(PC)Leonard v. Kaur ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FREDERICK E. LEONARD, Case No. 2:19-CV-2271-TLN-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GURMEET KAUR, 15 Defendant. 16 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the Court is Defendant’s motion for summary judgment, ECF 20 No. 37, Plaintiff’s opposition, ECF No. 40, and Defendant’s reply, ECF No. 41. Additionally, 21 before the Court is Plaintiff’s cross-motion for summary judgment, ECF No. 43, Defendant’s 22 opposition, ECF No. 46, and Plaintiff’s reply, ECF No. 49. Plaintiff’s single claim alleges that 23 Defendant, a prison librarian, denied him the use of the video viewing station in the prison law 24 library, in violation of his First Amendment right to access courts. 25 Both parties move for summary judgment. Defendant argues she is entitled to 26 summary judgment because Plaintiff’s underlying case is frivolous, and she did not prevent him 27 from meeting a court-ordered deadline. ECF No. 37 at 1. In addition, she contends that she is 28 entitled to qualified immunity. Id. Plaintiff argues he is entitled to summary judgment because 1 Defendant violated his right to access to the courts and that Defendant is not entitled to qualified 2 immunity. ECF No. 43. The undersigned finds that there is no genuine dispute about whether 3 Defendant violated Plaintiff’s right of access to the courts and thus recommends that Defendant’s 4 motion for summary judgment be granted and Plaintiff’s cross-motion for summary judgment be 5 denied. 6 7 I. BACKGROUND 8 Plaintiff commenced this civil rights action on November 8, 2019. ECF No. 1. At 9 the relevant times, Plaintiff was a priority legal user (“PLU”), meaning he was allowed additional 10 time in the prison law library. Id. Plaintiff was a PLU because he had court-ordered deadlines in 11 an active case, Leonard v. Casillas, et al., No. 2:18-CV-2004-CKD-P. 12 Plaintiff alleges in his complaint that on three dates, June 6, 7, and 8 of 2019, 13 Defendant prohibited him from using the video viewing station in the law library, which barred 14 him from filing objections to a court order. ECF No. 1 at 1-4. Specifically, he claims that 15 Defendant did not allow him to utilize the viewing station in the library while he conducted legal 16 research. Id. at 3. Plaintiff additionally alleges that Defendant accused him of “monopolizing” 17 the video equipment and he feared pursuing his legal work because Defendant threatened him 18 with disciplinary action. Id. He also alleges that on June 8, 2019, Defendant told him that he was 19 wasting his time as PLU and that she would consider his actions in the future when deciding 20 whether to grant him PLU status. Id. at 4. 21 Plaintiff commenced the underlying case of Leonard v. Casillas, et al., No. 2:18- 22 CV-2004-CKD-P on June 7, 2018. ECF No. 1. In that case, he brought several claims against 23 three defendants: Casillas, Foster, and Shahid. Id. In a screening order, the Court found that 24 Plaintiff’s retaliation claim against Casillas was cognizable. Id. However, it found the following 25 claims were not cognizable: (1) deliberate indifference to Plaintiff’s serious medical needs against 26 Casillas, (2) indeliberate indifference to Plaintiff’s due process rights against Shahid and Foster, 27 and (3) due process violations against Shahid and Casillas. Id. The Court gave Plaintiff two 28 options: proceed on his complaint, subject its dismissal of the incognizable claims, or amended 1 his complaint. Id. The Court allowed him fourteen days to notify the Court of his decision. Id. 2 On May 6, 2019, Plaintiff notified the Court that he elected to amend his complaint. ECF No. 11. 3 The Court granted Plaintiff thirty days from the date of service (May 10, 2019) to file his 4 amended complaint. ECF No. 12. On May 31, 2019, Plaintiff filed his first amended complaint. 5 ECF No. 13. The Court issued another screening order addressing Plaintiff’s first amended 6 complaint on June 6, 2019. ECF No. 15. There, the Court found that Plaintiff had stated viable 7 claims against Casillas and Foster for retaliation and against Shahid and Foster for due process. 