(PC) Villery v. Jones ( 2022 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 JARED M. VILLERY, Case No. 1:15-cv-01360-DAD-HBK (PC) 13 Plaintiff, ORDER GRANTING DEFENDANT NELSON’S REQUEST FOR JUDICIAL NOTICE 14 v. (Doc. No. 85-5) 15 JAY JONES, RICHARD SCHMIDT, CHRISTOPHER YERTON, RAFAEL FINDINGS AND RECOMMENDATIONS TO 16 ESCARCEGA, and DAVID NELSON, GRANT DEFENDANT NELSON’S MOTION FOR SUMMARY JUDGMENT1 17 Defendants. (Doc. No. 85) 18 FOURTEEN-DAY OBJECTION PERIOD 19 20 21 Pending before the Court is Defendant Nelson’s motion for summary judgment filed on 22 June 22, 2020.2 (Doc. No. 85, “MSJ”). Defendant Nelson requests the Court to take judicial 23 notice of the California Code Regs. Tit. 15 section 3269 which were in effect at the time of the 24 incident and is pertinent to Plaintiff’s claim against Nelson. (Doc. No. 85-5). Plaintiff received a 25 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 26 (E.D. Cal. 2022). 27 2 A separate motion for summary judgment is pending the Court’s review filed on behalf of Defendants Schmidt, Jones, and Escarcega. (Doc. No. 129, MSJ). The Court will address these Defendants’ MSJ by a 28 separate findings and recommendations. 1 Rand3 warning and multiple extensions of time, but did not file a response in opposition to 2 Defendant Nelson’s MSJ. (See docket). 3 The undersigned grants Defendant Nelson’s request for judicial notice. Finding no 4 genuine dispute as to any material facts, the undersigned recommends the district court grant 5 Nelson’s MSJ on Plaintiff’s First Amendment retaliation claim. 6 I. PROCEDURAL HISTORY AND SUMMARY OF OPERATIVE PLEADING 7 Plaintiff Jared M. Villery, a state prisoner, initiated this action by filing a pro se civil 8 rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff is proceedings on his on 9 his First Amended Complaint filed on May 26, 2017. (Doc. No. 16, “FAC”). On November 13, 10 2017, the previously assigned magistrate judge issued findings and recommendations on the FAC 11 finding it stated various cognizable First Amendment retaliation claims against Defendants Jones, 12 Schmidt, Yerton, Escarcega, and Nelson, but no other claims. (See generally Doc. No. 19 at 1- 13 18). In short, the findings and recommendations found cognizable First Amendment retaliation 14 claims stemming from the following incidents, involving the following Defendants, including 15 Nelson: 16 (1) against Jones and Schmidt stemming from the January 21 and January 22, 2014 attempt to move Plaintiff to administrative 17 segregation and threat to bring disciplinary proceedings; 4 18 (2) against Jones and Schmidt stemming from the January 27, 2014 false disciplinary report; 19 (3) against Jones for denial of access to the law library; 20 (4) against Schmidt stemming from a June 29, 2017 threat to file a 21 false disciplinary charge if Plaintiff filed another complaint against Schmidt; 22 (5) against Schmidt, Yerton, and Escarcega stemming from a threat 23 to change Plaintiff’s housing assignment to a double cell with inmate Cedric Jones and then ultimately facilitating a housing transfer for 24 25 3 Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1988)(en banc) 4 The findings and recommendations noted: “[b]oth the attempted move to Administrative Segregation and 26 the threat of disciplinary charges are threats which would chill First Amendment activity. . . Furthermore, the pleadings suggest no legitimate penological purpose for Defendants’ [Schmidt and Jones] conduct. 27 While it is not entirely clear that Plaintiff’s discussion with mental health care providers is protected conduct, this uncertainty likewise means that the Court cannot conclude that the allegations fail to state a 28 claim on that basis.” (Doc. No. 19 at 12)(citations omitted). 1 Plaintiff to be housed with Jones; 2 (6) against Nelson related to the same housing transfer with inmate Cedric Jones to the extent Nelson escorted him; and 3 (7) against Jones regarding his March 20, 2014 refusal to forward 4 Plaintiff’s inmate grievance because he thought Plaintiff was a liar. 5 (Id. at 9-18) (emphasis added). The district court adopted the findings and recommendations in 6 full on January 23, 2018. (Doc. No. 23). Plaintiff proceeds on his FAC on the above claims 7 deemed cognizable at screening. 8 Pertinent for consideration of Defendant Nelson’s MSJ is Plaintiff’s sole claim against 9 Nelson—a First Amendment retaliation claim for Nelson’s involvement in housing Plaintiff with 10 inmate Cedric Jones. The factual allegations in support of Plaintiff’s First Amendment retaliation 11 claim against Defendant Nelson are set forth infra. As relief, Plaintiff seeks compensatory 12 damages of $41,050, punitive damages of $180,000, costs of suit, and any other relief the Court 13 deems appropriate. (Doc. No. 16 at 21). 14 II. APPLICABLE LAW 15 A. Summary Judgment Standard 16 Summary judgment is appropriate when there is “no genuine dispute as to any material 17 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is 18 material where it is (1) relevant to an element of a claim or a defense under the substantive law 19 and (2) would affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 20 247 (1987). 