(PC) Elder v. Joksch ( 2021 )

Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 1 of 33 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COREY JEROME ELDER, No. 2:16-CV-1925-TLN-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SILVA, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court are Defendants’ motion for summary judgement, 19 ECF No. 34, Plaintiff’s opposition, ECF No. 36, and response, ECF No. 37, and Defendants’ 20 reply, ECF No. 39. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 2 of 33 1 I. BACKGROUND 2 A. Plaintiff’s Allegations 3 This action proceeds on Plaintiff’s first amended complaint. See ECF No. 16. 4 Plaintiff names seven defendants employed at High Desert State Prison: (1) Correctional Officer 5 (C/O) Silva, (2) C/O Joksch, (3) C/O Whitcome, (4) Correctional Sergeant (Sgt.) Speers, (5) Sgt. 6 Brackett,1 (6) Correctional Lieutenant (Lt.) Ramsey, and (7) Lt. Hogan. See id. 7 Though Plaintiff’s narrative of the facts jumps forward and backward in time, the 8 following outline of Plaintiff’s allegations is arranged chronologically. 9 July 2014 10 According to Plaintiff, two weeks after his arrival at High Desert State Prison on 11 July 8, 2014, Defendant Silva issued plaintiff his personal property on July 22, 2014. See ECF 12 No. 16 at 4. At that time, Defendant Silva informed Plaintiff that a few items were disallowed, 13 including Plaintiff’s posters. See id. Plaintiff alleges Defendant Silva told Plaintiff that he had 14 three days to put enough money in his trust account to have the posters sent home before the 15 prison disposed of them. See id. Plaintiff gathered the funds within three days, but his posters 16 had been disposed of anyway. See id. Plaintiff subsequently filed a grievance against Defendant 17 Silva for prematurely disposing of his posters. See id. 18 September 2014 19 On September 7, 2014, Plaintiff did not receive lunch and asked Defendant Joksch 20 if he could retrieve it. See id. at 5. Defendant Joksch allegedly responded, “[y]ou like to write up 21 staff and complain like a little bitch, so fuck your state lunch!” Id. Plaintiff filed a grievance 22 against Defendant Joksch the same day. See id. 23 On the following day, September 8, 2014, Defendant Joksch allegedly ordered 24 Plaintiff: “Pack up your shit your [sic] moving with a gang member. You need to learn a fucking 25 lesson!” Id. Plaintiff asked Defendant Joksch why he was being moved, leading Defendant 26 Joksch to respond: “I’ll show you how we deal with problems up here.” Id. Defendant Joksch 27 subsequently reported a rules violation against Plaintiff for “willfully delaying a peace officer by 28 1 Defendant Brackett is erroneously named as “Bradett.” 2 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 3 of 33 1 refusing assigned housing.” Id. 2 October 2014 3 On October 6, 2014, Defendant Speers interviewed Plaintiff for his first grievance 4 regarding his posters. Id. Plaintiff explained that Defendant Silva gave him three days to fund 5 his trust account and provided Defendant Speers with a property receipt showing Plaintiff never 6 signed nor agreed to donate or destroy his confiscated property. See Id. Defendant Speers 7 allegedly responded multiple times by stating: “Well, my officer fucked up.” Id. 8 On October 17, 2014, Defendant Ramsey interviewed Plaintiff regarding the rule 9 violation report issued by Defendant Joksch. See id. Plaintiff expressed that he believed Joksch’s 10 disciplinary action was in retaliation for Plaintiff’s complaint against him. See id. Defendant 11 Ramsey ruled against Plaintiff and imposed a penalty of ninety days loss of credit and suspended 12 privileges. See id. at 6. Although not included in the penalties imposed by defendant Ramsey, 13 Plaintiff was denied access to the yard and dayroom, and was confined to his cell for twenty 14 consecutive days. See id. During Plaintiff’s confinement, he complained to Defendant 15 Whitcome, who told Plaintiff, “this is not a place for ‘whiners’ or ‘complainers.’” See id. at 5. 16 November 2014 17 On November 17, 2014, Correctional Counselor D. Clark interviewed Plaintiff 18 regarding his rules violation appeal. See id. Plaintiff explained that he was wrongly confined to 19 quarters and that the retaliation he experienced made him afraid for his safety. D. Clark allegedly 20 responded to plaintiff by stating: “your [sic] lucky it isn’t worse.” Id. 21 February 2015 22 On February 18, 2015, Defendant Brackett ordered Plaintiff and his cellmate to the 23 showers and seized Plaintiff’s legal documents from his cell for a “future search.” Id. 24 /// 25 /// 26 /// 27 /// 28 /// 3 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 4 of 33 1 The following summarizes Plaintiff’s claims by defendant: 2 Silva Plaintiff claims Defendant Silva improperly destroyed his property in July 2014, conduct for which Plaintiff filed a 3 grievance. See id. at 4. 4 Joksch Plaintiff claims that he didn’t receive a state-provided sack lunch on September 7, 2014, and that, when he asked Defendant Joksch 5 about it, Defendant Joksch said: “You like to write up staff and complain like a little bitch, so fuck your state lunch!” Id. at 5. 6 Plaintiff further claims that, the next day, Defendant Joksch gave Plaintiff the following order: “Pack up your shit your [sic] moving 7 with a gang member.” Id. According to Plaintiff, Defendant Joksch also stated: “You need to learn a fucking lesson!” Id. 8 When Plaintiff asked Defendant Joksch why he was suddenly being moved, Defendant Joksch allegedly said: “I’ll show you 9 how we deal with ‘problems’ up here.” Id. Plaintiff also alleges that, for simply asking why he was being moved, Defendant 10 Joksch issued Plaintiff a rules violation report for willfully delaying a peace officer by refusing assigned housing. See id. 11 Whitcome Plaintiff claims that, upon attempting to enter the yard and 12 dayroom, he asked Defendant Whitcome about the loss of yard and dayroom privileges assessed by Defendant Ramsey and 13 Defendant Whitcome said: “This is not a place for ‘whiners’ or ‘complainers.’” Id. Plaintiff states that he remained “confined 14 to quarters” for 20 consecutive days. Id. 15 Speers Plaintiff states Defendant Speers interviewed him in October 2014 regarding the grievance he filed following Defendant 16 Silva’s alleged destruction of his property. See id. at 4. According to Plaintiff, after he explained to Defendant Speers 17 what Defendant Silva had done, Defendant Speers responded: “Well, my officer fucked up.” Id. at 4. 18 Brackett Plaintiff states that, when he and his cellmate were taken out of 19 their cell and “placed in the shower,” Defendant Brackett took Plaintiff’s legal materials for a “future search.” Id. at 6. When 20 Plaintiff asked Defendant Brackett about this, Defendant Brackett allegedly responded: “This is your last ‘warning.’” Id. 21 Ramsey Plaintiff alleges that, on October 17, 2014, Defendant Ramsey 22 presided over the hearing on the rules violation report issued by Defendant Joksch for refusing a housing assignment. See id. at 5. 23 Plaintiff states that he was found guilty of the rules violation and assessed “90 days loss of credit” and other privileges. Id. at 5. 24 Hogan Plaintiff’s first amended complaint contains no allegations 25 relating to Defendant Hogan. See e.g. id. 26 27 /// 28 /// 4 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 5 of 33 1 B. Procedural History 2 Plaintiff filed the original complaint against all defendants herein and Warden R. 3 St. Andre on July 21, 2016, alleging multiple constitutional violations. See ECF No. 1. On 4 November 15, 2018, the Court granted Plaintiff leave to amend the complaint’s non-cognizable 5 claims. See ECF No. 15. In that order, the Court identified three potential claims: (1) destruction 6 of property, in violation of the Due Process Clause of the Fourteenth Amendment; (2) retaliation 7 in violation of the First Amendment; and (3) improper search and seizure. See id. 8 On December 17, 2018, Plaintiff filed his first amended complaint, omitting all 9 claims against St. Andre. See ECF No. 16. The Court ordered service on the remaining 10 defendants for various claims including: (1) retaliation, in violation of the First Amendment; and 11 (2) deliberate indifference, in violation of the Eighth Amendment. See ECF Nos. 17, 19. On 12 April 29, 2020, Defendants filed their motion for summary judgment. See ECF No. 34. 