8 Id. However, the Court found Plaintiff’s claims against Shahid and Foster for deliberate 9 indifference to Plaintiff’s due process rights and his claim against Casillas for due process did not 10 state viable claims. Id. The Court dismissed those claims and ordered Plaintiff to file any 11 objections within fourteen days of June 6, 2019, meaning he had until June 20, 2019. Id. 12 Plaintiff did not file any objections, and the Court ultimately dismissed those claims without leave 13 to amend. ECF No. 20. 14 15 II. THE PARTIES’ EVIDENCE 16 A. Defendant’s Evidence 17 Defendant’s motion for summary judgment is supported by declarations of L. 18 Pigniolo, a California Department of Corrections and Rehabilitation (“CDCR”) California State 19 Prison (“CSP”)-Solano Librarian, ECF No. 37-5, and Stacia L. Johns, a Deputy Attorney General 20 employed by the Office of the Attorney General for the State of California and Defendant’s 21 counsel, ECF No. 37-4, as well as portions of Plaintiff’s deposition transcript and interrogatory 22 responses, id. at 4-18. Defendant also submitted a Statement of Undisputed Facts, ECF No. 37-3, 23 contending the following facts are undisputed: 24 1. Plaintiff Frederick Leonard (BD7691) is a prisoner in the custody of the California Department of Corrections and Rehabilitation 25 (CDCR). (Compl. 1, ECF No. 1.) Plaintiff was housed at Solano State Prison at times material to the matters at issue. (Id. at 1-2.) 26 2. At all times relevant to this action, Defendant Kaur was 27 employed by CDCR at Solano State Prison as a Senior Librarian. (Compl. 2, ECF No. 1.) 28 1 3. Plaintiff initiated the action in Leonard v. Casillas, et al., Case No. 2:18-cv-2004 (E.D. Cal.) on July 20, 2018. (Defs.’ Req. for 2 Judicial Notice (RJN), Ex. B.) The complaint alleged that the defendants, G. Casillas, A. Shahid, and P. Foster, violated his rights under the First, 3 Eighth, and Fourteenth Amendments. (Id.) 4 4. On April 24, 2019, the court screened the complaint, finding that Plaintiff failed to state claims upon which relief could be 5 granted with respect to his claims against defendants Shahid and Foster, and with respect to his deliberate indifference and due process claims 6 against Casillas. (RJN Ex. C.) The court gave Plaintiff the option to proceed on his retaliation against defendant Casillas or amend the 7 complaint. (Id.) The court ordered Plaintiff to complete and return a form notifying the court as to how he chose to proceed within fourteen days. 8 (Id.) 9 5. On May 6, 2019, Plaintiff filed a notice indicating he would amend the complaint. (RJN Ex. D.) 10 6. On May 10, 2019, the court ordered Plaintiff to amend his 11 complaint within thirty days. (RJN Ex. E.) The order stated that if Plaintiff failed to amend the complaint, the case would proceed on the 12 original complaint as screened. (Id.) 13 7. Plaintiff filed an amended complaint on May 31, 2019. (RJN Ex. F.) The amended complaint alleged that the defendants G. 14 Casillas, A. Shahid, and P. Foster violated Plaintiff’s rights under the First, Eighth, and Fourteenth Amendments. (Id.) 15 8. On June 6, 2019, the court issued findings and 16 recommendations with respect to Plaintiff’s First Amended Complaint. (RJN Ex. G.) The court found service appropriate with respect to 17 Plaintiff’s First Amendment claims against defendants Casillas and Foster. (Id.) The court also found service appropriate with respect to Plaintiff’s 18 due process claims against defendants Foster and Shahid. (Id.) The court recommended that Plaintiff’s due process claim against defendant Casillas 19 and his deliberate indifference claims against defendants Shahid and Foster be dismissed without leave to amend. (Id.) The court ordered that 20 any objections to the findings and recommendations were due within fourteen days. (Id.) The court served the order on Plaintiff by mail. (RJN 21 Ex. A.) 22 9. Plaintiff’s objections to the findings and recommendations were due June 24, 2019. (Fed. R. Civ. Proc. 6(a)(1)(C), (d).) 23 10. Plaintiff received the findings and recommendations on 24 approximately June 10, 2019, or June 11, 2019. (Pl.’s Dep. 46:20-47:5; Pl.’s Response to Def.’s Interrogatory No. 5.) 25 11. Plaintiff never filed objections to the findings and 26 recommendations issued June 6, 2019. (RJN Ex. A.) The district judge adopted the magistrate judge’s findings and recommendations on July 22, 27 2019. (Id.) 28 1 12. The case Leonard v. Casillas, et al., Case No. 2:18-cv-2004 (E.D. Cal.) remains pending at the time of this motion. (RJN Ex. A.) 2 13. At all relevant times, Plaintiff had Priority Legal User 3 (PLU) status in the prison library. (Compl. 