification Committee at LAC on January 21, 21 2016, and was told by the Committee that the investigation at CCI was completed, and Plaintiff 22 would be released to SNY. Plaintiff was released from administrative segregation on February 23 11, 2016.” (Id.) (citations omitted). 24 “Based on the holdings of Toussant I and Hewitt, Plaintiff received all of the process he 25 was due. Plaintiff was advised of the reasons for his placement into administrative segregation, 26 and he appeared before the Committee two times between his placement on November 16, 27 2015, and his release to SNY on February 11, 2016.” (Id.) (citation omitted). 28 Defendants also argue that “the undisputed evidence establishes that Defendant Cano 1 was not responsible for placing Plaintiff into administrative segregation, but rather, Defendant 2 Cano denied Plaintiff’s grievance regarding Plaintiff’s placement into administrative 3 segregation at the second level of review because of the ongoing investigation into Plaintiff’s 4 allegations.” (Id. at 11-12) (citation omitted). “Defendant Cano did not place Plaintiff into 5 administrative segregation, nor did he retain Plaintiff in administrative segregation beyond the 6 time necessary to complete the investigation into Plaintiff’s allegations.” (Id. at 12) (citation 7 omitted). 8 Finally, Defendants argue that they are entitled to qualified immunity. 9 “Plaintiff cannot demonstrate that Defendants Powers and Cano violated his right to due 10 process by placing or retaining Plaintiff into administrative segregation during an investigation, 11 or retaining him there until Plaintiff could be properly transferred to an endorsed facility.” (Id. 12 at 13-14). “Moreover, Defendants could have reasonably believed that their actions were legal. 13 The policies of CDCR allow for such placement and retention in administrative segregation. 14 See Cal. Code of Regs., tit. 15, §3335(a). Prison officials implementing policies are entitled to 15 qualified immunity if, in the light of the clearly established law at the time, a reasonable official 16 could have believed that the conduct was lawful.” (Id. at 14) (citation omitted). 17 Additionally, “[t]o the extent Plaintiff is suing Defendant Powers for failing to grant 18 Plaintiff’s grievance and release Plaintiff from administrative segregation, the denial of a 19 grievance fails to state a constitutional violation. Moreover, as Defendant Cano explained in 20 the second level response, it was Cano’s belief that based on CDCR policies and procedures, 21 Plaintiff was properly retained in administrative segregation until the investigation into 22 Plaintiff’s allegations of staff misconduct was concluded. However, Cano arranged [for] 23 another Committee hearing to determine whether Plaintiff should continue to be housed in 24 administrative segregation. For these reasons as well, Defendant Cano is entitled to qualified 25 immunity.” (Id. at 14) (citations omitted). 26 In support of their motion, Defendants submit records regarding Plaintiff’s bed 27 assignments, memoranda regarding the staff misconduct alleged by Plaintiff, Administrative 28 Segregation Unit Placement Notices, Classification Reviews for Plaintiff, a copy of a grievance 1 submitted by Plaintiff, a copy of the response to Plaintiff’s grievance, and medical records.5 2 b. Plaintiff’s Opposition (ECF No. 41) 3 Plaintiff argues that defendants Cano and Powers violated his Fourteenth Amendment 4 rights. (ECF No. 41, p. 2). Plaintiff was supposed to be put in non-disciplinary segregation, 5 but he was not classified as such. (Id.). This created untold suffering and an atypical hardship 6 on him. (Id.). Plaintiff was shackled by his hands and feet to shower, attend group, or to go 7 anywhere within the prison. (Id.). Under prison regulations, Plaintiff was required to be taken 8 out of his oppressive environment within seventy-two hours. (Id.). However, defendants Cano 9 and Powers failed to follow the law. Additionally, “[n]either defendant afforded the programs 10 and privileges he was entitled to, they did not document these facts or why they were being 11 denied, and they did not state why these things were being restricted or the duration of these 12 CCR Title 15 rights.” (Id. at 12). Moreover, “[u]nder their own laws, the defendants were 13 required to transfer the plaintiff to an appropriate institution within 72 hours, instead, they kept 14 the plaintiff in a needlessly restrictive and oppressive housing environment without just cause. 15 (CCR Title 15 § 3335(A).” (Id.). 16 For almost three months, “[r]ather than be[ing] free to attend groups, recreation, 17 showers, or walk or move without being shackled by his hands and feet, the plaintiff had to 18 suffer extreme measures reserved for those individuals committing crimes or rules violations.” 19 (Id. at 15). 20 Plaintiff also alleges that he never agreed with Defendants retaining him in Ad-Seg, and 21 this is corroborated by the grievance he filed. (Id. at 13). 22 Plaintiff also alleges that defendants Cano and Powers had authority to place Plaintiff 23 into Ad-Seg. (Id. at 14). 24 Plaintiff also alleges that he was never classified as Non Disciplinary Segregation 25 (“NDS”), even though he should have been. (Id.). Defendant Powers stated that she did not 26 have enough information “to make the plaintiff NDS.” (Id. at 16). “The label of Non 27 28 1 Disciplinary Segregation lets the staff as well as the institution know that the person is entitled 2 to less restrictions than other prisoners because he is not there for breaking the rules. This 3 classification, that neither of these defendants were then concerned about[,] was their 4 responsibility.” (Id. at 14). 