13 14 II. STANDARD FOR SUMMARY JUDGEMENT 15 The Federal Rules of Civil Procedure provide for summary judgment or summary 16 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 17 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 18 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 19 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 20 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 21 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 22 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 23 moving party 24 always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 25 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 26 genuine issue of material fact. 27 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 28 /// 5 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 6 of 33 1 If the moving party meets its initial responsibility, the burden then shifts to the 2 opposing party to establish that a genuine issue as to any material fact actually does exist. See 3 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 4 establish the existence of this factual dispute, the opposing party may not rely upon the 5 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 6 form of affidavits, and/or admissible discovery material, in support of its contention that the 7 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 8 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 9 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 10 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 11 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 12 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 13 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 14 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 15 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 16 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 17 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 18 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 19 In resolving the summary judgment motion, the court examines the pleadings, 20 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 21 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 22 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 23 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 24 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 25 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 26 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 27 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 28 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 6 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 7 of 33 1 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 2 imposed.” Anderson, 477 U.S. at 251. 3 4 III. THE PARTIES’ EVIDENCE 5 Defendants’ motion for summary judgment is supported by the following: 6 DX A The sworn of declaration H. Cervantez. See ECF No. 34-3, pgs. 8-70. 7 DX B The California Department of Corrections and Rehabilitation 8 (CDCR) Operations Manual excerpt dated January 1, 2014. See id. at 71-73. 9 DX C Transcript excerpts of the deposition of Corey Jerome Elder 10 dated January 10, 2020. See id. at 74-76. 11 DX D The sworn declaration of S. Barnes. See id. at 77-87. 12 DX E Unpublished cases provided to Plaintiff in accordance with the local rules. See id. at 88-108. 13 14 Plaintiff’s opposition to the motion for summary judgment is supported by: 15 Exhibit 1 Plaintiff’s comprehensive accommodation chrono form dated September 4, 2009. See ECF No. 37, pgs. 30-31. 16 Exhibit 2 A cell search receipt dated February 18, 2015. See id. at 38-39. 17 Exhibit 3 Plaintiff’s CDCR level of care decision form. See id. at 40-42. 18 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 7 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 8 of 33 1 In further support of their motion, Defendants have submitted a Statement of 2 Undisputed Facts (DUF)2, ECF No. 34-3, pgs. 1-7, and Plaintiff has submitted his responses, see 3 ECF No. 37, pgs.1-12. The following summarizes these filings: 4 Defendants’ Statement Plaintiff’s Response 5 1. Plaintiff, Corey Jerome Elder (F-10489) is a 1. Admit. 6 state prisoner in the custody of the California Department of Corrections and 7 Rehabilitation (CDCR). (Defendants’ Exhibit A (DX A), Attachment 1, decl. of H. Cervantes 8 and documents from Plaintiff’s central file, p. 2-5.) Plaintiff was housed at High Desert State 9 Prison (HDSP) at times material to the matters at issue. 10 (DX A-1, p. 2.) 11 12 2. Defendants are employees of CDCR, and 2. Admit. were assigned to HDSP in the following 13 positions: Defendants Hogan and Ramsey were Correctional Lieutenants; Defendants 14 Speers and Brackett were Correctional Sergeants; and Defendants Silva, Joksch, and 15 Whitcome were Correctional Officers at HDSP, and were assigned to HDSP at all times 16 material to the matters at issue. 17 (First Amended Compl. at § III.) 18 3. Plaintiff arrived at HDSP on July 8, 2014, as 3. Admit. 19 an adverse transfer due an increase in his classification score. 20 (DX A-1, p. 2.) 21 22 4. Plaintiff appeared for his initial 4. Admit. classification committee hearing on July 15, 23 2014, during which time the committee found that Plaintiff was eligible for double-cell 24 housing. 25 (DX A, p. 6-7.) 26 27 2 28 The Court notes that DUF 32 appears to be missing. Also, Plaintiff sometimes refers to himself as “petitioner.” 8 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 9 of 33 1 Defendants’ Statement Plaintiff’s Response 2 5. Following his assignment to C-Facility, Unit 5. Deny. In defendant’s [sic] exhibit marked, 3 8, cell 132, upper bunk, Plaintiff was issued DXA-010 petitioner signed and dated the his property. property receipt on 7-22-2014. A full two 4 weeks after petitioner had arrived. (DX A-1, p. 7.) 5 6 6. According to the property receipt, Plaintiff 6. Deny. Again, on defendant’s [sic] exhibit received four boxes of property on July 22, marked, DXA-010 there is no signature in the 7 2014, but he was denied his hair and nail box marked “Inmate Signature” where clippers, a red prayer rug, and posters. Those petitioner was suppose [sic] to have signed. 8 items were donated because Plaintiff did not Petitioner’s signature is only in the box where have adequate funds in his trust account to he received 4 boxes of his property. 9 send them out. 10 (DX A-1, p. 9-10, 19.) 11 7. On August 12, 2014, Plaintiff submitted a 7. Admit. 12 request for interview claiming that he was waiting for some portraits to be sent home. 13 (DX A-1, p. 10(a).) 14 15 8. Plaintiff received a response on August 19, 8. Admit. 2014, indicating there was nothing in the 16 computer system showing that Plaintiff had property that was mailed home. 17 (DX A-1, p. 10(a).) 18 19 9. That same day Plaintiff filed a grievance 9. Admit. claiming that he was told when his property 20 was received that he could not have his portraits or drawings, and he wanted them sent 21 to his attorney. Plaintiff did not allege that he was told his paintings would be held until he 22 received money from home. As his requested disposition, Plaintiff again requested that his 23 property be sent to his attorney. 24 (DX A-1, p. 11.) 25 26 /// 27 /// 28 /// 9 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 10 of 33 1 10. Plaintiff does not know who donated or 10. Deny. Petitioner claims that defendant 2 destroyed his portraits or drawings. Silva destroyed/donated his portraits or drawings. 3 (Defendants’ Exhibit C (DX C), deposition transcript of Corey Elder, 22:19-24.) 4 5 11. On October 6, 2014, Sergeant Speers 11. Deny. Petitioner wasn’t interviewed on interviewed Plaintiff regarding his grievance. “October 6, 2014” but on October 21, 2014. 6 (DX A-1, p. 19.) 7 8 12. Sergeant Speers advised Plaintiff that his 12. Deny. In the defendant’s [sic] exhibit drawings were confiscated on July 22, 2014, “DXA-019” is an appeal in which it was 9 and at that time, Officer Sauder contacted the alleged that Sergeant Speers “told you at the trust office to determine whether Plaintiff had time the drawings were confiscated; you did 10 money in his account to send the property out. not have the available funds to mail them Because Plaintiff did not have funds in his out.” Petitioner only dealt with correctional 11 trust account, his property was donated in officer Silva when issued his property. accordance with the Department Operations Petitioner only met Speers when interviewed 12 Manual (DOM), section 54030.12.2. 2 months after receiving his property. 13 (DX A-1, p. 19.) 14 13. DOM section 54030.12.2 states, 13. Admit. 