3-4, ECF No. 1; Pigniolo Decl. ¶ 4, Ex. A.) 4 14. On June 6, 2019, Plaintiff visited the law library from 5 approximately 7:50 a.m. to 11:30 a.m., and from 12:40 p.m. to 2:30 p.m. He used the video viewing station from 8:30 a.m. to 11:30 a.m., and from 6 12:45 p.m. to 2:30 p.m. (Pigniolo Decl. ¶¶ 6-7; Exs. B, C.) 7 15. On June 7, 2019, Plaintiff visited the library from 7:30 a.m. to 11:30 a.m., and from 12:50 p.m. to 2:30 p.m. (Id.) He used the video 8 viewing station from 7:55 a.m. to 9:10 a.m., from 10:30 a.m. to 11:30 a.m., and from 1:00 p.m. to 2:20 p.m. (Id.) 9 16. On June 8, 2019, Plaintiff visited the library from 7:40 a.m. 10 to 11:30 a.m., and from 12:40 p.m. to 2:30 p.m. (Id.) He used the video viewing station from 7:40 a.m. to 9:20 a.m. (Id.) 11 17. On June 11, 2019, Plaintiff visited the library from 8:08 12 a.m. to 11:30 a.m., and from 12:30 p.m. to 2:30 p.m. (Id.) He used the video viewing station from 8:45 a.m. to 11:20 a.m. (Id.) 13 18. On June 12, 2019, Plaintiff visited the library from 8:15 14 a.m. to 11:30 a.m., and from 12:40 p.m. to 2:30 p.m. (Id.) He used the video viewing station from 10:10 a.m. to 11:10 a.m., and from 12:35 p.m. 15 to 2:30 p.m. (Id.) 16 19. On June 13, 2019, Plaintiff visited the library from 7:37 a.m. to 11:30 a.m. and from 12:35 p.m. to 2:30 p.m. (Id.) He used the 17 video viewing station from 8:00 a.m. to 10:00 a.m., from 10:10 a.m. to 11:10 a.m., and from 12:35 p.m. to 2:20 p.m. (Id.) 18 20. On June 14, 2019, Plaintiff visited the library from 7:40 19 a.m. to 11:30 a.m., and from 12:35 p.m. to 2:30 p.m. (Id.) He used the video viewing station from 8:00 a.m. to 11:30 a.m., and from 12:35 p.m. 20 to 2:30 p.m. (Id.) 21 21. On June 15, 2019, Plaintiff visited the library from approximately 1:20 p.m. to 2:30 p.m. (Id.) He used the video viewing 22 station from 1:20 p.m. to 2:20 p.m. (Id.) 23 22. On June 18, 2019, Plaintiff visited the library from 7:40 a.m. to 11:30 a.m., and from 12:40 p.m. to 2:30 p.m. (Id.) He used the 24 video viewing station from 8:00 a.m. to 9:15 a.m., and from 12:40 p.m. to 2:20 p.m. (Id.) 25 23. On June 19, 2019, Plaintiff visited the library from 7:40 26 a.m. to 11:30 a.m., and from 12:40 p.m. to 2:30 p.m. (Id.) He used the video viewing station from 8:00 a.m. to 11:30 a.m., and from 12:40 p.m. 27 to 2:25 p.m. (Id.) 28 1 24. On June 20, 2019, Plaintiff visited the library from 7:40 a.m. to 11:30 a.m., and from 12:40 p.m. to 2:30 p.m. (Id.) He used the 2 video viewing station from 8:00 a.m. to 9:15 a.m. (Id.) 3 25. On June 21, 2019, Plaintiff visited the library from 7:45 a.m. to 11:30 a.m. (Id.) He used the video viewing station from 8:05 a.m. 4 to 11:15 a.m. (Id.) 5 26. On June 22, 2019, Plaintiff visited the library from 12:47 p.m. to 2:30 p.m. (Pigniolo Decl. ¶ 6, Ex. B.) 6 27. On June 6, 7, and 8, 2019, Plaintiff used the video viewing 7 station to watch JFK, a 1991 film starring Kevin Costner. (Pigniolo Decl. ¶ 8, Ex. D.) 8 28. Plaintiff used the video viewing station to watch JFK on 9 June 11, 13, 14, 15, 18, 19, 20, and 21, 2019. (Id.) 10 29. JFK was the only film Plaintiff viewed in the library in June 2019. (Id.) 11 ECF No. 37-3. 12 13 B. Plaintiff’s Evidence 14 In response to Defendant’s Statement of Undisputed Facts, Plaintiff offers his own 15 declaration signed under penalty of perjury. ECF No. 40 at 1-2. He states in his declaration that 16 Defendant’s motion for summary judgment is untimely and thus should not be considered by this 17 Court. Id. at 2. 18 In support of his cross-motion for summary judgment, Plaintiff filed a Statement 19 of Disputed Facts asserting genuine issues of disputed fact. See ECF No. 43. In support of his 20 opposition, Plaintiff offers his own declaration signed under penalty of perjury, see id. at 3-6, as 21 well as the following exhibits: 22 Exhibit A Plaintiff’s complaint, id. at 20. 23 Exhibit B Plaintiff’s administrative grievance log # 19-01603 and second and third level responses, id. at 25. 24 Exhibit C Plaintiff’s administrative grievance log # 19-01599 and second and 25 third level response, id. at 33. 26 Exhibit D Plaintiff’s administrative grievance log # 19-01159 and second third level response, id. at 42. 27 Exhibit E Plaintiff’s inmate request for interview, id. at 49. 28 1 Exhibit F Defendant’s responses to Plaintiff’s first set of interrogatories, id. at 51. 