21 The party moving for summary judgment bears the initial burden of proving the absence 22 of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When 23 the moving party has met this burden, the nonmoving party must go beyond the pleadings and set 24 forth specific facts, by affidavits, deposition testimony, documents, or discovery responses, 25 showing there is a genuine issue that must be resolved by trial. See Fed. R. Civ. P. 56(c)(1); 26 Pacific Gulf Shipping Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 27 2021). A mere “scintilla of evidence” in support of the nonmoving party’s position is 28 insufficient. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Rather, the 1 evidence must allow a reasonable juror, drawing all inferences in favor of the nonmoving party, 2 to return a verdict in that party’s favor. Id. 3 A court must view the evidence in the light most favorable to the nonmoving party. 4 Tolan v. Cotton, 572 U.S. 650, 655 (2014). It may not weigh evidence or make credibility 5 determinations. Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017). Conclusory or 6 speculative testimony in affidavits and supporting papers is insufficient to raise a genuine issue 7 of fact and defeat summary judgment. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 8 (9th Cir. 2007); see Fed. R. Civ. P. 56(c)(2). Furthermore, the Ninth Circuit has “held 9 consistently that courts should construe liberally motion papers and pleadings filed by pro se 10 inmates and should avoid applying summary judgment rules strictly.” Soto v. Sweetman, 882 11 F.3d 865, 872 (9th Cir. 2018) (quoting Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 12 2010)). 13 B. First Amendment Retaliation 14 To prevail on a retaliation claim under the First Amendment, a plaintiff must show five 15 requisite elements: (1) he was engaged in a protected conduct; (2) the defendant took adverse 16 action against the plaintiff; (3) a causal connection between the adverse action and the protected 17 conduct; (4) the official’s acts would chill a person of ordinary firmness from future exercise of 18 First Amendment rights; and (5) the action taken by the officials did not reasonably advance a 19 legitimate correctional goal. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); see also 20 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 21 Filing an inmate grievance is protected conduct. Rhodes, 480 F.3d at 568. 22 Correspondingly, threatening to file an inmate grievance has been deemed protected conduct by 23 the court. See Gleason v. Placensia, Case No. 1:19-cv-539-LJO-EPG, 2020 WL 3497001, at *3 24 (June 29, 2020 E.D. Cal. 2020)(citations omitted)(recognizing courts have considered a request to 25 obtain a grievance form or merely threatening to file a grievance within the purview of actions 26 protected by the First Amendment). Regarding the second element, the adverse action taken 27 against the prisoner “need not be an independent constitutional violation. The mere threat of 28 harm can be an adverse action.” Watison, 668 F.3d at 1114 (internal citations omitted). The 1 causal connection between the adverse action and the protected conduct can be inferred from the 2 chronology of events. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). But, depending on the 3 facts presented, mere timing of events may not be sufficient to establish causation. (Id.). 4 Evaluation of a retaliation claim by a prisoner must be evaluated in light of concerns over 5 “excessive judicial involvement in day-to-day prison management, which ‘often squander[s] 6 judicial resources with little offsetting benefit to anyone.’ ” Pratt v. Rowland, 65 F.3d 802, 807 7 (9th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). Courts must “ ‘afford 8 appropriate deference and flexibility’ to prison officials in the evaluation of proffered legitimate 9 penological reasons for conduct alleged to be retaliatory.” Id. (quoting Sandin, 515 U.S. at 482). 10 III. ANALYSIS 11 The undersigned has carefully reviewed and considered all arguments, points and 12 authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, 13 objections, and other papers filed by the parties. The omission to an argument, document, paper, 14 or objection herein is not to be construed that the undersigned did not consider the argument, 15 document, paper, or objection. Instead, the undersigned thoroughly reviewed and considered the 16 evidence it deemed admissible, material, and appropriate for purposes of issuing these Findings 17 and Recommendations on Defendant Nelson’s MSJ. 18 A. Allegations of First Amendment Retaliation in Plaintiff’s FAC 19 The incidents giving rise to the claim occurred after Plaintiff was transferred to California 20 Correctional Institution (“CCI”) in early 2014 and he “began initiating grievances” against 21 Captain Jay Jones, another named defendant. (Doc. No. 16 ¶2 ). Plaintiff suffers from PTSD, 22 which “creates significant problems between him and other inmates who are forced to share 23 living quarters” with him. (Id. ¶16). Specifically, Plaintiff claims his PTSD “could lead to 24 violence between him and potential future cellmates.” (Id. ¶17). Plaintiff met with Defendant 25 Schmidt on January 21, 2014 and Schmidt told Plaintiff there is no single cell housing available, 26 accused Plaintiff of “making threats” and ordered Plaintiff placed in administrative segregation 27 28 1 (“Ad-Seg”) (Id. ¶¶18-19).5 Because there was no space in Ad-Seg, Schmidt directed Plaintiff to 2 be returned to his cell until a space opened in Ad-Seg. (Id. ¶20). Defendant Nelson returned 3 Plaintiff to his cell, advised him that he was “pending Ad-Seg status” and could not leave his cell, 4 and logged this information in the log book. (Id. ¶17). The remaining facts involving Nelson in 5 the FAC are limited and involve only Nelson’s involvement concerning Plaintiff’s housing with 6 inmate Cedric Jones (“inmate Cedric”) six and seven months later, in June and July of 2014. 