15 “Unauthorized inmate personal property, including that which is altered, exceeds 16 volume limitations, or is beyond repair, shall be disposed of in accordance with the 17 provisions of this Section. The institution shall not store unauthorized inmate property except 18 as provided for inmates placed in ASU as provided for in Section 54030.13.2.” That 19 section goes on to state, “Inmates shall sign the CDC Form 1083 indicating their choice of 20 disposition and agreement to the method for disposing of their property. If the inmate 21 makes no selection or has insufficient funds, staff shall document that fact and determine 22 the method of disposition. Unauthorized personal property shall be 23 disposed of as follows: 24 Mail the item to an address provided by the inmate via United States Postal Service 25 (USPS) or common carrier at the inmate’s expense. This option is not available for 26 inmates with insufficient funds in their trust 27 (13 continued on next page) 28 10 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 11 of 33 1 (13 continued from previous page) 2 account. Return the item to the sender via 3 USPS or common carrier at the inmate’s expense. This option is not available for 4 inmates with insufficient funds in their trust account. [sic] 5 (Defendants’ Exhibit B (DX B)) 6 7 14. At the time that Plaintiff’s property was 14. Deny. In direct violation of the disallowed, Plaintiff did not have funds in his disposition in Department Operations Manual 8 trust account, therefore, his property was 2014, section 54030.12., petitioner never donated. signed or agreed to have his property donated 9 or destroyed as evidence by the property (DX A-1, p. 19.) receipt. 10 11 12 15. Plaintiff’s grievance was denied at the first 15. Admit. level of review by Associate Warden 13 Zumpano on October 21, 2014. 14 (DX A-1, p. 20.) 15 16. Dissatisfied with the first level response, 16. Admit. 16 Plaintiff submitted his grievance to the second level of review on October 27, 2014, 17 claiming that his property was not contraband and should not have been confiscated. Plaintiff 18 also claimed that unnamed officers failed to comply with procedures. For the first time, 19 Plaintiff alleged that Officer Silva had informed Plaintiff that he had until July 25, 20 2014, to get money sent into his trust account, and the property would be held until that date. 21 Plaintiff claimed that when he mentioned this 22 during his interview, Sergeant Speers stated, “oh well, my officer fucked up.” 23 (DX A-1, p. 13-14.) 24 25 /// 26 /// 27 /// 28 /// 11 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 12 of 33 1 17. Plaintiff was again interviewed regarding 17. Deny. In addition to being interviewed by 2 his property on November 22, 2014, this Lieutenant Hogan, plaintiff was asked did he time by Lieutenant Hogan. Hogan also have anything that he wanted to add. Plaintiff 3 interviewed Sergeant Speers and Officer Silva. indeed said that he wanted to add some Lieutenant Hogan advised Plaintiff that his things. Plaintiff went on to explain that he 4 drawings were confiscated because they were was being harassed, intimidated, and on oversized paper, which was not allowed at retaliated against. 5 HDSP. 6 (DX A-1, p. 21-22.) 7 18. Plaintiff’s grievance was denied at the 18. Admit. 8 second level of review by Chief Deputy Warden St. Andre on November 24, 2014. 9 Plaintiff’s grievance was later denied at the Director’s level of review. 10 (DX A-1, p. 22-23.) 11 12 19. Plaintiff filed another grievance on 19. Admit. September 7, 2014, this time claiming that 13 second watch correctional staff ran out of sack lunches, but promised to get Plaintiff a lunch 14 before the shift ended. Plaintiff also claimed that when he complained to Officer Joksch 15 during third watch, Joksch was disrespectful, stating “so what am I supposed to do about 16 your lunch? I don’t give a fuck about your lunch.” Plaintiff requested that Officer Joksch 17 be reprimanded. 18 (DX A-1, p. 25-26.) 19 20. Plaintiff withdrew his grievance on 20. Deny. Petitioner withdrew his grievance 20 September 19, 2014, advising that housing unit with the agreement that the harassment, officers had provided Plaintiff with his sack intimidation, and retaliation would stop. 21 lunch on September 7, 2014. Which it didn’t, but only worsened . . . [sic] 22 (DX A-1, p. 27.) 23 21. On September 8, 2014, Officer Joksch 21. Deny. Petitioner was issued a rules 24 issued Plaintiff a rules violation for delaying a violation report just one day after filing the peace officer when Plaintiff refused to accept a grievance against officer Joksch. Petitioner 25 cell partner. contended that he never refused a cell partner. 26 (DX A-1, p. 28.) 27 28 /// 12 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 13 of 33 1 22. Officer Joksch noted that the inmate with 22. Deny. Petitioner wrote a staff 2 whom Plaintiff was to be housed was complaint/grievance on September 7, 2014. evaluated and deemed compatible, and there Then just the very next day on September 8, 3 were no known factors that prevented the two 2014 petitioner was told to move. Petitioner inmates from being housed together. Joksch only asked where he was moving and if the 4 ordered Plaintiff to move into a new cell with other inmate could possibly move with the inmate, but he refused to do so. Plaintiff petitioner. Petitioner produced a permanent 5 then produced an outdated accommodation lower bunk that he received in 2009 that was chrono dated September 9, 2009, claiming that never canceled or rescinded. 6 he needed a lower bunk. Officer Joksch went to the clinic to get Plaintiff’s most recent (Exhibit 1) 7 accommodation chrono, which noted that Plaintiff did not require any accommodations. 8 (DX A-1, p. 28.) 9 10 23. In authoring the rules violation report, 23. Deny. There is no documentation that Officer Joksch noted that Plaintiff had refused petitioner ever refused a cell partner. This 11 to accept two other cell partners on September allegation was only made in Officer Joksch’s 7, 2014. rules violation report authored one day after 12 petitioner wrote the staff complaint/grievance (DX A-1, p. 30.) against Officer Joksch. 13 14 24. Plaintiff’s disciplinary hearing on the rules 24. Admit. violation was held on October 17, 2014. 15 Lieutenant Ramsey acted and the Senior Hearing Officer, advising Plaintiff of the 16 charges against him. 17 (DX A-1, p. 28.) 18 25. Plaintiff pled not guilty to the charge of 25. Admit. 19 willfully delaying a peace officer by refusing assigned housing, stating, “I am a 20 non-affiliated inmate and they were trying to house me on the upper tier with a gang 21 member. Also, I have a lower bunk/lower tier chrono.” 22 (DX A-1, p. 32.) 23 24 26. During the hearing, Lieutenant Ramsey 26. Deny. Petitioner did in fact request noted that Plaintiff did not meet the criteria witnesses and that other evidence be 25 for the assignment of an investigative admitted. employee (IE) to assist Plaintiff. Ramsey also 26 noted that all time constraints had been met, and Plaintiff had not requested witnesses. 27 (DX A-1, p. 31-32.) 28 13 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 14 of 33 1 27. Lieutenant Ramsey found Plaintiff guilty 27. Deny. As noted in petitioners [sic] appeal, 2 of the charge against him based on a DXA-038, 039, there was no other evidence preponderance of the evidence. offered against petitioner other than Officer 3 Joksch’s word. Lieutenant Ramsey considered the rules 4 violation report authored by Officer Joksch, Petitioner explained that he and that Plaintiff had presented an outdated did in fact end up accepting a cell mate. 5 accommodation chrono that was no longer Petitioner also explained that he has been valid. Lieutenant Ramsey also considered coming to the California Department of 6 Plaintiff’s level of mental health care, even Corrections since 1992 and has never refused though it was determined that Plaintiff’s a cell mate [sic] and that this was just clearly 7 mental health was not a factor in refusing a a retaliatory act against petitioner. cell partner. Finally, Lieutenant Ramsey noted 8 that all of the cell partners offered to Plaintiff were designated racially eligible, as was 9 Plaintiff. 10 (DX A-1, p. 32-34.) 11 28. Because it was Plaintiff’s first rules 28. Admit. 12 violation for refusing to accept a cell partner, Defendant Ramsey assessed Plaintiff ninety 13 days loss of credits and privileges, including canteen, telephone, vendor packages, and 14 personal property. 15 (DX A-1, p. 34.) 16 29. On November 5, 2014, Plaintiff submitted 29. Admit. 17 a grievance, challenging the finding of guilt. Plaintiff claimed he was denied an 18 investigative employee, and witnesses at the hearing. Plaintiff also claimed that Lieutenant 19 Ramsey refused to provide him the ability to submit documents that would show Plaintiff 20 that the rules violation was retaliatory. 21 (DX A-1, p. 38-39.) 22 30. The grievance was denied at the second 30. Admit. 23 level of review on December 17, 2014, by Acting Chief Deputy Warden St. Andre, who 24 found that Plaintiff had received all of the process he was due. 25 (DX A-1, p. 42-44.) 