5 Plaintiff also alleges that defendant Cano had the authority to release Plaintiff to the 6 general population Special Needs Yard. (Id. at 14). 7 Plaintiff also argues that both defendant Powers and defendant Cano had personal 8 knowledge and personal involvement “in plaintiff’s case. Both of these individuals attended 9 the ICC (Inmate Classification Committee) of the plaintiff….” (Id. at 17). 10 Plaintiff also alleges that neither defendant allowed him to present a written or oral 11 statement as to why he should not be kept in Ad-Seg. (Id.). “Most importantly, Cano was at 12 plaintiff’s committee in January, and he did not allow the plaintiff to submit documents.” (Id.). 13 Finally, Plaintiff argues that defendant Powers and defendant Cano are not entitled to 14 qualified immunity. (Id. at 18). “[B]oth of these defendants have been doing their jobs for 15 many years, and each defendant is well aware of the rules, rights, and regulations it takes to 16 legally do their duties while working under color of authority. The plaintiff’s rights were well 17 established at the time of their actions, and even after plaintiff filed a formal complaint 18 objecting to his situation, neither defendant did as much as look into why the plaintiff was 19 illegally retained in a situation that required him to be shackeled [sic] hand and feet [sic] to do 20 as much as sit in a chair.” (Id.). 21 As to defendant Machado, on November 4, 2015, Plaintiff alleges that he spoke to 22 defendant Machado about being physically and sexually assaulted by defendant Swetalla. (Id. 23 at 8). “Once the plaintiff began telling defendant Machado his staff [were] abusive and corrupt, 24 he became enraged and threatened the plaintiff with death for reporting the crimes of his 25 subordinates. This was done for no other reason than to chill the First Amendment rights of the 26 plaintiff.” (Id.). 27 Plaintiff alleges that none of the statements within Defendants’ “undisputed facts” are 28 true. (Id. at 12). 1 Plaintiff’s opposition and his concise statement of disputed facts are sworn to under 2 penalty of perjury. Additionally, in support of his opposition, Plaintiff submits, among other 3 things, discovery responses from Defendants, Administrative Segregation Unit Placement 4 Notices, memoranda regarding Plaintiff’s allegations of sexual assault by staff, a copy of a 5 grievance submitted by Plaintiff, and a copy of the response to Plaintiff’s grievance. 6 c. Defendant’s Reply (ECF No. 42) 7 Defendants reiterate arguments that they made in their motion for summary judgment. 8 Defendants also argue that, “[i]n his opposition, Plaintiff does not set forth any of 9 Defendants’ thirty-seven undisputed facts, nor does he dispute any of those facts. Instead, 10 Plaintiff re-asserts the claims set forth in the Complaint, and relies on argument, inadmissible 11 assertions that lack foundation, and unsupported conclusions of law in an attempt to create a 12 dispute regarding his claims for retaliation and denial of due process. In fact, Plaintiff offers no 13 opposition to Defendants’ motion for summary judgment, instead, he points the Court to 14 Plaintiff’s statement of undisputed facts. But, Plaintiff’s statement of facts is made up of seven 15 ‘facts’ that are nothing more tha[n] argument.” (ECF No. 42, p. 2). 16 “Plaintiff has failed to oppose any of Defendants’ undisputed facts, or provide any 17 evidence to support his claims against the Defendants. Thus, Plaintiff has failed to create a 18 genuine dispute of material fact with regard to his retaliation or due process claims, and 19 therefore, the Court should grant Defendants’ motion for summary judgment.” (Id. at 2-3). 20 d. Plaintiff’s First Supplemental Opposition and Supporting Declaration (ECF Nos. 21 48 & 49) 22 In Plaintiff’s first supplemental opposition, Plaintiff refers to defendant Machado’s 23 supplemental discovery responses. Plaintiff argues that defendant Machado intentionally 24 misled the Court again. (ECF No. 48, p. 2). Plaintiff also argues that defendant Machado 25 failed “to do his legal and professional duty to report the crimes against plaintiff to his 26 supervisors.” (Id. at 4). 27 Plaintiff also reiterates arguments he made in his opposition. 28 Attached to Plaintiff’s declaration is “the alleged investigation of M. Nicholson.” (ECF 1 No. 49, p. 1). Plaintiff alleges that Nicholson lied in the report. (Id. at 1-2). Plaintiff also 2 alleges that defendant Nicholson never spoke to defendant Swetalla or anyone else regarding 3 the physical or sexual assault. (Id. at 3). 4 Plaintiff alleges that defendants Cano and Powers both claim they were waiting for an 5 investigation to be completed before releasing Plaintiff from Ad-Seg, but “the trouble with this 6 is, there was no ‘investigation.’” (Id.). “It is shown by documents that Nicholson concluded 7 his incomplete delve into this matter on November 5, 2015. Page 4 of 4 states: ‘This concludes 8 ISUs involvement in this matter.’ Certainly the high ranking Chief Deputy Warden and 9 Lieutenant (CCII) doing the committee for plaintiff knew this much.” (Id.). 10 “This goes to [sic] for the investigation of Lieutenant Parriott that was concluded on 11 November 22, 2015.” (Id.). “[N]either of these individuals bothered to interview the plaintiff, 12 the defendants, or anyone else even remotely related to these incidents.” (Id.). 13 e. Plaintiff’s Second Supplemental Opposition (ECF No. 54) 14 In his second supplemental opposition, Plaintiff reiterates arguments made in his 15 previous filings. 