7 Plaintiff and inmate Cedric were first housed together on June 18, 2014. (Id. ¶ 34). 8 Inmate Cedric was moved into Plaintiff’s cell. (Id.). Plaintiff describes inmate Cedric as having 9 “severe mental health problems,” demonstrating “erratic behavior” and suffering from “severe 10 paranoia and delusions.” (Id.).6 Plaintiff alleges inmate Cedric asked the housing unit officers to 11 move him from Plaintiff’s cell. (Id. ¶ 35). Plaintiff alleges he “pleaded with” Defendant Nelson 12 to move inmate Cedric every day “before [he and inmate Cedric] got into a fight” but Nelson 13 refused and told him inmate Cedric would only be moved “after they got into a fight.”7 (Id.). 14 Plaintiff and inmate Cedric remained housed together for eight days and “nearly got into an 15 altercation every day.” (Id. ¶ 36). Plaintiff states he only slept while inmate Cedric was in the 16 yard or dayroom causing him to suffer sleep deprivation. (Id.). On June 26, 2014, Plaintiff 17 handed a “complaint”8 to Nelson “to be delivered to Defendant Jones.” (Id. ¶ 34). Initially 18 Nelson refused to send the complaint but then acquiesced. (Id. ¶ 37). Floor Officer Lindsey 19 moved Plaintiff on June 28, 2014. (Id. ¶¶ 37, 40). Plaintiff complains that officials should have 20 moved inmate Cedric instead because Plaintiff had a job assignment in Unit Two. ((Id.). 21 After his move, Defendant Schmidt called Plaintiff to his office and threatened to move 22 Plaintiff back with inmate Cedric. (Id. ¶ 42). Defendants Escarcega and Yerton summoned 23 24 5 The FAC includes additional claims related to Schmidt’s alleged threat to place Plaintiff in Ad-Seg. Because these claims do not involve Defendant Nelson, the undersigned omits the facts as to Plaintiff’s 25 other claims against the other Defendants. 6 In his deposition, Plaintiff claims inmate Cedric would pace, stand over him mumbling, talk loud to 26 himself and accuse him of “crazy shit.” (Doc. No. 85-4, 16:22-25). 7 Defendant Nelson denies ever making this statement or other statements alleged by Plaintiff or ever 27 being hostile to Plaintiff. (Doc. No. 85-4, 19:12-17; 24:12-13). The undesigned deems these facts, albeit disputed, not material for purposes of this summary judgment motion. 28 8 The “complaint” was actually a Form 22 requesting a housing move. 1 Plaintiff to the sergeants’ office after Plaintiff’s family reached out to an ombudsman. (Id. ¶ 43). 2 After a heated exchange of words, Defendants Escarcega and Yerton threatened to move Plaintiff 3 back into a cell with inmate Cedric. (Id. ¶¶ 44, 45). 4 On July 22, 2014, Plaintiff submitted a complaint to officer Ryan Miller about being 5 moved from Unit Two because it caused him to lose his porter job. (Id. ¶ 46). On July 24, 2014, 6 Defendant Nelson moved Plaintiff back into a cell with inmate Cedric. (Id. ¶¶ 46, 48). 7 According to Plaintiff, Defendants Schmidt, Escarcega and Yerton “facilitated the move” of 8 Plaintiff back into a cell with inmate Cedric through Nelson. (Id. ¶ 48). Plaintiff claims that his 9 placement back with inmate Cedric was not “mere coincidence.” (Id. ¶ 47). Plaintiff points out 10 that inmate Cedric was housed in cell 217, which is an upper tier unit, on the day of the move. 11 Because Plaintiff had medical restrictions that prevented him from being housed on in an upper 12 tier unit, inmate Cedric had to be first be moved to cell 148, a lower tier unit. The inmate who 13 had been living alone in unit 148 then had to be moved to cell 217 in the upper tier unit. Plaintiff 14 then was moved at 7:58 PM back into until 148 with inmate Cedric. (Id. ¶ 47). Less than an hour 15 after being moved back into the cell with inmate Cedric, Plaintiff submitted a complaint to 16 Nelson. Nelson told Plaintiff he should not have complained about his job and to file a 602. (Id. 17 ¶ 50). Plaintiff claims he and inmate Cedric had “confrontations in the cell every day, each time 18 almost resulting in a fight.” (Id. ¶ 51). Plaintiff sent letters to the ombudsman and the warden 19 and was moved three days later. 20 Plaintiff attributes liability to Defendant Nelson on the basis that Nelson was aware that 21 Plaintiff had previously been moved on June 28, 2014 “because of the danger [Plaintiff] was 22 placed in by living with [inmate] Cedric.” (Id. ¶ 49; see also Claim Six at 19 ¶¶ 87-91). Plaintiff 23 states that during the time he was housed with inmate Cedric he was “in constant fear’ and 24 suffered from ‘sleep deprivation.” (Id. ¶90). As relief, Plaintiff seeks compensatory and 25 punitive damages. (Id. at 21). 