26 27 /// 28 /// 14 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 15 of 33 1 31. On December 4, 2014, Plaintiff filed 31. Deny. Petitioner was written a rules 2 another grievance, this time complaining that violation, found guilty, and prescribed he was being denied access to dayroom and specific punishment. In addition to the 3 yard, even though that was not part of the punishment imposed, petitioner was confined penalty imposed by Lieutenant Ramsey after to quarter for three weeks. On October 22, 4 Plaintiff was found guilty. Plaintiff wrote, and October 23, 2014, petitioner attempted to “from October 17, 2014, the date of the 115 go to the exercise yard and was told by 5 hearing when punishment was imposed, until Officer Whitcome that I was confined to November 6, 2014, petitioner was in addition quarters until January 15, 2015. Petitioner 6 to the punishments already imposed Plaintiff then stated that it was impossible for was confined to quarters and not permitted to petitioner to be confined to quarters for 2 7 go to the dayroom or to yard.” months with no access to the dayroom, yard, or showers. Officer Whitcome’s only 8 Plaintiff claimed that once he showed Officer response was, “This is what you get for Whitcome the disciplinary findings that listed ‘whining’ and complaining.’ You were 9 the privileges Plaintiff was denied, Plaintiff warned.” It wasn’t until November 6, 2014, was allowed to participate in dayroom and the following month that petitioner received a 10 yard. copy of the final disposition of the rules violation report that officer Whitcome 11 (DX A- 1, p. 39, 48-49.) conceded. Petitioner showed Officer Whitcome the final copy which listed no 12 confining to quarters. Then and only then was petitioner allowed yard. 13 14 33. Plaintiff’s grievance was rejected on 33. Deny. Petitioner’s appeal was January 5, 2014, because Plaintiff failed to inappropriately screened out against 15 provide the appropriate attachments. petitioner’s rights 16 (DX A-1, p. 59.) 17 34. Plaintiff resubmitted the grievance, which 34. Admit. 18 was later denied as untimely. 19 (DX A-1, p. 60.) 20 35. Plaintiff has never filed a grievance 35. Deny. On February 18, 2015 petitioner 21 claiming that Lieutenant Brackett searched and his cellmate was [sic] escorted and placed Plaintiff’s cell, or confiscated Plaintiff’s legal in the shower. 22 property. Only petitioner’s legal property was taken a 23 (Defendants’ Exhibit D (DX D), declaration of ‘future search.’ In what had been a series of S. Barnes, ¶ 11.) retaliatory actions against petitioner, 24 petitioner was ‘warned’ by Lieutenant Brackett, “this is your last warning.’” 25 Petitioner took this to mean that further harassment, harm, injury, or death was 26 imminent. And after a series of threats and warnings and out of pure fear for petitioner’s 27 (35 continued on next page) 28 15 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 16 of 33 1 (35 continued from previous page) 2 safety, petitioner chose not to further write 3 any more grievances. On 5-19-2015 petitioner’s mental status was increased from 4 CCCMS level of care to E.O.P level of care where petitioner had to undergo significantly 5 more mental health treatment because of the intimidation, retaliation, and harassment that 6 he experienced at High Desert State Prison. 7 (Exhibits 2 and 3) 8 9 10 IV. DISCUSSION 11 In their moving papers, Defendants raise the following arguments related to 12 Plaintiff’s retaliation claims: (1) Plaintiff cannot succeed on the merits against Defendants Silva, 13 Speers, Ramsey, and Whitcome; (2) Plaintiff has failed to exhaust his administrative remedies as 14 to Defendants Brackett, Whitcome, and Joksch; and (3) Defendants are entitled to qualified 15 immunity. See ECF No. 34-1. Defendants also argue that judgment should be rendered in 16 defendant Hogan’s favor because the first amended complaint contains no allegations against 17 him. See id. 18 Though the Court found the first amended complaint states a cognizable Eighth 19 Amendment claim against Defendant Joksch, Defendants raise no arguments as to such claim. 20 See e.g. id. The Court will, therefore, recommend this action proceed against defendant Joksch 21 on Plaintiff’s Eighth Amendment claim.3 The Court also agrees with Defendants that the first 22 23 3 Plaintiff’s Eighth Amendment claim stems from allegations related to his cell move on September 8, 2014. Plaintiff claims he was ordered to move to a cell “with a gang 24 member” in order to “learn a fucking lesson.” ECF No. 16, pg. 5. These references reasonably suggest Plaintiff feared for his safety as a result of the order, specifically that the “lesson” would 25 be in the form of violence perpetrated by a “gang member.” It also suggests the order was based, at least in part, on an intention to move Plaintiff to a cell with a known gang member who could 26 deliver that lesson, further implicating a safety concern. In its order determining Plaintiff’s first amended complaint is appropriate for service, the Court identified an Eighth Amendment claim 27 related to medical care. See ECF No. 17, pg. 2. Though the Court has recognized an Eighth Amendment claim since the inception of this lawsuit, Defendants very specifically move for 28 summary judgment “on the gounds that Plaintiff cannot meet the elements of a retaliation claim as to any of the named Defendants.” ECF No. 34-1, pg. 7. 16 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 17 of 33 1 amended complaint contains no allegations as against Defendant Hogan and will recommend this 2 defendant be dismissed. 3 The Court’s analysis below is limited to Defendants’ specific arguments 4 concerning the merits of Plaintiff’s First Amendment retaliation claims, exhaustion, and qualified 5 immunity. Given the complexity of the interaction of the various arguments in terms of whether 6 Defendants’ arguments are dispositive overall as to any defendant on Plaintiff’s retaliation claims, 7 the Court provides the following chart showing which arguments are raised as to which 8 defendants: 9 ARGUMENTS RELATED TO RETALIATION CLAIMS 10 Cannot Establish Claim is Qualified Merits of Claim Unexhausted Immunity 11 Silva X X 12 Joksch X4 X 13 Whitcome X X X 14 Speers X X 15 Brackett X X 16 Ramsey X X 17 18 A. The Merits 19 In order to prevail on a claim under 42 U.S.C. § 1983 for retaliation, the prisoner 20 must establish that he was retaliated against for exercising a constitutional right, and that the 21 retaliatory action was not related to a legitimate penological purpose, such as preserving 22 institutional security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). 23 In meeting this standard, the prisoner must demonstrate a specific link between the alleged 24 retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th 25 Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner 26 27 4 Defendants argue Plaintiff’s retaliation claim is unexhausted only insofar as it relates to denial of a sack lunch. To the extent, as discussed below, Plaintiff’s allegations give 28 rise to additional retaliation claims against Defendant Joksch, Defendants do not argue such claims are unexhausted. 17 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 18 of 33 1 must also show that the exercise of First Amendment rights was chilled, though not necessarily 2 silenced, by the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 3 2000), see also Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner 4 plaintiff must establish the following in order to state a claim for retaliation: (1) prison officials 5 took adverse action against the prisoner; (2) the adverse action was taken because the prisoner 6 engaged in protected conduct; (3) the adverse action chilled the prisoner’s First Amendment 7 rights; and (4) the adverse action did not serve a legitimate penological purpose. See Rhodes, 408 8 F.3d at 568. 9 According to Defendants, the following retaliation claims are at issue: 10 Plaintiff alleges that Defendants engaged in conduct in retaliation for Plaintiff submitting grievances. (ECF No. 16.) Specifically, Plaintiff 11 claims that: (1) Defendant Silva destroyed Plaintiff’s drawings in retaliation for filing a grievance against him; (2) Defendant Speers failed 12 to provide Plaintiff compensation for the artwork that was destroyed; (3) Defendant Joksch refused to provide Plaintiff with a state-issued lunch, 13 and issued Plaintiff a rules violation for failing to accept a gang member as a cell partner; (4) Plaintiff told Defendant Ramsey that Correctional 14 Officers were retaliating against him for filing a grievance, but Ramsey ignored Plaintiff’s complaints and found Plaintiff guilty of the rules 15 violation; (5) Plaintiff complained to Officer Whitcome about the restrictions and was told “this isn’t the place for whiners or complainers;” 16 and (6) Defendant Brackett searched Plaintiff’s cell as a warning to stop filing grievance. (Id.). 17 ECF No. 34-1, pgs. 10-11. 