16 Plaintiff also cites to California Code of Regulations, Title 15, § 3335(a)(1)(D)(1), 17 which states: “If the placement in NDS is related to being the victim of a PREA incident, the 18 inmate will be afforded all programs, privileges, and education in accordance with section 3044 19 and subsection 3190(b)(5)(C), of Title 15 of the CCR. If these are restricted, assigned staff 20 shall document: 1) the opportunities that have been limited; 2) the duration of the limitation; 21 and 3) the reasons for such limitations.” Plaintiff also cites to, § 3335(a)(1)(D)(2), which 22 states: “The facility shall assign such inmates to NDS only until an alternative means of 23 separation from likely abusers can be arranged, and such an assignment shall not ordinarily 24 exceed a period of 30 days. If the period of segregation exceeds 30 days, reasoning shall be 25 documented on an automated Classification Committee Chrono (05/19), which is incorporated 26 by reference.”6 27 28 6 This section was amended after the incidents alleged in the complaint occurred. However, the 1 Plaintiff alleges that defendant Powers was aware of these sections. (ECF No. 54, p. 3). 2 “It is well documented that neither of the so-called ISU investigations at CCI went any 3 further than a cursory review of plaintiff’s complaints of sexual assault. Each ‘investigation’ 4 was completed well ahead of defendant Powers’ handling of plaintiff’s ad-seg placement. Yet 5 defendant Powers accepted no verbal or documentary evidence or defense to plaintiff being 6 placed in the ad-seg unit at CSP-LAC. The appeal states all of these things.” (Id. at 4).7 7 f. Discussion 8 i. Legal Standards for Summary Judgment 9 Summary judgment in favor of a party is appropriate when there “is no genuine dispute 10 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 11 P. 56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there 12 is a genuine dispute about material facts, summary judgment will not be granted.”). A party 13 asserting that a fact cannot be disputed must support the assertion by “citing to particular parts 14 of materials in the record, including depositions, documents, electronically stored information, 15 affidavits or declarations, stipulations (including those made for purposes of the motion only), 16 admissions, interrogatory answers, or other materials, or showing that the materials cited do not 17 establish the absence or presence of a genuine dispute, or that an adverse party cannot produce 18 admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 19 A party moving for summary judgment “bears the initial responsibility of informing the 20 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 21 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 22 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 23 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party 24 moves for summary judgment on the basis that a material fact lacks any proof, the Court must 25 26 7 In his oppositions, Plaintiff makes numerous allegations and arguments that are not relevant to the 27 resolution of this motion for summary judgment, including arguments regarding why summary judgment should be denied as to defendant Swetalla (who did not move for summary judgment). Plaintiff also attaches irrelevant 28 evidence. The Court will not address irrelevant factual allegations, arguments, or evidence. The Court also notes 1 determine whether a fair-minded jury could reasonably find for the non-moving party. 2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla 3 of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on 4 which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof 5 concerning an essential element of the nonmoving party’s case necessarily renders all other 6 facts immaterial.” Celotex, 477 U.S. at 322. Additionally, “[a] summary judgment motion 7 cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” 8 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 9 In reviewing the evidence at the summary judgment stage, the Court “must draw all 10 reasonable inferences in the light most favorable to the nonmoving party.” Comite de 11 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It 12 need only draw inferences, however, where there is “evidence in the record … from which a 13 reasonable inference … may be drawn…”; the court need not entertain inferences that are 14 unsupported by fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, “[t]he 15 evidence of the non-movant is to be believed….” Anderson, 477 U.S. at 255. 16 ii. Failure to Properly Oppose Motion 17 In their reply, Defendants argue that Plaintiff failed to properly oppose their motion. 18 Defendants are correct that Plaintiff did not strictly comply with Federal Rule of Civil 19 Procedure 56 or this Court’s local rules. However, while “an ordinary pro se litigant, like other 20 litigants, must comply strictly with the summary judgment rules,” “[p]ro se inmates are … 21 expressly exempted from this rule….” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). 22 The Ninth Circuit has “held consistently that courts should construe liberally motion papers and 23 pleadings filed by pro se inmates and should avoid applying summary judgment rules strictly.” 24 (Id.). 25 Accordingly, even though Plaintiff failed to strictly comply with Federal Rule of Civil 26 Procedure 56 and this Court’s local rules, the Court will still consider Plaintiff’s oppositions 27 \\\ 28 \\\ 1 and the evidence he submitted.8 2 iii. Plaintiff’s Retaliation Claim Against Defendant Machado 3 1. Legal Standards 4 There are five basic elements to a First Amendment retaliation claim: “(1) An assertion 5 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s 6 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 7 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 8 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 9 2. Analysis 10 Defendants move for summary judgment on three grounds. First, Defendants argue that 11 Plaintiff cannot demonstrate a nexus between his reporting of the alleged assault by defendant 12 Swetalla and the alleged retaliation by defendant Machado. Second, Defendants argue that 13 Plaintiff cannot establish when or where the incident took place. Finally, Defendants argue that 14 there was no adverse action because verbal harassment or abuse is insufficient to state a 15 constitutional deprivation under § 1983. 