26 B. Judicial Notice of CDCR Regulation Governing Inmate Housing Assignments 27 Defendant Nelson requests the Court to take judicial notice of the law and regulations that 28 1 govern inmate housing assignments at CDCR institutions that were in effect in 2014, the 2 operative time of the events giving rise to Plaintiff’s claim. (Doc. No. 85-5). Specifically, 3 Defendant Nelson asks the Court to take judicial notice of the following section from the 4 California Administrative Code: 5 Inmates shall accept Inmate Housing Assignments (IHAs) as directed by staff. It is the expectation that all inmates double cell, 6 whether being housed in a Reception Center, General Population (GP), an Administrative Segregation Unit (ASU), a Security Housing 7 Unit (SHU), or specialty housing unit. If staff determines an inmate is suitable for double celling, based on the criteria as set forth in this 8 section, the inmate shall accept the housing assignment or be subject to disciplinary action for refusing. IHAs shall be made on the basis 9 of available documentation and individual case factors. Inmates are not entitled to a single cell assignment, housing location of choice, 10 or to a cellmate of their choice. 11 Cal. Code Regs. Tit. 15 § 3269 (2014). 12 Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not 13 subject to reasonable dispute” because they are either “generally known within the trial court’s 14 territorial jurisdiction,” or they “can be accurately and readily determined from sources whose 15 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court may take judicial 16 notice of a pertinent law or regulations at any stage of the proceedings. Id.; see also National 17 Agricultural Chemicals Assn. v. Rominger, 500 F.Supp. 465, 472 (E.D. Cal. 1980). The Court 18 may take judicial notice on its own or at the request of any party. Fed. R. Evid. 201(c). 19 Because the Court may take judicial notice of laws and regulations in effect at the time of 20 the incident, Defendant Nelson’s request is granted. The Court takes judicial notice of Section 21 3269 of the California Administrative Code that governed inmate housing assignments at CDCR 22 institutions in 2014. 23 C. Undisputed Facts 24 1. Plaintiff Filed No Opposition to Nelson’s MSJ 25 Despite reopening discovery and being provided with multiple extensions of time to 26 oppose Nelson’s MSJ, which was filed more than two years ago, Plaintiff did not an opposition. 27 (See Doc. Nos. 90, 98, 152, 160, 162). Nor did Plaintiff submit a separate statement of 28 undisputed facts consistent with Local Rule 260(a). A court may not automatically grant 1 summary judgment to a defendant solely because a plaintiff fails to properly oppose the motion. 2 See Fed R. Civ. P. 56(e)(2)-(3); Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013). 3 Where a plaintiff fails to properly support an assertion of fact or fails to challenge the facts 4 asserted by the defendant, the plaintiff may be deemed to have admitted the validity of those 5 facts. See Fed. R. Civ. P. 56(e)(2). A plaintiff’s verified complaint may be used to oppose 6 summary judgment, so long as it meets these standards. Schroeder v. McDonald, 55 F.3d 454, 7 460 (9th Cir. 1995); Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). 8 However, a complaint’s conclusory allegations, unsupported by specifics facts, will not be 9 sufficient to avoid summary judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 10 912, 922 (9th Cir. 2001). 11 Here, Plaintiff filed a verified FAC. (Doc. No. 16). To the extent the FAC contains 12 specific, admissible facts, the Court considers them. Additionally, the Court will consider the 13 entire record and deem true only those facts which are properly supported by evidence. A court 14 may grant an inadequately opposed motion for summary judgment if the supporting papers are 15 themselves sufficient to warrant granting the motion and do not on their face reveal a genuine 16 issue of material fact. See Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993). 17 2. Defendant’s Evidence 18 During all times relevant to the FAC, Plaintiff was an inmate in the custody of the 19 California Department of Corrections (“CDCR”) and incarcerated at CCI. (Doc. No. 16 at 2). 20 Plaintiff is serving a 28 year, 4-month sentence. (Doc. No. 85-4 at 126:22-24). At the time of the 21 alleged incident, Defendant Nelson was a sworn correctional officer employed by CDCR at CCI, 22 assigned to Housing Unit 2 in Facility C. (Doc. Nos. 16 at 3; 85-4 at 20:6-10). 23 In 2007, Plaintiff was diagnosed with PTSD at Kern Valley State Prison. Plaintiff 24 attributes his PTSD to “being stabbed by two white inmates… over [his] race” when he was on B 25 yard in Kern Valley State Prison. (Doc. No. 85-4 at 25:6-13). Plaintiff preferred to be housed 26 with black inmates. (Doc. No. 85-4 at 10:12-13). From 2008 to 2016, Plaintiff was not classified 27 for single cell status. (Doc. No. 85-4 at 31:16-18). 28 //// 1 a. June 2014 Housing 2 Sometime before June 2014, Plaintiff asked Nelson if he and inmate Hardin could house 3 together, as the two inmates had conversed about being cellmates for months. (Doc. No. 85-4 at 4 100:13-24; 106:1-9). On June 18, 2014, correctional officials housed Plaintiff in Charlie Yard 5 Unit 2 and assigned him a new cellmate named Cedric Jones. Nelson did he make this housing 6 decision nor participate in moving inmate Cedric into Plaintiff’s on this date. (Doc. No. 85-4 at 7 21 ¶14). 