18 19 Defendants offer the following specific arguments on the merits of these claims: 20 1. Plaintiff’s retaliation claim against defendant Silva fails because the alleged retaliatory conduct occurred before plaintiff filed a grievance 21 and because plaintiff only speculates as to the alleged retaliatory conduct. See id. at 13. 22 2. Plaintiff’s retaliation claim against defendant Speers fails because he took 23 no adverse action against plaintiff and because plaintiff has not alleged an actual injury. See id. at 13, 15. 24 3. Plaintiff’s retaliation claim against defendant Ramsey fails because there is 25 no evidence Ramsey acted with retaliatory motive. See id. at 16. 26 4. Plaintiff’s retaliation claim against defendant Whitcome fails because he took no adverse action against plaintiff. See id. at 17. 27 28 /// 18 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 19 of 33 1 Defendants present no specific arguments related to the merits of Plaintiff’s 2 retaliation claims against Defendants Joksch and Brackett. See e.g. id. Defendants Joksch and 3 Brackett, therefore, are only entitled to judgment as a matter of law on Plaintiff’s retaliation 4 claims against them to the extent the claims are not exhausted or they are entitled to qualified 5 immunity, as further discussed below.5 The Court’s further analysis of the merits of Plaintiff’s 6 retaliation claims is limited to the four defendants as to whom arguments to the law and facts are 7 raised – Defendants Silva, Speers, Ramsey, and Whitcome. 8 1. Defendant Silva 9 According to Defendants, Plaintiff’s retaliation claim against Defendant Silva 10 fails because: (1) the alleged adverse action occurred before the alleged protected activity; and 11 (2) Plaintiff only speculates that Defendant Silva retaliated. See ECF No .34-1, pg. 13. 12 Defendants base these contentions on the following description of Plaintiff’s allegations against 13 Defendant Silva: 14 Plaintiff alleges that Defendant Silva intentionally destroyed Plaintiff’s drawings in retaliation for Plaintiff filing a grievance against 15 Silva. Specifically, Plaintiff states: 16 Upon receiving my property, I was told that I couldn’t have my portraits/drawings. Because I couldn’t have my 17 portraits/drawings, I was told by Officer Silva that I would be given 3 days to have money put in my inmate trust 18 account to have the portraits/drawings sent home. So I had the money sent to my account and notified C/O Silva that 19 the money had arrived as we agreed upon. Shortly thereafter I was told my drawings were destroyed. I 20 subsequently and timely appealed. (ECF No. 13 at p. 4.)6 21 Id. 22 /// 23 /// 24 /// 25 /// 26 27 5 Again, the Court notes that Defendants’ exhaustion argument as to Defendant Joksch is limited to Plaintiff’s claim relating to denial of a sack lunch. 28 6 Defendants’ citation to ECF No. 13 is presumed to be an error as the first amended complaint is filed at ECF No. 16. 19 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 20 of 33 1 a. Timing 2 Defendants contend Plaintiff’s retaliation claim against Defendant Silva fails due 3 to a timing problem. Specifically, Defendants argue the alleged adverse action occurred before 4 the alleged protected activity and, therefore, Plaintiff cannot establish the adverse action 5 occurred because of the protected activity. See ECF No. 34-1, pg. 13. According to Defendants: 6 This alleged adverse action cannot be the basis of Plaintiff’s retaliation claim against Defendant Silva because the adverse action 7 preceded Plaintiff’s protected conduct. Plaintiff’s drawings were donated on July 22, 2014 (DUF 6), but Plaintiff did not file a grievance regarding 8 his drawings until August 12, 2014. (DUF 9.) Thus, Plaintiff’s litigation activities cannot be a substantial or motivating factor for the alleged 9 disposal of his property. 10 ECF No. 34-1, pg. 13. 11 The Court agrees. As summarized above, Plaintiff’s claim against Defendant Silva 12 is quite limited. Specifically, Plaintiff claims that Defendant Silva improperly destroyed his 13 property in July 2014, conduct for which Plaintiff filed a grievance. See ECF No. 16, pg. 4; see 14 also DX A (Cervantes declaration). Plaintiff does not allege or produce evidence of any protected 15 activity of which Defendant Silva was aware which took place before the destruction of his 16 property in July 2014. Here, the only alleged protected activity – the filing of a grievance against 17 Defendant Silva – occurred after Plaintiff’s property was destroyed. Absent Plaintiff in engaging 18 in some protected activity prior to an adverse action, and absent Defendant Silva’s knowledge of 19 such activity, Plaintiff cannot establish that Defendant Silva’s conduct was motivated by the 20 protected activity. As such, Plaintiff cannot establish an essential element of his retaliation claim 21 against Defendant Silva. 22 b. Speculation 23 Even assuming some adverse action occurred after a protected activity, Defendants 24 also contend Plaintiff’s retaliation claim against Silva fails because Plaintiff only speculates that 25 retaliation occurred. See ECF No. 34-1, pg. 13. Defendants argue: 26 Plaintiff’s retaliation claim against Defendant Silva also fails because Plaintiff merely speculates that Defendant Silva destroyed the 27 drawings, and that he did so intentionally. But Plaintiff has no personal knowledge concerning this issue, and has no evidence to support his 28 beliefs. (DUF 10.) “[M]ere speculation that defendants acted out of 20 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 21 of 33 1 retaliation is not sufficient. ”Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014.) For both reasons, timing and speculation, Plaintiff’s retaliation 2 claim against Defendant Silva fails. 3 ECF No. 34-1, pg. 13. 4 Though the Court need not reach this argument because, as discussed above, 5 Plaintiff cannot establish a necessary element of his retaliation claim against Defendant Silva, the 6 Court nonetheless finds this argument persuasive as well. Plaintiff does not specifically allege 7 that Defendant Silva destroyed his property, see e.g. ECF No. 16, and Plaintiff admitted at his 8 deposition that he has no evidence to show Defendant Silva destroyed his property, see DX C 9 (transcript of Plaintiff’s deposition). 10 2. Defendant Speers 11 Defendants argue Plaintiff cannot prevail on his retaliation claims against 12 Defendant Speers because Defendant Speers took no adverse action against Plaintiff. See ECF 13 No. 34-1, pgs. 13-15. The Court agrees. 14 As with Defendant Silva, Plaintiff’s allegations against Defendant Speers are 15 limited. According to Plaintiff, Defendant Speers interviewed him in October 2014 regarding the 16 grievance he filed against Defendant Silva following the destruction of his property. See ECF 17 No. 16, pg. 4. Plaintiff further contends that, after he explained what Defendant Silva had done, 18 Defendant Speers responded: “Well, my officer fucked up.” Id. These allegations fail to state a 19 claim for retaliation against Defendant Speers because Plaintiff does not allege an adverse action. 20 See Diaz v. Sisto, 2010 WL 624618, at *8 (E. Dist. Cal. 2010); see also Wright v. Shannon, 2010 21 WL 445203 (E. Dist. Cal. 2010). Simply interviewing Plaintiff in relation to his grievance is not 22 necessarily adverse. Moreover, it serves a legitimate penological interest. 23 3. Defendant Ramsey 24 Defendants argue Plaintiff cannot prevail on his retaliation claim against defendant 25 Ramsey because Plaintiff has not alleged that Defendant Ramsey took adverse action as a result 26 of Plaintiff engaging in a protected activity. Defendant also contends Defendant Ramsey’s 27 conduct served a legitimate penological interest. See ECF No. 34-1, pgs. 15-17. The Court 28 agrees. 21 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 22 of 33 1 Plaintiff alleges Defendant Ramsey presided over the hearing on the rules violation 2 report issued by Defendant Joksch for refusing a housing assignment. See ECF No. 16, pgs. 5. 3 Plaintiff claims that, during the hearing, he told Defendant Ramsey that he believed the rules 4 violation report had been issued in retaliation. See id. According to Plaintiff, he was found guilty 5 and assessed a loss of credits as well as a loss of other privileges. See id. 6 While these allegations may suggest that Defendant’s Ramsey’s guilty finding 7 could have been a result of his desire to punish Plaintiff for having filed grievances against other 8 prison staff, the undisputed evidence shows otherwise. At DX A, Defendants provide the report 9 of the rules violation hearing conducted by Defendant Ramsey on October 17, 2014. See ECF 10 No. 34-3, pgs. 40-43. The report documents Plaintiff’s plea and statement. See id. According to 11 the report, Plaintiff pleaded not guilty and stated: “I am a Non-Affiliated Inmate and they were 12 trying to cell me on the upper tier with a gang member; Also, I have a lower bunk/lower tier 13 chrono.” Id. at 41. There is no evidence Plaintiff ever informed Defendant Ramsey the rules 14 violation report itself was retaliatory. 