16 All three arguments fail. Plaintiff states, under penalty of perjury, that on November 4, 17 2015, “[u]pon being interrogated at the C yard program while in a holding cage,” he spoke to 18 defendant Machado about being physically and sexually assaulted by defendant Swetalla. 19 (ECF No. 43, p. at 8). “Once the plaintiff began telling defendant Machado his staff was 20 abusive and corrupt, he became enraged and threatened the plaintiff with death for reporting the 21 crimes of his subordinates. This was done for no other reason than to chill the First 22 Amendment rights of the plaintiff.” (Id.). Thus, Plaintiff submitted evidence that the adverse 23 action occurred immediately after, and because, he complained about staff misconduct. 24 Accordingly, Plaintiff sufficiently linked the adverse action to his complaints about staff 25 misconduct. 26 27 8 The Court notes that, to the extent the Court necessarily relied on evidence that has been objected to, the 28 Court relied only on evidence it considered to be admissible. Generally, it is not the practice of the Court to rule 1 Additionally, as described above, Plaintiff states, under penalty of perjury, where the 2 incident occurred (at the C yard program), and when (November 4, 2015). Accordingly, 3 Plaintiff submitted evidence regarding when and where the incident took place. 4 Finally, as to Defendants’ third argument, Defendants appear to misunderstand the 5 relevant law. While Defendants are correct that, in the Eighth Amendment context, verbal 6 harassment alone is generally insufficient to state a claim, Plaintiff is proceeding on a First 7 Amendment retaliation claim, not an Eighth Amendment harassment claim. And, in the 8 retaliation context, “the mere threat of harm can be an adverse action, regardless of whether it 9 is carried out because the threat itself can have a chilling effect.” Brodheim v. Cry, 584 F.3d 10 1262, 1270 (9th Cir. 2009). 11 Accordingly, Defendants’ motion should be denied as to Plaintiff’s First Amendment 12 retaliation claim against defendant Machado. 13 iv. Plaintiff’s Due Process Claim Against Defendants Cano and Powers 14 1. Legal Standards 15 The Due Process Clause of the Fourteenth Amendment protects prisoners from being 16 deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 17 539, 556 (1974). The procedural guarantees of the Fifth and Fourteenth Amendments’ Due 18 Process Clauses apply only when a constitutionally protected liberty or property interest is at 19 stake. Ingraham v. Wright, 430 U.S. 651, 672-73 (1977). 20 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full 21 panoply of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. at 556. 22 Wolff established five constitutionally mandated procedural requirements for disciplinary 23 proceedings. First, “written notice of the charges must be given to the disciplinary-action 24 defendant in order to inform him of the charges and to enable him to marshal the facts and 25 prepare a defense.” Id. at 564. Second, “at least a brief period of time after the notice, no less 26 than 24 hours, should be allowed to the inmate to prepare for the appearance before the 27 [disciplinary committee].” Id. Third, “there must be a ‘written statement by the factfinders as 28 to the evidence relied on and reasons’ for the disciplinary action.” Id. (quoting Morrissey v. 1 Brewer, 408 U.S. 471, 489 (1972)). Fourth, “the inmate facing disciplinary proceedings should 2 be allowed to call witnesses and present documentary evidence in his defense when permitting 3 him to do so will not be unduly hazardous to institutional safety or correctional goals.” Id. at 4 566. And fifth, “[w]here an illiterate inmate is involved [or] the complexity of the issue makes 5 it unlikely that the inmate will be able to collect and present the evidence necessary for an 6 adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or … 7 to have adequate substitute aid … from the staff or from a[n] … inmate designated by the 8 staff.” Id. at 570. 9 However, “when prison officials initially determine whether a prisoner is to be 10 segregated for administrative reasons due process only requires the following procedures: 11 Prison officials must hold an informal nonadversary hearing within a reasonable time after the 12 prisoner is segregated. The prison officials must inform the prisoner of the charges against the 13 prisoner or their reasons for considering segregation. Prison officials must allow the prisoner 14 to present his views.” Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986) 15 (footnote omitted), abrogated on other grounds, Sandin v. Conner, 515 U.S. 472 (1995). 16 Supervisory personnel are not liable under section 1983 for the actions of their 17 employees under a theory of respondeat superior and, therefore, when a named defendant 18 holds a supervisory position, the causal link between the supervisory defendant and the claimed 19 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. 20 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 21 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 22 a plaintiff must allege some facts that would support a claim that the supervisory defendants 23 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 24 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 25 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] 26 a policy so deficient that the policy itself is a repudiation of constitutional rights and is the 27 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 28 quotation marks omitted). 