8 On June 26, 2014, Plaintiff complained to Defendant Nelson that he was having issues 9 with inmate Cedric. Plaintiff again requested to be housed with inmate Hardin. (Doc. No. 85-4 at 10 21 ¶15). Defendant Nelson researched both Plaintiff and inmate Cedric’s history and found 11 nothing to suggest they were incompatible. (Doc. No. 85-4 at 21 ¶16). Nelson also spoke with 12 inmate Cedric regarding Plaintiff’s stated concerns, to which inmate Cedric responded that he and 13 Plaintiff were getting along fine. (Id.). Nelson made unannounced observations of the cell when 14 both inmates were present and saw no tensions or problems. (Doc. No. 85-4 at 21 ¶17). Rather, 15 on one occasion they were playing dominoes and on another they were laughing and talking. 16 (Id). There were no observed or reported incidents of any altercations between Plaintiff and 17 inmate Cedric during this time period. (Doc. No. 85-4 at 24 ¶28). 18 Further, inmate Cedric and Plaintiff had no documented history of in-cell violence at this 19 time. Plaintiff and inmate Cedric were not documented enemies and both inmates were double 20 cell cleared and race eligible. (Doc. No. 85-4 at 21 ¶16). Inmate Cedric is white. (Doc. No. 85-4 21 at 33). 22 On June 26, 2014, Defendant Nelson accepted a Form 22 from Plaintiff requesting a cell 23 move, stating he and inmate Cedric were not compatible. A review of Plaintiff’s Form 22 reveals 24 it was not directed against any specific staff-members and requested a cell move because of the 25 “numerous instances of near violence due to [Plaintiff’s] own mental issues and mental instability 26 of [his] cellmate.” (Doc. No. 85-4 at 27; see also Doc. No. 85-4 at 21 ¶18). The form is titled 27 “INMATE/PAROLEE REQUEST FOR INTERVIEW, ITEM OR SERVICE.” (Doc. No. 84-4 at 28 27). In the form, Plaintiff stated he would be “more compatible” with inmate Hardin. (Doc. No. 1 85-4 at 21 ¶ 18). Plaintiff states he has apprised “staff” “on multiple occasion” of his “problems” 2 with inmate Cedric. (Doc. No. 85-4 at 27). The only place Defendant Nelson’s name appears on 3 the form is in the section showing the form was received by him. (Id.). Per standard operating 4 procedures, Defendant Nelson placed the Form 22 in the institutional mail. (85-4 at 21 ¶ 18). 5 Defendant Nelson did not consider the Form 22 a complaint about him. (Id). 6 Two days later, on June 28, 2014, correctional officials approved a cell move for Plaintiff 7 to Housing Unit 3, cell 145. (Doc. No. 85-4 at 27). Nelson first learned about the move when he 8 returned to work on June 29, 2014. (Doc. No. 85-4 at 22, ¶ 19). Nelson was not involved in the 9 move, nor was he told the reason for the move. (Id.). Due to the housing move, Plaintiff lost his 10 position as a second watch porter and filed a complaint about same. (Doc. Nos. 16 at 19; 85-4 at 11 22; 130 at 107:9-15). 12 b. July 2014 Housing 13 On July 24, 2014, Captain Jay Jones instructed Defendant Nelson to find housing in Unit 14 2 for Plaintiff, so Plaintiff could resume his second watch porter position. (Doc. No. 85-4 at 22 15 ¶20). Unit 2 was close to full at the time, “making it difficult to unilaterally move an inmate.” 16 Defendant Nelson learned all other inmates in Unit 2 were getting along with their cellmates and 17 examined all available housing option in Unit 2 “with the considerations including the 18 functioning programming going on throughout the unit.” (Id.). A copy of the available bed 19 inventory dated July 30, 2014 for Unit 2 is attached to Nelson’s declarations. (Doc. No. 85-4 at 20 29-33). The inventory reveals 6 vacant beds, 5 of which are upper bunks. (Id.). The sole lower 21 bunk in 114 did not become available on July 29, 2014, which was five days after Plaintiff had 22 been moved. (Id). 23 Nelson identified two potential cellmates available in Unit 2: inmate Cedric or an inmate 24 who was a “Southern California Skinhead” who had a lower-bunk medical limitation. Plaintiff 25 also had a lower-bunk medical limitation and thus could only have a cell mate who had no issues 26 with being assigned a top bunk. (Doc. No. 85-4 at 22 ¶21). There was no evidence in the record 27 to suggest that there was a conflict or reason why Plaintiff and inmate Cedric could not be housed 28 together. Inmate Cedric and Plaintiff were not documented enemies. (Doc. No. 85-4 at 22-23 1 ¶21). 2 Defendant reviewed the confidential and miscellaneous files for Plaintiff and inmate 3 Cedric and both inmates’ history of aggression. Nelson found nothing had changed since they 4 were previously housed together. In reviewing the files, Defendant Nelson saw Plaintiff’s June 5 28, 2014 housing change was simply noted as a “cell swap” and there was no notation that 6 Plaintiff could not be rehoused with inmate Cedric. Nelson personally witnessed on his 7 unannounced visits in June 2014 “both inmates sitting together on the lower bunk, laughing and 8 playing dominoes.” (Doc. No. 85-4 at 22-23 ¶21). 9 Sergeant Ignacia Vera reviewed and approved a Bed Request Batch for inmate Cedric’s 10 move into Cell 148. Meanwhile, another correctional officer issued a Bed Bath Request 11 concerning Unit 3 to move Plaintiff to Unit 2, Cell 148. Sergeant Davis reviewed and approved 12 that Bed Bath Request. Central Control then reviewed and processed the Bed Request Batch, and 13 Plaintiff and inmate Cedric were moved that day on July 24, 2014. (Doc. No. 85-4 at 23 ¶24). 14 On July 24, 2014, Nelson escorted Plaintiff to a cell located in Building 2, where inmate 15 Cedric already was located. Plaintiff did not refuse to enter the cell with inmate Cedric. Instead, 16 he went into the cell without saying a word and was not forced in any way. (Doc. No. 85-4 at 23 17 ¶22). Had Plaintiff refused to enter the cell, Nelson would not have required him to enter the cell 18 and instead would have placed him in the dayroom and alerted a supervisor. (Id.). 