2 Exhibit G Defendant’s responses to Plaintiff’s first set of requests for 3 admissions, id. at 64. 4 Exhibit H Defendant’s responses to Plaintiff’s second set of requests for admissions, id. at 75. 5 Exhibit I Defendant’s responses to Plaintiff’s second set of interrogatories, 6 id. at 85. 7 Exhibit J Plaintiff’s PLU status memorandum dated id. at 95. 8 Exhibit K Court order in case Leonard v. Casillas, Case No. 2:18-cv-2004- CKD (P), dated April 24, 2019, id. at 99. 9 Exhibit L Plaintiff’s PLU status memorandum and court order in case 10 Leonard v. Casillas, Case No. 2:18-cv-2004-CKD (P), dated May 10, 2019, id. at 112. 11 Exhibit M Plaintiff’s requested extension of PLU status and Leonard v. 12 Casillas, Case No. 2:18-cv-2004-CKD (P), dated June 6, 2019 id. at 119. 13 Exhibit N Court order from Leonard v. Casillas, Case No. 2:18-cv-2004- 14 WBS-CKD (P), dated July 19, 2019, id. at 132. 15 Exhibit O Plaintiff’s PLU status memorandum dated November 1, 2019, and a settlement conference memorandum dated December 5, 2019 id. at 16 137. 17 Exhibit P Video Library Request from CSP-Solano Prison dated June 7 and 8, 2019, id. at 142. 18 Exhibit Q Declaration of Keith Harrell, id. at 144. 19 20 Because Plaintiff is pro se, the Court “must consider as evidence in his opposition 21 to summary judgment all of [the] contentions offered in motions and pleadings, where such 22 contentions are based on personal knowledge and set forth facts that would be admissible in 23 evidence, and where [Plaintiff] attested under penalty of perjury that the contents of the motions 24 or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). Therefore, 25 the Court will also consider as evidence the factual assertions made in Plaintiff’s complaint, 26 which is verified. 27 / / / 28 / / / 1 III. STANDARD FOR SUMMARY JUDGEMENT 2 The Federal Rules of Civil Procedure provide for summary judgment or summary 3 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 4 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 5 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 6 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 7 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 8 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 9 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 10 moving party 11 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 12 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 13 genuine issue of material fact. 14 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 15 16 If the moving party meets its initial responsibility, the burden then shifts to the 17 opposing party to establish that a genuine issue as to any material fact actually does exist. See 18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 19 establish the existence of this factual dispute, the opposing party may not rely upon the 20 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 21 form of affidavits, and/or admissible discovery material, in support of its contention that the 22 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 23 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 24 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 25 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 26 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 27 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 28 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 1 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 2 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 3 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 4 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 5 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 6 In resolving the summary judgment motion, the Court examines the pleadings, 7 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 8 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 9 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 10 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 11 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 12 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 13 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 14 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 15 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 16 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 17 imposed.” Anderson, 477 U.S. at 251. 