1 For instance, a supervisor may be liable for his or her “own culpable action or inaction 2 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 3 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 4 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 5 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 6 “The doctrine of qualified immunity protects government officials ‘from liability for 7 civil damages insofar as their conduct does not violate clearly established statutory or 8 constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 9 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In 10 determining whether a defendant is entitled to qualified immunity, the Court must decide (1) 11 whether the facts shown by Plaintiff make out a violation of a constitutional right; and (2) 12 whether that right was clearly established at the time of the officer's alleged misconduct. 13 Pearson, 555 U.S. at 232. To be clearly established, a right must be sufficiently clear “that 14 every ‘reasonable official would [have understood] that what he is doing violates that right.’” 15 Reichle v. Howards, 132 S. Ct. 2088, 2090 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 16 741 (2011)) (alteration in original). This immunity protects “all but the plainly incompetent or 17 those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 18 2. Analysis 19 In their motion, Defendants claim that the more limited Toussaint procedures apply 20 here, and that defendants Cano and Powers complied with these procedures. 21 According to Defendants, Plaintiff was placed and retained in Ad-Seg for administrative 22 reasons, not because he was being disciplined. “Under the California Code of Regulations, title 23 15, section 3335(a), ‘[w]hen an inmate’s presence in an institution’s general inmate population 24 presents an immediate threat to the safety of the inmate or others, endangers institution security 25 or jeopardizes the integrity of an investigation of an allege[d] serious misconduct or criminal 26 activity, the inmate shall be immediately removed from general population and placed in 27 administrative segregation.’” (ECF No. 38-2, pgs. 10-11) (quoting Cal. Code regs, tit. 15 28 \\\ 1 §3335(a)) (alteration in original).9 2 Moreover, Defendants allege that Plaintiff was placed into administrative segregation 3 not to discipline him, but “pending the completion of the investigation at CCI and his transfer 4 to his endorsed institution.” (Id. at 11). In support of their position, Defendants submit an 5 administrative segregation notice, which states that Plaintiff was housed in Ad-Seg because he 6 was “not endorsed to LAC. In addition on 11/4/2015 [Plaintiff] [was] originally placed in 7 ADSEG at (CCI) due to allegations [Plaintiff] made of staff sexual misconduct towards 8 [Plaintiff] which necessitated an investigation of said allegations. Due to the aforementioned, 9 [Plaintiff] will be housed in (LAC) AD-SEG pending completion of the investigation and 10 transfer to [Plaintiff’s] endorsed institution. [Plaintiff’s] placement in AD-Seg is a NON 11 adverse placement.” (ECF No. 38-3, p. 24). Additionally, the November 25, 2015 12 Classification Committee and the January 28, 201610 Classification Committee both stated that 13 Plaintiff was retained in Ad Seg, at least in part, because an investigation was ongoing. (ECF 14 No. 38-3, p. 31; ECF No. 38-3, p. 36). 15 According to Plaintiff, however, he was actually being disciplined, and is thus entitled 16 to the more stringent Wolff procedures. Plaintiff has submitted some evidence in support of 17 this contention. According to Plaintiff, no real investigation took place. To support this 18 assertion, Plaintiff submits a discovery response from defendant Swetalla, who admits that 19 defendant Swetalla was never interviewed. (ECF No. 41, p. 109). Plaintiff also alleges that the 20 investigations actually ended in November of 2015. (ECF No. 49, p. 3). In support of this 21 assertion, Plaintiff cites to the dates on two investigative reports. (ECF No. 49, p. 3). 22 Additionally, Plaintiff has presented evidence that the procedures for non-disciplinary 23 administrative segregation, as set forth in the California Code of Regulations, were not 24 25 9 Plaintiff argues that Defendants should not be allowed to rely on Title 15 because defendant Cano stated 26 that Title 15 does not exist in response to a discovery request. (ECF No. 41, p. 12). However, defendant Cano did not say that Title 15 does not exist. He stated that § 3335(a)(D)(1)(2)(A) does not exist (ECF No. 41, pgs. 84-85), 27 and he appears to be correct. 10 In their motion, Defendants refer to the hearing as occurring on January 21, 2016. However, the 28 document they attach to support their assertion states that the hearing was held on January 28, 2016. (ECF No. 38- 1 followed. According to California Code of Regulations, Title 15, § 3335(a)(1)(d)(1), “[i]f the 2 placement in NDS is related to being the victim of a PREA incident, the inmate will be 3 afforded all programs, privileges, and education in accordance with section 3044 and 4 subsection 3190(b)(5)(C), of Title 15 of the CCR. If these are restricted, assigned staff shall 5 document: 1) the opportunities that have been limited; 2) the duration of the limitation; and 3) 6 the reasons for such limitations.” According to § 3335(a)(1)(d)(2), “[t]he facility shall assign 7 such inmates to NDS only until an alternative means of separation from likely abusers can be 8 arranged, and such an assignment shall not ordinarily exceed a period of 30 days. If the period 9 of segregation exceeds 30 days, reasoning shall be documented on an automated Classification 10 Committee Chrono (05/19), which is incorporated by reference.” 