19 Defendant Nelson had no decision-making authority as to Plaintiff’s safety Classification 20 or his housing restriction. (Doc. No. 85-4 at 21-22 ¶18; 23 ¶21). At his deposition, Plaintiff 21 agreed that his cell move had to be approved by Defendant’s superior officer and acknowledged 22 Defendant Nelson did not make the decision on his own “but would have had to come from the 23 top.” (Doc. No. 85-4 at 14:1-9). Defendant Nelson adhered to CDCR regulations and CDCR’s 24 operations manual when evaluating where to rehouse Plaintiff. (Doc. No. 85-4 at 24-24, ¶30). 25 On July 24, 2014, Plaintiff submitted a Form 22, complaining about being placed back 26 into a cell with inmate Cedric. This Form 22 was accepted and processed according to CDCR 27 rules and regulations. (Doc. No. 85-4 at 35). On August 11, 2014, Plaintiff filed a 602 against 28 Defendant Nelson. (Doc. No. 85-4 at 15:3-7). Plaintiff had not previously filed a grievance 1 against Defendant Nelson prior to this date. (Id.). Defendant Nelson denies moving Plaintiff into 2 a cell with inmate Cedric or making any housing decisions involving Plaintiff for retaliatory 3 reasons. (Doc. No. 85-4 at 19 ¶5). 4 On July 30, 2014, correctional officials moved Plaintiff from the cell with inmate Cedric. 5 Nonetheless, the two continued to live in the same housing unit without incident. On November 6 23, 2014, correctional officials moved Plaintiff to a different housing unit. (Doc. No. 85-4 at 24 7 ¶28). 8 D. Defendant Nelson is Entitled to Summary Judgment 9 First, the undersigned considers whether Plaintiff demonstrates he was engaged in 10 protected conduct. Admittedly Plaintiff’s grievances lodged against other correctional officials 11 are protected conduct, but Plaintiff did not lodge a grievance against Defendant Nelson until 12 August 11, 2014—after he was moved from his second housing placement with inmate Cedric. 13 The Form-22 that Plaintiff delivered to Defendant Nelson on June 29, 2014 was an Inmate 14 Request form. Defendant Nelson’s name appears solely on the form as the person who accepted 15 the form. The undersigned is constrained to find that Plaintiff’s grievances against Defendant 16 Jones qualifies as protected conduct since there is no evidence that Defendant Nelson was aware 17 of those grievances. Nonetheless, even if the undersigned assumes for purposes of these findings 18 and recommendations that Plaintiff meets the first element of showing protected conduct due to 19 Plaintiff filing grievances against other correctional officials, Plaintiff fails to show that Nelson’s 20 limited involvement in Plaintiff’s housing assignments with inmate Cedric for the period of June 21 18, 2014 through June 28, 2014 and the period of July 24, 2014 through July 30, 2014 were done 22 for retaliatory purposes. 23 1. June 18-24, 2014 Housing Assignment 24 Plaintiff was first housed with inmate Cedric for six days, from June 18 through 24. (Doc. 25 No. 16 at 7-8). It is undisputed that another correctional officer, who is not named as a defendant, 26 moved Jones into Plaintiff’s cell on June 18, 2014. (Doc. No. 85-4 at 106:10-18). 27 In his FAC, Plaintiff claims some six months earlier, in January 2014, he told a mental 28 health counselor that he suffered from PTSD and should not have a cellmate. (Doc. No. 16 at 4). 1 Defendants Schmidt learned of Plaintiff’s statements that he was concerned he would hurt a 2 cellmate due to his PTSD. Defendants Jones and Schmidt accused Plaintiff of trying to 3 manipulate his housing assignment. (Id. at 4-5). Plaintiff received a disciplinary report regarding 4 same, was later found not guilty, but had also been placed in administrative segregation. (Id. at 4- 5 6). It is undisputed that Nelson was not involved in any way with Plaintiff’s June 18, 2014 6 housing assignment with inmate Jones. (See generally Doc. Nos. 16 at 4, 7-9; 85-4 at 106:11-18). 7 The only issue Plaintiff attributes to Nelson concerning the June 18 placement was not 8 moving him sooner from the cell after he voiced his complaints to him. The undisputed evidence 9 demonstrates that Nelson had no authority to change Plaintiff’s classification status or effectuate a 10 housing move for any inmate. The first time Nelson was made aware of any issue between 11 Plaintiff and inmate Jones was on June 26, 2014, when Plaintiff verbally complained to Nelson 12 about inmate Cedric and requested he instead be housed in the same cell with inmate Hardin. 13 (Doc. No. 85-4 at 21 ¶15). The record reveals, Plaintiff submitted a Form-22 Inmate Request 14 asking for a housing move from inmate Cedric thereafter. (Doc. No. 85-4 at 27). Although not 15 clearly legible, it appears Nelson received the grievance on either June 26, 2014 or June 28, 2014. 16 (Doc. No. 85-4 at 27). Plaintiff states he gave Nelson the Inmate Request form on June 26, 2014. 17 Plaintiff complained he was incompatible with inmate Cedric, citing “near instances” of physical 18 violence due to his own mental instability and his cellmate’s mental instability. (Id.). Plaintiff 19 further wrote that he believed he was housed with inmate Cedric in retaliation since he had 20 submitted a grievance about Captain Jones just seven days before. (Id.). The grievance itself 21 does not allege any misconduct by Defendant Nelson. As noted earlier, Defendant Nelson’s 22 name only appears on the Inmate Request form because he was the correctional officer who 23 received it and transferred the form to the proper correctional officials for response. 