18 IV. DISUCSSION 19 Plaintiff alleges that Defendant violated his First Amendment right to access courts 20 by denying him the use of the prison law library’s video viewing station on June 6, 7, and 8, 21 2019. Defendant avers that she is entitled to summary judgment for three reasons. ECF No. 37 at 22 1. First, she argues Plaintiff’s underlying case was frivolous. Id. Second, she contends there is 23 no evidence that she blocked him from meeting a court-ordered deadline. Id. Finally, she argues 24 she is entitled to qualified immunity. Id. Plaintiff argues that Defendant violated his right to 25 access courts and that she is not entitled to summary judgment. 1 ECF No. 43. Having 26 1 Plaintiff also asserts that Defendant retaliated against him and interfered with his 27 access to courts on additional dates. As Plaintiff failed to include either of these claims in the complaint, this Court will not address them at this time. See Gonzalez v. City of Fed. Way, 299 28 F. App’x. 708, 710 (9th Cir. 2008). 1 considered the evidence, the Court concludes Defendant did not violate Plaintiff’s First 2 Amendment right. The Court therefore recommends granting Defendant’s motion and denying 3 Plaintiff’s motion. 4 Prisoners have a First Amendment right of access to the courts. See Lewis v. 5 Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Jones v. Williams, 6 791 F.3d 1023, 1035 (9th Cir. 2015); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). Prison 7 officials must “assist inmates in the preparation and filing of meaningful legal papers by 8 providing prisoners with adequate law libraries or adequate assistance from persons trained in the 9 law.” Bounds, 430 U.S. at 828; Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011) 10 (overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 11 2015). But the right does not require a particular methodology. See Lewis, 518 U.S. at 356. It 12 guarantees the “capability of bringing contemplated challenges to sentences or conditions of 13 confinement before the courts.” Id. It does not promise to turn inmates into effective litigators. 14 See id. at 354-55; Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). The right of access secures 15 the ability to present non-frivolous claims to the court, it does not secure a right to discover 16 claims or litigate them effectively once filed. See Lewis, 518 U.S. at 354-55; Phillips, 477 F.3d at 17 655. The tools required are those that inmates need to attack their sentences or challenge 18 conditions of confinement. See Lewis, 518 U.S. at 355; Phillips, 477 F.3d at 655. “Impairment 19 of any other litigating capacity is simply one of the incidental (and perfectly constitutional) 20 consequences of conviction and incarceration.” Lewis, 518 U.S. at 355; see Phillips, 477 F.3d at 21 655. The right is restricted to non-frivolous criminal appeals, civil rights actions under 42 U.S.C. 22 § 1983, and habeas corpus petitions. Lewis, 518 U.S. at 353 n.3, 354-56. 23 The United States Supreme Court has identified two categories of access-to-court 24 claims. Christopher v. Harbury, 536 U.S. 403, 412-13 (2002). The first category includes 25 “forward-looking” claims, which allege that official action presently frustrates a plaintiff’s ability 26 to prepare and file a suit. Id. at 413. The second category, “backward-looking” claims, allege 27 that due to official action, a specific case “cannot now be tried (or tried with all material 28 evidence), no matter what official action may be in the future.” Id. at 413-14. These cases look 1 “backward to a time when specific litigation ended poorly, or could not have commenced, or 2 could have produced a remedy subsequently unobtainable.” Id. at 414. 3 To establish an access to the court violation, a prisoner must identify an actual 4 injury. Lewis, 518 U.S. at 349-351; Nev. Dep’t of Corrs. v. Greene, 648 F.3d 1014, 1018 (9th 5 Cir. 2011); Urmancheev v. Anglea, No.:1:19-cv-00791-DAD-JLT (PC), 2020 WL 1904818, at *2 6 (E.D. Cal. Apr. 17, 2020). An actual injury is “actual prejudice with respect to contemplated or 7 existing litigation, such as the inability to meet a filing deadline or to present a claim.” Lewis, 8 518 U.S. at 349; Urmancheev, 2019 WL 1904818, at *2. An actual injury is a jurisdictional 9 requirement and may not be waived. See Lewis, 518 U.S. at 348-52; Urmancheev, 2019 WL 10 1904818, at *2. And in the backward-looking context more specifically, a plaintiff must identify: 11 (1) loss of a “nonfrivolous,” “arguable” underlying claim; (2) the official acts that frustrated the 12 litigation of the underlying claim; and (3) a remedy that “may be awarded as recompense but [is] 13 not otherwise available in some suit that may yet be brought.” Harbury, 536 U.S. at 414-18; 14 Urmancheev, 2019 WL 1904818, at *2; Kabede v. Brown, No. 2:16-cv-1765 DB (P), 2017 WL 15 714300, at *6 (E.D. Cal. Feb. 22, 2017). 