11 While Plaintiff challenges how much of an investigation actually occurred, it is 12 undisputed that the investigation(s) involved his allegations of sexual assault. According to 13 Plaintiff’s sworn statement, despite the existence of the above regulations, “[n]either defendant 14 afforded the programs and privileges he was entitled to, they did not document these facts or 15 why they were being denied, and they did not state why these things were being restricted or 16 the duration of these CCR Title 15 rights.” (ECF No. 41, p. 12). Additionally, it is undisputed 17 that Plaintiff was held in Ad-Seg for more than thirty days, and there is no evidence that the 18 procedures laid out in § 3335(a)(1)(d)(2) were followed. 19 Moreover, at least one defendant admitted that Plaintiff was not given NDS status. (See 20 ECF No. 41, p. 93 (in response to Interrogatory 3, which asked why Plaintiff was not put on 21 NDS status, defendant Powers stated that “Plaintiff was not placed on NDS as the investigation 22 at CCI was not closed before Plaintiff’s initial appearance before the Committee, and the 23 Committee did not have enough information to grant NDS”); id. at 100 (in response to Request 24 for Admission 6, in which Plaintiff asked defendant Powers to “Admit that you did not place 25 plaintiff Peralta on non-disciplinary segregation (NDS) at any time between the dates of 26 11/16/15 and 2/10/16 while he was housed in administrative segregation at CSP-LAC,” 27 defendant Powers responded “Admitted, as the Committee did not have the necessary 28 documentation during Plaintiff’s initial classification hearing.”)). However, the relevant 1 regulation states that “Non Disciplinary Segregation (NDS) means temporary segregated 2 housing placement for administrative reasons to include but are not limited to … 3 Investigation[s] related to being the victim of a Prison Rape Elimination Act (PREA) incident.” 4 § 3335(a)(1)(D). 5 Finally, as discussed in more detail below, Plaintiff has presented evidence that he was 6 not allowed to present his views at the November 25, 2015 Classification Committee, and the 7 Committee erroneously documented that Plaintiff agreed with his placement. 8 Based on the evidence, the Court recommends the motion be denied as to Plaintiff’s 9 claim against defendant Powers and granted as to Plaintiff’s claim against defendant Cano. 10 As to defendant Powers, it is undisputed that she was on the November 25, 2015 11 Classification Committee. (ECF No. 38-3). Defendants do not even attempt to argue that the 12 Wolff procedures were provided at this hearing. Thus, if the Wolff procedures apply, 13 Defendants’ motion should be denied as to defendant Powers. 14 Defendants do argue that the Toussaint procedures were provided, but the Court finds 15 that there is a genuine dispute of material fact regarding whether Plaintiff was given an 16 opportunity to present his views, as required even under the more limited Toussaint procedures. 17 The only evidence Defendants submit in support of their assertion that Plaintiff was allowed to 18 present his views is the Classification Committee’s report, which states that Plaintiff 19 “acknowledged his understanding and agreement with committee’s decision.” (ECF No. 38-3, 20 p. 31). Plaintiff counters this evidence with his own sworn statement, in which he alleges that 21 he never agreed with being retained in Ad-Seg and that he was not allowed to present his views 22 at the hearing. (ECF No. 41, p. 13; ECF No. 41, p. 17). In support of his sworn statement, 23 Plaintiff refers to a grievance he filed after the hearing, in which he states that he should not be 24 held in Ad-Seg pending the investigation and that he was not allowed to make a statement 25 concerning the Ad-Seg placement. (ECF No. 38-3, pgs. 39 & 41). Therefore, there is a dispute 26 of fact regarding whether Plaintiff was allowed to present his views at the November 25, 2015 27 hearing, and thus whether he received all process that was due even for non-disciplinary 28 administrative segregation. 1 Additionally, the Court finds that defendant Powers is not entitled to qualified 2 immunity. As discussed above, the facts shown by Plaintiff make out a violation of his 3 constitutional rights. Moreover, the procedures required when an inmate is disciplined in a way 4 that causes him to be deprived of a liberty interest have been clearly established since at least 5 1974, which is when Wolff was decided, and the procedures required when an inmate is 6 segregated for administrative purposes appear to have been clearly established since at least 7 1986, which is when Toussaint was decided.11 And here, at the very least, there is a genuine 8 dispute of material fact regarding whether defendant Powers provided the required procedures. 9 Thus, construing disputed facts in favor of Plaintiff, the right defendant Powers violated was 10 clearly established at the time of her alleged misconduct in 2015. 11 Drawing all reasonable inferences in Plaintiff’s favor, and taking Plaintiff’s evidence as 12 true, defendant Powers did not follow procedures that were clearly required by case law. 13 Accordingly, defendant Powers is not entitled to qualified immunity, and Defendants’ motion 14 for summary judgment should be denied as to Plaintiff’s claim against defendant Powers. 15 The analysis as to defendant Cano is different. Plaintiff has not submitted competent 16 evidence that defendant Cano was responsible for any violation of his Fourteenth Amendment 17 due process rights. 