24 On June 29, 2014 correctional officials authored a response to Plaintiff’s Request, 25 “partially granting” it to the extent Plaintiff was re-located to a different cell on June 28, 2014. 26 (Id.). According to Nelson’s declaration, when he returned to work on June 28, 2014, Plaintiff 27 was no longer housed with inmate Cedric. (Doc. No. 85-4 at 22 ¶19). 28 The undisputed record evidence reveals no causal connection as to Defendant Nelson’s 1 involvement and the placement of inmate Cedric in Plaintiff’s cell on June 14, 2014. Irrefutably, 2 an inmate grievance is protected activity under the First Amendment. Rhodes, 408 F.3d at 567, 3 Even if the Inmate Request form can be deemed a grievance to warrant protection under the First 4 Amendment, Plaintiff gave the Inmate Request form to Defendant Nelson after Plaintiff was 5 already housed with inmate Jones. The timing of the grievance belies any retaliatory intent 6 because Plaintiff was already in the cell with inmate Cedric when Plaintiff submitted the 7 grievance. See Pratt, 65 F.3d at 808 (timing can properly be considered as circumstantial 8 evidence of retaliatory intent); Rivers v. Roszko, 2008 WL 3932446 *9 (E.D. Cal. Aug. 26, 9 2008)(noting timing of grievance after the alleged retaliatory transfer belies any retaliatory 10 motive). Although Plaintiff claims Nelson called the Inmate Request form “bullshit” and told 11 him he would not send it to the Captain, the record belies this claim. The record shows Nelson 12 did timely forward the Inmate Request form for review to appropriate officials, as it was 13 thereafter partially granted, resulting in Plaintiff’s housing transfer to a different cell away from 14 inmate Cedric two days later. 15 To the extent Plaintiff faults Nelson for not moving him sooner from the cell, as noted, the 16 record is undisputed that Nelson did not have authority to unilaterally transfer or move inmates. 17 Even if the Court accepts Plaintiff’s claim that he and inmate Cedric “nearly” got into an 18 altercation every day, it is undisputed that the inmates never exchanged in any fisticuffs. (Doc. 19 No. 16 at 8). Considering the undisputed facts of record, Nelson is entitled to summary judgment 20 because there is no genuine dispute of material fact concerning Plaintiff’s retaliation claim as to 21 Nelson involving the June 18 to June 28 housing assignment with inmate Cedric. 22 2. July 24, 2014 Housing Assignment 23 Plaintiff admits in his FAC that he requested a housing change back to Unit 2 after he was 24 moved on June 28, 2014 from Unite 2 because he lost his job as a second watch porter. It also 25 undisputed that, on July 24, 2014, Defendant Captain Jones directed Defendant Nelson to find 26 housing for Plaintiff back in Unit 2, so Plaintiff could resume his job as a second watch porter. 27 Thus, the decision to move Plaintiff back to Unit 2 was precipitated not by Nelson, but by 28 Plaintiff’s desire to resume his position as a second watch porter. 1 The uncontroverted evidence reveals housing in Unit 2 was limited and even more so due 2 to Plaintiff’s medical pass requiring that he be placed in a low bunk. The documents show that on 3 July 24, 2014, only two housing options existed in in Unit 2: (1) placement back with inmate 4 Cedric; or (2) placement with an inmate who was a “Southern California Skinhead,” who had a 5 low bunk pass thereby precluding Plaintiff’s placement with him. Nelson believed the “only 6 feasible” move to get Plaintiff into Unit 2 while accommodating Plaintiff’s low bunk restrictions 7 and maintaining functioning programming was to place Plaintiff back with inmate Cedric. 8 Nelson issued the Bed Request Batch for inmate Cedric to be moved into Cell 148, which was 9 approved by Sergeant Ignacio Vera. A different correctional official then issued a separate Bed 10 Batch Request for Plaintiff to move from Unit 3 to Unit 2, Cell 148, which was reviewed and 11 approved by Sergeant Davis. Central Control then reviewed and processed both Bed Request 12 Batches and Plaintiff and inmate Cedric were moved to the same cell on July 24, 2022. 13 On the same day of his move—July 24, Plaintiff filed another Form-22 Inmate Request 14 form and delivered it to Defendant Nelson complaining about his rehousing with inmate Cedric 15 and requesting a cell change. (Doc. No. 85-4 at 35). Nelson responded in writing that same day 16 that the move was done to accommodate Plaintiff, that inmate Cedric and Plaintiff were “racially 17 compatible,” and they were not “confidential enemies.” (Id.). 