15 The Court finds Defendants have met their initial burden on summary judgment as 16 to Plaintiff’s retaliation claim against Defendant Ramsey. The burden shifts to Plaintiff to 17 demonstrate the existence of a genuine dispute of material fact. In this regard, the Court notes 18 that Plaintiff’s response to Defendants’ statement of undisputed facts does not indicate he ever 19 reported to Defendant Ramsey alleged retaliation as the motive for the rules violation report 20 issued by Defendant Joksch. Instead, Plaintiff denies Defendants’ assertions that Plaintiff did not 21 ask for witnesses at the hearing and that the decision was based on a preponderance of the 22 evidence. See ECF No. 37, pgs. 9-10 (Plaintiff’s response to Defendants’ statement of 23 undisputed facts). Plaintiff has not provided any evidence to support his contention that he 24 requested but was denied witnesses. In any event, whether Plaintiff asked for witnesses is not 25 material to showing Defendant Ramsey’s motivations. 26 There is simply no evidence to establish that Defendant Ramsey knew that the 27 rules violation report had been improperly written and that Defendant Ramsey nonetheless ruled 28 against Plaintiff out of a desire to retaliate against Plaintiff. 22 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 23 of 33 1 4. Defendant Whitcome 2 Defendants contend that Plaintiff’s retaliation claim against Defendant Whitcome 3 fails because the evidence shows that Defendant Whitcome did not take any adverse action 4 against Plaintiff. According to Defendants: 5 Plaintiff’s retaliation claim against Defendant Whitcome fails because the claim is belied by the words in Plaintiff’s grievance. 6 According to the grievance Plaintiff filed contesting the disciplinary hearing, Plaintiff states, “from October 17, 2014, the date of the 115 7 hearing when punishment was imposed, until November 6, 2014, petitioner was in addition to the punishments already imposed Plaintiff 8 was confined to quarters and not permitted to go to the dayroom or to yard.” (DUF 31.) Plaintiff then adds that when he showed Defendant 9 Whitcome the error, it was corrected. (DUF 32.) Plaintiff’s claim against Defendant Whitcome fails because 10 Plaintiff has not shown that Defendant Whitcome’s actions were adverse to him. Just the opposite is true. Whitcome helped Plaintiff get his 11 privileges of yard and dayroom reinstated. Accordingly, the claims against Officer Whitcome should be dismissed. 12 ECF No. 34-1, pg. 17. 13 14 Plaintiff alleges he asked Defendant Whitcome about the loss of yard and dayroom 15 privileges and that Defendant Whitcome responded: “This is not a place for ‘whiners’ or 16 ‘complainers.’” See ECF No. 16, pg. 5. Plaintiff further alleges that he remained confined to his 17 cell for 20 consecutive days. See id. The issue is whether Defendant Whitcome confined 18 Plaintiff to quarters for 20 days in retaliation for “whining” and “complaining” about prison staff. 19 In his inmate appeal of Defendant Ramsey’s guilty finding, Plaintiff stated that he 20 was told by Defendant Whitcome on October 22, 2014, and October 23, 2014, that he “was 21 confined to quarters until January 15, 2015.” See ECF No. 34-3, pg. 58 (DX A). Plaintiff also 22 stated that the loss of yard and dayroom privileges was not imposed as a result of Defendant 23 Ramsey’s guilty finding. See id. This is corroborated by Defendant Ramsey’s hearing report 24 which details the final disposition as a loss of “canteen, appliances, vendor packages, telephone 25 privileges and personal property for ninety (90) days.” Id. at 66 (DX A). Whether, as Defendants 26 contend, Defendant Whitcome eventually corrected the issue by restoring yard and dayroom 27 privileges does not prove that the loss of these privileges was not improperly enforced by 28 Defendant Whitcome in the first instance in retaliation for Plaintiff being a “complainer” and 23 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 24 of 33 1 “whiner.” 2 Based on the foregoing, the Court finds that Defendants have not met their initial 3 burden of establishing the non-existence of a genuine dispute on the issue of Defendant 4 Whitcome’s allegedly retaliatory conduct, specifically confining Plaintiff to his cell for 20 days 5 despite such confinement not being part of the punishment imposed by Defendant Ramsey on the 6 rules violation finding.7 7 B. Exhaustion 8 Under the Prison Litigation Reform Act (PLRA), prisoners seeking relief under 9 § 1983 must exhaust all available administrative remedies prior to bringing suit. See 42 U.S.C. 10 § 1997e(a). This requirement is mandatory regardless of the relief sought. See Booth v. Churner, 11 532 U.S. 731, 741 (2001) (overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because 12 exhaustion must precede the filing of the complaint, compliance with § 1997e(a) is not achieved 13 by exhausting administrative remedies while the lawsuit is pending. See McKinney v. Carey, 311 14 F.3d 1198, 1199 (9th Cir. 2002). The Supreme Court addressed the exhaustion requirement in 15 Jones v. Bock, 549 U.S. 199 (2007), and held: (1) prisoners are not required to specially plead or 16 demonstrate exhaustion in the complaint because lack of exhaustion is an affirmative defense 17 which must be pleaded and proved by the defendants; (2) an individual named as a defendant 18 does not necessarily need to be named in the grievance process for exhaustion to be considered 19 adequate because the applicable procedural rules that a prisoner must follow are defined by the 20 particular grievance process, not by the PLRA; and (3) the PLRA does not require dismissal of 21 the entire complaint if only some, but not all, claims are unexhausted. The defendant bears 22 burden of showing non-exhaustion in first instance. See Albino v. Baca, 747 F.3d 1162, 1172 23 (9th Cir. 2014). If met, the plaintiff bears the burden of showing that the grievance process was 24 not available, for example because it was thwarted, prolonged, or inadequate. See id. 25 /// 26 /// 27 7 Defendants’ contentions that Plaintiff’s retaliation claim against Defendant 28 Whitcome is unexhausted and that Defendant Whitcome is entitled to qualified immunity on the claim are discussed below. 24 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 25 of 33 1 The Supreme Court held in Woodford v. Ngo that, in order to exhaust 2 administrative remedies, the prisoner must comply with all of the prison system’s procedural 3 rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, 4 exhaustion requires compliance with “deadlines and other critical procedural rules.” Id. at 90. 5 Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance 6 which affords prison officials a full and fair opportunity to address the prisoner’s claims. See id. 7 at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the 8 quantity of prisoner suits “because some prisoners are successful in the administrative process, 9 and others are persuaded by the proceedings not to file an action in federal court.” Id. at 94. 10 A prisoner in California satisfies the administrative exhaustion requirement by 11 following the procedures set forth in §§ 3084.1-3084.8 of Title 15 of the California Code of 12 Regulations. In California, prisoners “may appeal any policy, decision, action, condition, or 13 omission by the department or its staff that the inmate . . . can demonstrate as having a material 14 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). 15 The prisoner must submit their appeal on the proper form, and is required to identify the staff 16 member(s) involved as well as describing their involvement in the issue. See Cal. Code Regs. tit. 17 15, § 3084.2(a). These regulations require the prisoner to proceed through three levels of appeal. 18 See Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.2, 3084.7. A decision at the third formal level, 19 which is also referred to as the director’s level, is not appealable and concludes a prisoner’s 20 departmental administrative remedy. See id. Departmental appeals coordinators may reject a 21 prisoner’s administrative appeal for a number of reasons, including untimeliness, filing excessive 22 appeals, use of improper language, failure to attach supporting documents, and failure to follow 23 proper procedures. See Cal. Code Regs. tit. 15, §§ 3084.6(b). If an appeal is rejected, the 24 prisoner is to be provided clear instructions how to cure the defects therein. See Cal. Code Regs. 25 tit. 15, §§ 3084.5(b), 3084.6(a). Group appeals are permitted on the proper form with each 26 prisoner clearly identified and signed by each member of the group. See Cal. Code Regs. tit 15, 27 § 3084.2(h). 