16 Under California prison regulations, to be eligible for PLU status, inmates must 17 demonstrate that they have a court ordered deadline in an active case or a statutory deadline, and 18 they must not be represented by counsel. Cal. Code Regs. tit. 15 § 3122 (b) (1), (2). Generally, 19 an inmate can obtain PLU status within 30 calendar days of the court-ordered deadline. See id. at 20 (b)(5). An inmate with PLU status may have their status revoked or be removed from the library 21 if they are “observed by staff to act in an unreasonably disruptive manner or [] engage in non- 22 legal work.” Id. at (b)(7). Additionally, use the law library is “for the purpose of using its legal 23 resources.” Cal. Code Regs. tit. 15 § 3123(a). And while all inmates are entitled to access the 24 law library, “[i]nmates on PLU status may receive a minimum of 4 hours per calendar week of 25 requested physical law library access, as resources are available, and shall be given higher 26 priority to the law library resources.” Id. at (b). 27 / / / 28 / / / 1 Both parties argue that the opposing motions are untimely. Pursuant to the 2 scheduling order, the deadline for filing dispositive motions was March 29, 2019. ECF No. 21. 3 Defendant filed her motion on March 29, 2019, ECF No. 37, and thus it is timely. Plaintiff’s 4 motion, on the other hand, was not file until April 23, 2021. ECF No. 43. Despite this, the Court 5 will consider Plaintiff’s motion given that Defendant’s opposition substantively addresses it. 6 Turning to the merits, the undisputed evidence shows that Plaintiff had access to 7 the prison law library and its video viewing station.2 Indeed, the law library access logs establish 8 that he was in the law library for a total of 16 hours and 38 minutes on June 6, 7, and 8, 2019. 9 ECF No. 37-5 at 55-65. As for the video viewing station, the logs indicate Plaintiff used it for 3 10 hours on June 6, 2 hours and 20 minutes on June 7, and 1 hour and 40 minutes on June 8. Id. at 11 78-79. Plaintiff’s evidence does not refute the logs which show that he had access to the law 12 library as well as the video viewing station. Accordingly, Plaintiff cannot succeed on his claim. 13 The Court finds that Defendant has met her summary judgment burden of demonstrating the 14 absence of triable issues of fact arising from Plaintiff’s allegation and that Plaintiff has not 15 overcome this showing with evidence establishing a triable issue of fact. Thus, this Court 16 recommends granting Defendant’s motion and denying Plaintiff’s motion. 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 2 Aside from the evidence showing that Plaintiff had access to the library and video 26 viewing station, the evidence also shows that he did not know about the pending court deadline until after he claimed Defendant denied him access. See ECF No. 37-4 at 46-47 (Plaintiff 27 acknowledging he did not receive the Court order with deadlines until June 11, 2019); ECF No. 37-4 at 15-16 (Plaintiff acknowledging he did not receive the Court order with deadlines until 28 June 10, 2019). 1 V. CONCLUSION 2 Based on the foregoing, the undersigned recommends that Defendant’s motion for 3 | summary judgment, ECF No. 37, be granted, and Plaintiffs cross-motion for summary judgment, 4 | ECF No. 43, be denied. 5 These findings and recommendations are submitted to the United States District 6 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 7 | after being served with these findings and recommendations, any party may file written 8 | objections with the court. Responses to the objections shall be filed within 14 days after service 9 | of objections. Failure to file objections within the specified time may waive the right to appeal. 10 | See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 11 12 || Dated: December 3, 2021 Ssvcqo_ 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13