18 It is undisputed that defendant Cano responded to Plaintiff’s grievance complaining 19 about his retention in Ad-Seg. (ECF No. 38-3, pgs. 43-44). However, while defendant Cano 20 stated that Plaintiff’s retention in Ad-Seg was not a mistake, defendant Cano did not deny 21 Plaintiff’s grievance. Instead, he granted it in part and ordered that Plaintiff be given a new 22 Classification Committee hearing within fourteen days. (Id. at 44). He also attended the new 23 hearing, and at the new hearing, Plaintiff was ordered released from Ad-Seg, which is the 24 \\\ 25 26 11 While portions of the Toussaint decision are no longer good law, courts in this circuit have continued to 27 require the procedures described above. See, e.g., Moreno v. Terhune, 84 F. App’x 818, 819-20 (9th Cir. 2003); Tapia v. Alameida, 2006 WL 842470, at *6 (E.D. Cal. Mar. 29, 2006); Dixon v. Gonzales, 2011 WL 5526110, at 28 *4 (E.D. Cal. Nov. 14, 2011), report and recommendation adopted, 2012 WL 893146 (E.D. Cal. Mar. 14, 2012); 1 outcome Plaintiff desired. (Id. at 34-38).12 2 Thus, there is no competent evidence that defendant Cano was responsible for violating 3 Plaintiff’s Fourteenth Amendment due process rights. 4 Plaintiff argues that instead of providing a new hearing, defendant Cano should have 5 ordered his release because, pursuant to regulations, Plaintiff should have been released within 6 seventy-two hours. However, Plaintiff misreads the relevant regulation. The regulation states 7 that “[a]ny case designated as NDS, and included in the MHSDS, shall be transferred to an 8 appropriate institution within 72 hours of initial designation.” Cal. Code Regs. tit. 15, § 9 3335(a)(2)(A) (emphasis added). It does not state that a qualifying inmate must be released 10 from Ad-Seg within seventy-two hours. 11 To the extent Plaintiff is arguing that defendant Cano is liable because he was the chief 12 deputy warden and was responsible for the conduct of his staff, this argument fails because, as 13 discussed above, there is no respondeat superior liability in section 1983 actions. 14 IV. PLAINTIFF’S REQUEST FOR SANCTIONS 15 Plaintiff raised discovery issues in his oppositions to Defendants’ motion for summary 16 judgment, and the Court has addressed some of those issues (see ECF Nos. 46 & 53). The 17 Court has not yet, however, addressed Plaintiff’s request for sanctions. 18 On March 10, 2021, the Court granted Plaintiff’s motion to compel in part. (ECF No. 19 46). The Court gave defendant Cano thirty days to provide Plaintiff with “all documents 20 regarding Peralta being continually held in administrative segregation from 11/16/15 through 21 2/10/16, including any rule, regulation, reports, or memoranda that Defendant’s referred to or 22 relied on in keeping Peralta in administrative segregation as opposed to releasing him to a 23 general population yard at CSP-LAC.” (Id. at 5 & 11) (emphasis removed). The Court gave 24 defendant Swetalla thirty days to provide Plaintiff with “all documents Defendant Swetalla may 25 26 12 The Court notes that it is undisputed that Plaintiff was not immediately released from Ad-Seg after the 27 hearing, but there is no evidence that defendant Cano was in any way responsible for Plaintiff’s delayed release. Based on a discovery response from defendant Powers, which Plaintiff submitted in support of his motion, it 28 appears that Plaintiff’s release was delayed because there were no Special Needs Yard beds available. (ECF No. 1 use at trial or otherwise in [his] defense in this case to Peralta’s claims against Defendant 2 Swetalla of sexual assault and excessive force.” (Id. at 7 & 11) (emphasis removed). The 3 Court gave defendant Powers thirty days to provide Plaintiff with “all non-confidential 4 documents regarding Plaintiff’s placement and stay in administrative segregation from 5 11/16/15 through February 10, 2016, including any classification documents used at Plaintiff’s 6 ICC actions you attended between the dates of 11/25/15 and 2/10/16.” (Id. at 8 & 11) 7 (emphasis removed). The Court also gave defendant Machado thirty days to respond to three 8 interrogatories in full: 1) Integratory 11, which stated, “Is it your contention that your 9 subordinate officer did not use excessive force or sexually assault Peralta on 10/27/15 and 10 Peralta used this as an excuse to leave the yard due to his ‘debt;’” 2) Interrogatory 12, which 11 stated “Are you aware of the fact that Peralta has went to custody staff on at least four or five 12 occasions because he was assaulted by other prisoners, during this term under the CDC # P- 13 33314;” and 3) Interrogatory 14, which stated “Is it your contention that plaintiff Peralta did not 14 report the crimes of sexual assault and excessive force to you on 11/4/15 regarding your 15 subordinate staff on facility C at CCI.” (Id. at 8-10; id. at 11). The Court also required 16 Defendants to file a notice indicating that they complied with the Court’s order. (Id. at 11). 17 At the time, the Court did not sanction defense counsel. Instead, the Court allowed 18 Plaintiff to file a supplement to his opposition. (Id. at 4). 19 As Defendants failed to timely file a notice of compliance with the Court’s order on 20 Plaintiff’s motion to compel, on April 23, 2021, the Court directed them to file the notice. 21 (ECF No. 47). 