28 /// 25 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 26 of 33 1 According to Defendants: 2 On the face of Plaintiff’s First Amended Complaint, he acknowledges that an administrative grievance process was available to him. (ECF No. 16 at 3 2.) He also alleges that he exhausted all available administrative remedies. (Id.) But the evidence shows that Plaintiff withdrew his grievance regarding 4 Defendant Joksch’s failure to provide him with a sack lunch. (DUF 20.) Plaintiff has never filed a grievance regarding his claims against Defendant 5 Brackett, and his grievance against Defendant Whitcome was rejected as untimely. (DUF 31-35.) 6 ECF No. 34-1, pg. 19. 7 8 At the outset, the Court observes that Defendants’ motion is somewhat confusing 9 as to exhaustion, specifically as to which defendants the failure to exhaust is asserted. In the 10 heading to this section of their moving point and authorities, Defendants state: “Plaintiff’s claims 11 against Defendants Brackett and Whitcome fail because Plaintiff did not exhaust his 12 administrative remedies regarding these claims before filing suit.” ECF No. 34-1, pg. 18. In this 13 section, however, Defendants raise arguments related to Defendant Jocsch’s alleged denial of a 14 sack lunch in addition to arguments related to Defendants Brackett in Whitcome.8 In their reply 15 brief, Defendants for the first time raise exhaustion argument concerning Defendants Silva and 16 Speers. See ECF No. 39, pgs. 3-4. Defendants state in their reply: “Defendants Silva, Speers, 17 Joksch, Whicome, and Brackett are therefore entitled to summary judgment because Plaintiff 18 never submitted an appeal through the final level of review regarding any claims of [retaliation] 19 against these Defendants before initiating this action.” Id. at 4. 20 Because Defendants did not raise the issue of exhaustion as to Defendants Silva or 21 Speers in their moving papers, the Court does not address the arguments raised for the first time 22 in a reply brief to which Plaintiff had no opportunity to respond. Given that, as discussed above, 23 the Court finds that Plaintiff’s retaliation claims fail on the merits as against Defendants Silva and 24 Speers, no prejudice results to Defendants. The Court’s analysis below is focused on the 25 arguments raised in the moving papers as to Defendants Joksch, Whitcome, and Brackett. 26 /// 27 28 8 Defendants raise no exhaustion argument as to Plaintiff’s claim that Defendant Joksch retaliated against him by ordering a cell move on September 8, 2014. 26 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 27 of 33 1 1. Defendant Joksch 2 Defendants contend: 3 Plaintiff claims that he was denied a sack lunch, and when he complained to Defendant Joksch, he was rebuffed, Joksch stating, “[y]ou 4 like to write up staff and complain like a little bitch, so fuck your state lunch.” (ECF No. 16 at 5.) Plaintiff submitted a grievance complaining 5 he was denied a lunch by second watch staff. (DUF 19.) While the grievance alleges that Joksch was unprofessional in dealing with Plaintiff, 6 there is nothing in the grievance alleging that Joksch’s actions were retaliatory in nature, or in any way based on Plaintiff filing a grievance. 7 (DUF 19.) Plaintiff later withdrew the grievance, advising that the lunch had 8 been provided “by housing unit officers later in the day.” (DUF 20.). . . . 9 *** 10 In this case, Plaintiff withdrew the grievance after receiving his lunch. Plaintiff has never alleged that he withdrew his grievance due to 11 intimidation by Defendant Joksch or any other officer. Thus, Plaintiff did not exhaust his administrative remedies before filing suit as required by 12 the PLRA, and his claim against Defendant Joksch should be dismissed. 13 ECF No. 34-1, pgs. 19-20. 14 Defendants’ argument is persuasive. Plaintiff admits that, on September 19, 2014, 15 he withdrew his grievance concerning denial of a sack lunch on September 7, 2014, because he 16 was provided a sack lunch later that day. See ECF No. 37, pg. 7. Plaintiff’s retaliation claim 17 against Defendant Joksch based on the denial of a sack lunch on September 7, 2014, is 18 unexhausted. 19 2. Defendant Whitcome 20 Defendants contend: 21 Plaintiff appears to allege that Defendant Whitcome retaliated against him for filing a grievance against Officer Joksch. However, the 22 grievance Plaintiff filed against Defendant Whitcome was never processed, as it was rejected by the Appeals Coordinator, first for failure 23 to attach the appropriate paperwork, and later as untimely. (DUF 33-34.) Plaintiff failed to comply with the relevant grievance rules and therefore 24 failed to exhaust. . . . 25 ECF No. 34-1, pgs. 20-21. 26 /// 27 /// 28 27 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 28 of 33 1 The Court agrees that Plaintiff’s retaliation claim against Defendant Whitcome is 2 unexhausted. At issue are two grievances filed by Plaintiff concerning this claim. In his response 3 to Defendants’ statement of undisputed facts, Plaintiff contends that his first grievance was 4 improperly screened out but admits that his second grievance was denied as untimely. See ECF 5 No. 37, pgs. 11-12. While Plaintiff claims the first grievance was improperly handled, he makes 6 no such allegation in response to Defendants’ motion as to the second grievance. Nor does 7 Plaintiff allege or submit evidence to show that he challenged the timeliness determination. 8 3. Defendant Brackett 9 Defendants assert: 10 A review of the grievances filed by Plaintiff in 2014 and 2015 show that Plaintiff did not file a grievance regarding the search of his cell 11 by Defendant Brackett. (DUF 35.) Plaintiff filed several grievances, including a grievance regarding his disciplinary hearing, and the denial of 12 a sack lunch, but there are no records Plaintiff appealed the search of his cell or the confiscation of his legal property. (DUF 35.) 13 ECF No. 34-1, pg. 21. 14 15 In his opposition to Defendants’ motion for summary judgment, Plaintiff admits 16 that he never sought administrative relief for his claim against defendant Brackett. See ECF No. 17 37, pg. 12. Plaintiff argues, however, that Defendant Brackett’s conduct caused him to fear that 18 further acts of retaliation would occur if he did file a grievance. See id. Plaintiff describes the 19 following circumstances for his decision to not seek administrative relief: 20 On February 18, 2015, [Plaintiff] and his cellmate was [sic] escorted and placed in the shower. Only [Plaintiff’s] legal property was 21 taken for a “future search.” In what had been a series of retaliatory actions against [Plaintiff], [Plaintiff] was “warned” by Lieutenant Brackett, “this 22 is your last ‘warning.’” [Plaintiff] took this to mean that further harassment, harm, injury or death was imminent. And after a series of 23 threats and warnings and out of pure fear for [Plaintiff’s] safety, [Plaintiff] chose not [to] further write any more grievances. . . . 24 ECF No. 37, pg. 12. 25 26 /// 27 /// 28 /// 28 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 29 of 33 1 The Ninth Circuit has held that “the threat of retaliation for reporting an incident 2 can render the prison grievance process effectively unavailable and thereby excuse a prisoner’s 3 failure to exhaust administrative remedies.” McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 4 2015). There are subjective and objective components to test whether a prisoner’s fear of 5 retaliation excuses non-exhaustion. See id. For the subjective prong, the “prisoner must provide a 6 basis for the court to find that he actually believed prison officials would retaliate against him if 7 he filed a grievance.” Id. Upon showing the subjective prong, the prisoner must then 8 demonstrate his belief was objectively reasonable, meaning “a reasonable prisoner of ordinary 9 firmness would have believed that the prison official’s action communicated a threat not to use 10 the prison’s grievance procedure and that the threatened retaliation was of sufficient severity to 11 deter a reasonable prisoner from filing a grievance.” Id. 12 Applying McBride, the Court finds Plaintiff has provided a basis for concluding 13 that Defendant Brackett’s alleged threats deterred him from filing a grievance to satisfy the 14 subjective prong. As alleged in the first amended complaint and discussed herein, Plaintiff 15 believed he had already been frequently subjected to a series of retaliatory acts by prison officials. 16 Additionally, Defendant Brackett allegedly confiscated Plaintiff’s legal documents. See ECF No. 17 37, pg. 12. The circumstances of the alleged history of retaliation, Defendant Brackett seizing 18 legal materials, and Defendant Brackett admonishing Plaintiff that “this is your last ‘warning,’” 19 demonstrate Plaintiff could have subjectively believed defendant Brackett would retaliate against 20 him for filing a grievance. 