18 Based on this record, Plaintiff has not presented evidence sufficient to overcome Nelson’s 19 evidence that the placement of Plaintiff back into a cell with inmate Cedric was not done for 20 legitimate penological reasons. Pratt v. Rowland, 65 F.3d at 807. To the contrary, Plaintiff 21 acknowledges he did not file a grievance concerning Nelson’s actions until August 11, 2014. By 22 August 11, 2014, Plaintiff was no longer housed with inmate Cedric, but remained on Unit 2 in a 23 different cell. While Plaintiff maintains his re-housing assignment with inmate Cedric was done 24 for retaliatory purposes, the undisputed record evidence shows there was no protected speech 25 involving Nelson as the impetus behind the alleged retaliatory housing assignment. Like the June 26 housing assignment, the timing of the grievance belies the retaliatory motive because the 27 grievance came after the housing assignment. Further, the impetus behind moving Plaintiff back 28 to Unit 2, was to accommodate Plaintiff’s requests to continue his job as a porter in Unit 2. At 1 the time of the events, Plaintiff was cleared for double-celling, preferred a black cellmate and had 2 a lower bunk pass. Nelson has presented an alternative, legitimate penological reason for 3 Plaintiff’s housing assignment: there were no other available double cells in Unit 2 with low bunk 4 accommodations with a race compatible cellmate other than inmate Cedric. Clearly legitimate 5 penological interests will defeat a retaliation claim. See Barnett v. Centoni, 31 F.3d 813, 815 (9th 6 Cir, 1994); Bruce v. Ylst, 351 F.3d 1283-89-90 (9th Cir. 2003). Nelson presents undisputed 7 evidence that the housing move was motivated by Plaintiff’s desire to work as a porter, cell 8 availability and maintaining institutional and programming efficiency. Further, the Court is to 9 “‘afford appropriate deference and flexibility’ to prison officials in the evaluation of proffered 10 legitimate penological reasons for conduct alleged to be retaliatory.” Pratt v. Rowland, 65 F.3d at 11 807 (quoting Sandin, 515 U.S. at 482). Plaintiff does not come forward with evidence to dispute 12 Nelson’s evidence that no other housing assignment was available. And, the timing of the events 13 again belies any retaliatory intent. 14 As Defendant Nelson argues, double celling of Plaintiff with inmate Cedric does not 15 constitute “adverse action” based on the undisputed facts presented. Pursuant to Cal. Code Regs. 16 Tit. 15, § 3269, inmates are not entitled to single cell housing and in fact the norm is double 17 celling. Nor are inmates entitled to a cell of their choice or a cellmate of their choice. The First 18 Amendment inquiry asks, “whether an official’s acts would chill or silence a person of ordinary 19 firmness from future First Amendment activities.” Because double celling is the norm, chilling of 20 First Amendment rights based on the double cell assignment present here defies logic. 21 Significantly, the undersigned is not recommending that a plaintiff may never have a retaliation 22 claim based on a housing decision, but the undisputed facts present in this record as it pertains to 23 Nelson are not sufficient. Mere speculation that Defendant Nelson acted out of retaliation is not 24 sufficient. Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). Specific evidence of retaliation is 25 required. McCollum v. Cal. Dep’t of Corr. & Rehab., 674 F.3d 870, 882 (9th Cir. 2011). Based 26 on the undisputed material facts, Nelson is entitled to summary judgment because there is no 27 genuine dispute of material fact surrounding Nelson’s proffered reasons for moving Plaintiff into 28 a cell with inmate Cedric on July 24, 2014. 1 E. Qualified Immunity 2 In the alternative, Defendant Nelson asserts the defense of qualified immunity. (Doc. No. 3 85-2 at 20-22). Nelson argues he had no notice based on existing law that housing Plaintiff with 4 inmate Cedric would violate clearly established law. To the contrary, Nelson maintains his 5 actions complied with the CDCR regulations governing inmate housing assignments. (Id. at 21). 6 Qualified immunity shields government officials from money damages unless their 7 conduct violated “clearly established statutory or constitutional rights.” Kisela v. Hughes, 138 S. 8 Ct. 1148, 1152 (2018); accord Felarca v. Birgeneau, 891 F.3d 809, 815 (9th Cir. 2018). To 9 overcome the heavy burden of qualified immunity, Plaintiff must show that “(1) the official 10 violated a statutory or constitutional right, and (2) that the right was clearly established at the time 11 of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Qualified immunity 12 only becomes relevant if a court determines that a constitutional violation has occurred. 13 Because the undersigned has found the record presents no genuine dispute of material fact 14 on Plaintiff’s First Amendment retaliation claims as to Defendant Nelson, the undersigned need 15 not evaluate whether Nelson is entitled to qualified immunity. 16 Accordingly, it is ORDERED: 17 Defendant Nelson’s request for judicial notice (Doc. No. 85-5) is GRANTED. 18 Is if further RECOMMENDED: 19 The district court GRANT Defendant Nelson’s motion for summary judgment (Doc. No. 20 85) and dismiss Plaintiff’s First Amended Complaint against Defendant Nelson with prejudice. 21 //// 22 //// 23 //// 24 NOTICE TO PARTIES 25 These findings and recommendations will be submitted to the United States district judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 27 days after being served with these findings and recommendations, a party may file written 28 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 1 | Findings and Recommendations.” Parties are advised that failure to file objections within the 2 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 3 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 > | Dated: _ October 14, 2022 Mile. □□□ foareA Hack 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19