22 In his first supplemental opposition, which was filed on April 28, 2021, Plaintiff alleges 23 that Defendants failed to comply with the Court’s order on the motion to compel. (ECF No. 48, 24 p. 1). According to Plaintiff, “Defendant Powers refused to provide any requests as ordered by 25 this court and should be precluded from presenting any documents at all before, during, or after 26 trial.” (Id.). Additionally, “Defendant Cano may have produced documents, but the plaintiff is 27 not certain of this fact as plaintiff did receive inmate appeal documents from Lancaster Prison, 28 but they have defendant Swetalla as being the propounding party of said documents.” (Id. at 1 2). Finally, Plaintiff appears to allege that defendant Machado lied in his supplemental 2 discovery responses. (Id.). “Plaintiff respectfully requests sanctions against defendant Powers 3 for her complete failure to produce documents as ordered by this court, and possibly against 4 defendant Cano if the documents with Swetalla’s name on them are not his.” (Id.). 5 On April 30, 2021, Defendants filed their notice of compliance, which they corrected on 6 May 3, 2021. (ECF Nos. 50-52). In their filing, Defendants state that they have complied with 7 the Court’s order. (ECF No. 52). However, they admit that, “[d]ue to inadvertent error,” 8 defendant Powers’ supplemental responses were not timely served on Plaintiff. (ECF No. 52, 9 p. 2). Instead, the documents were served concurrently with the April 30, 2021 filing. (ECF 10 No. 50, p. 2). 11 Based on the facts presented to the Court, Defendants did not timely provide Plaintiff 12 with defendant Powers’ supplement responses, despite being ordered to do so.13 However, as 13 the Court allowed Plaintiff to file another supplemental opposition after he received the 14 supplemental responses, and as Defendants indicate that the documents that were not timely 15 provided by defendant Powers were previously provided by defendant Cano (ECF No. 52, p. 16 2), the Court once again finds that Plaintiff did not suffer any prejudice. Moreover, there is no 17 evidence that defense counsel was attempting to hide any documents or to delay providing the 18 responses. Accordingly, the Court will not preclude defendant Powers from presenting 19 documents “before, during, or after trial.” 20 However, as Defendants failed to produce all of the discovery even after the Court 21 granted Plaintiff’s motion to compel, the Court will order Defendants’ counsel to pay the 22 expenses, if any, that Plaintiff incurred in filing his request for sanctions (ECF No. 48, pgs. 1- 23 2), which argued that Defendants failed to comply with the Court’s order on Plaintiff’s motion 24 to compel, as well as the expenses Plaintiff incurred in filing his second supplemental 25 26 13 In Plaintiff’s second supplemental reply, Plaintiff alleges that Defendants still have not provided all the discovery required by the Court. (ECF No. 54, p. 1). However, Plaintiff also states that he does not want the 27 Court to order more discovery, unless the Court thinks it is “absolutely necessary,” and that “[n]othing else is requested from any of these defendants.” (Id. at 5). As Plaintiff does not appear to want the Court to order any 28 additional discovery, and as Plaintiff does not request any additional sanctions, the Court will not address the issue 1 opposition (ECF No. 54), which Plaintiff would not have even been allowed to file had 2 Defendants complied with this Court’s order (see ECF No. 53). See Fed. R. Civ. P. 3 36(b)(2)(A), (C) (if a party “fails to obey an order to provide … discovery,” “the court must 4 order the disobedient party, the attorney advising that party, or both to pay the reasonable 5 expenses, including attorney’s fees, caused by the failure, unless the failure was substantially 6 justified or other circumstances make an award of expenses unjust.”). Such expenses may 7 include the costs for copies in connection with Plaintiff’s request for sanctions (ECF No. 48, 8 pgs. 1-2) and Plaintiff’s second supplemental opposition (ECF No. 54). 9 Plaintiff will be required to file a notice indicating the expenses, if any, he incurred in 10 filing his request for sanctions and his second supplemental opposition within thirty days from 11 the date of service of this order. If possible, Plaintiff should attach proof of his expenses. 12 Defendants’ counsel will be given thirty days from the date the notice is filed to either pay the 13 expenses or file an objection to the expenses listed by Plaintiff. 14 V. RECOMMENDATIONS AND ORDER 15 Based on the foregoing, the undersigned HEREBY RECOMMENDS that Defendants’ 16 motion for summary judgment be granted as to Plaintiff’s Fourteenth Amendment due process 17 claim against defendant Cano and denied as to Plaintiff’s First Amendment retaliation claim 18 against defendant Machado and Plaintiff’s Fourteenth Amendment due process claim against 19 defendant Powers. 20 These findings and recommendations are submitted to the United States district judge 21 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty- 22 one (21) days after being served with these findings and recommendations, any party may file 23 written objections with the court. Such a document should be captioned “Objections to 24 Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 25 served and filed within fourteen (14) days after service of the objections. The parties are 26 advised that failure to file objections within the specified time may result in the waiver of 27 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter 28 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 1 Additionally, IT IS ORDERED that Plaintiff’s request for sanctions is granted in part. 2 || Plaintiff has thirty days from the date of service of this order to file a notice indicating the 3 || expenses, if any, he incurred in bringing his request for sanctions (ECF No. 48, pgs. 1-2) and 4 || his second supplemental opposition (ECF No. 54). Defendants’ counsel has thirty days from 5 || the date the notice is filed to either pay the expenses or file an objection to the expenses listed 6 || by Plaintiff. 7 g IT IS SO ORDERED. 9|| Dated: _ July 8, 2021 [spe ey — 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25