21 As to the objective prong, the Court finds that Plaintiff fails to demonstrate that a 22 reasonable prisoner of ordinary firmness would have understood Defendant Brackett as 23 communicating a threat not to use the prison’s grievance procedures. Plaintiff seems to string 24 together Defendant Brackett’s actions with past incidents, involving different prison officials, 25 without explaining a retaliatory motive for Defendant Brackett. The Ninth Circuit has held that 26 “warning” a prisoner constitutes a threat when the evidence shows that the defendant knew the 27 prisoner continually used the grievance system. See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th 28 Cir. 2009). Defendant Brackett’s “warning” was not explicitly threatening retaliation if Plaintiff 29 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 30 of 33 1 were to use the prison’s grievance system, nor does Plaintiff offer evidence that Defendant 2 Brackett knew Plaintiff continually utilized the prison grievance system. Even though the threat 3 need not explicitly reference the grievance system to deter a reasonable prisoner, prisoners cannot 4 “avoid filing requirements on the basis of hostile interactions with guards when the interaction 5 has no apparent relation to the use of the grievance system.” McBride, 807 F.3d at 988. Because 6 Plaintiff fails to demonstrate Defendant Brackett threatened retaliation relating to Plaintiff’s use 7 of the prison’s grievance system, the Court finds Plaintiff fails to establish the objective prong of 8 McBride. As a result, Plaintiff has not overcome his failure to exhaust his retaliation claim 9 against Defendant Brackett. 10 C. Qualified Immunity 11 Government officials enjoy qualified immunity from civil damages unless their 12 conduct violates “clearly established statutory or constitutional rights of which a reasonable 13 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, 14 qualified immunity protects “all but the plainly incompetent or those who knowingly violate the 15 law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified 16 immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the 17 injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier 18 v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether 19 the right was clearly established. See id. This inquiry “must be undertaken in light of the specific 20 context of the case, not as a broad general proposition. . . .” Id. “[T]he right the official is 21 alleged to have violated must have been ‘clearly established’ in a more particularized, and hence 22 more relevant, sense: The contours of the right must be sufficiently clear that a reasonable 23 official would understand that what he is doing violates that right.” Id. at 202 (citation omitted). 24 Thus, the final step in the analysis is to determine whether a reasonable officer in similar 25 circumstances would have thought his conduct violated the alleged right. See id. at 205. 26 /// 27 /// 28 /// 30 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 31 of 33 1 When identifying the right allegedly violated, the court must define the right more 2 narrowly than the constitutional provision guaranteeing the right, but more broadly than the 3 factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th 4 Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently 5 clear that a reasonable official would understand [that] what [the official] is doing violates the 6 right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court 7 concludes that a right was clearly established, an officer is not entitled to qualified immunity 8 because a reasonably competent public official is charged with knowing the law governing his 9 conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff 10 has alleged a violation of a clearly established right, the government official is entitled to 11 qualified immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct 12 did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see 13 also Saucier, 533 U.S. at 205. 14 The first factors in the qualified immunity analysis involve purely legal questions. 15 See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal 16 determination based on a prior factual finding as to the reasonableness of the government 17 official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court 18 has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan, 19 555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light 20 most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See 21 Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 22 Although both the “clearly established right” and “reasonableness” inquiries are 23 questions of law, where there are factual disputes as to the parties’ conduct or motives, the case 24 cannot be resolved at summary judgment on qualified immunity grounds. See Lolli v. Cty. of 25 Orange, 351 F.3d 410, 421 (9th Cir. 2003); Wilkins v. City of Oakland, 350 F.3d 949, 955-56 26 (9th Cir. 2003); Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003); Martinez v. Stanford, 27 323 F.3d 1178, 1183-85 (9th Cir. 2003). 28 /// 31 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 32 of 33 1 Once a court determines that “the law was clearly established, the immunity 2 defense ordinarily should fail, since a reasonably competent public official should know the law 3 governing [the official’s] conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). Upon 4 establishing the violated right was clearly establish, however, the defendant then bears the burden 5 of establishing that the defendant reasonably believed the alleged conduct was lawful. See 6 Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). 7 As to whether the rights involved in this case were clearly established, Defendants 8 appear to concede they were. According to Defendants: 9 A prisoner’s general right against retaliatory punishment was clearly established well before Plaintiff was transferred to HDSP in 2014. 10 E.g., Rhodes, 408 F.3d at 569. Nor was there any question that Plaintiff was engaged in protected conduct when he filed grievances. . . .[H]e was 11 subjected to the type of adverse action that would chill speech. 12 ECF No. 34-1, pg. 23. 13 As to reasonableness, Defendants also appear to concede they cannot meet their 14 burden of showing that they reasonably but mistakenly believed their conduct was lawful. 15 Defendants state: “Because the analysis of a retaliation claim is largely subjective, it’s difficult to 16 determine at the [sic] whether reasonable officers in Defendants’ positions would have known 17 they were violating the law.” Id. The Court simply cannot find, based on the arguments 18 presented, that Defendants have met their burden as to qualified immunity. To the contrary, 19 Defendants appear to concede qualified immunity is inapplicable in this case at this time. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 32 Case 2:16-cv-01925-TLN-DMC Document 40 Filed 03/23/21 Page 33 of 33 1 V. CONCLUSION 2 Based on the foregoing, the undersigned recommends that: 3 1. Defendants’ motion for summary judgment, ECF No. 34, be granted in part 4 and denied in part as follows: 5 a. Defendants’ motion be granted as to the merits of Plaintiff’s claims against Defendants Silva, Speers, and Ramsey, as Plaintiff cannot prevail on the 6 merits as to the claims against these Defendants; 7 b. Defendants’ motion be denied as to the merits of Plaintiff’s claims against Defendant Whitcome; 8 c. Defendants’ motion be granted as to Plaintiff’s claims against 9 Defendants Whitcome and Brackett, as well as the portion of his claim against defendant Joksch based on denial of a sack lunch, because such claims are 10 unexhausted; 11 d. Defendants’ motion as to qualified immunity is denied; 12 e. Defendants’ motion be granted as to Defendant Hogan for failure to state a claim; 13 14 2. This action will proceed on the following claims against Defendant Joksch: 15 a. Plaintiff’s Eighth Amendment claim against Defendant Joksch based on the cell move ordered on September 8, 2014; and 16 b. Plaintiff’s First Amendment retaliation claim against 17 Defendant Joksch based on the cell move ordered on September 8, 2014. 18 These findings and recommendations are submitted to the United States District 19 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 20 after being served with these findings and recommendations, any party may file written objections 21 with the court. Responses to objections shall be filed within 14 days after service of objections. 22 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 23 Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 25 Dated: March 22, 2021 ____________________________________ 26 DENNIS M. COTA 27 UNITED STATES MAGISTRATE JUDGE 28 33