Martin v. Basnettt ( 2020 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 FLOYD AARON MARTIN, Case No. 17-cv-06263-YGR (PR) 5 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY 6 v. JUDGMENT 7 Z. BASNETT, et al., Defendants. 8 9 I. INTRODUCTION 10 Plaintiff Floyd Aaron Martin, a state prisoner currently incarcerated at the California State 11 Prison - Los Angeles County, has filed a pro se civil rights action under 42 U.S.C. § 1983. The 12 operative complaint in this action is the second amended complaint (“SAC”), in which Plaintiff 13 alleged constitutional rights violations at Pelican Bay State Prison (“PBSP”) where he was 14 previously incarcerated. Dkt. 11 at 4.1 In his SAC, Plaintiff has named the following Defendants 15 at PBSP: Sergeants Z. Basnett, K. Price, and S. Wright; Lieutenant Basso; Correctional Officers E. 16 Burr, E. Contreras, R. Scruggs, D. Trone,2 J. Pena, Kauffman, and Chavez; and John Doe. Id. at 2. 17 Plaintiff seeks declaratory relief as well as monetary and punitive damages. Id. at 11. 18 In an Order dated April 10, 2019, the Court found that the SAC stated cognizable claims of 19 retaliation, deliberate indifference, withholding mail, and violations of due process stemming from 20 incidents that occurred from December 2016 through February 2017 against Defendants Basnett, 21 Wright, Basso, Burr, Contreras, Scruggs, Trone, Kauffman, and Chavez (hereinafter 22 “Defendants”). Dkt. 12 at 2-5. The Court dismissed Plaintiff’s remaining claims, including 23 claims against Defendants Contreras, Pena, and Price relating to the October 10, 2017 “second cell 24 extraction.” Id. at 4. The dismissal was without prejudice to Plaintiff bringing them in separate 25 26 1 Page number citations refer to those assigned by the Court’s electronic case management filing system and not those assigned by the parties. 27 1 actions, either in state or federal court. Id. Also, the Court dismissed without prejudice Plaintiff’s 2 claims against the Doe Defendant (i.e., “John Doe”). Id. 3 The parties are presently before the Court on Defendants’ motion for summary judgment. 4 Dkt. 24. Plaintiff has filed an opposition to Defendants’ motion, and Defendants have filed a 5 reply. Dkts. 28, 30. Having read and considered the papers submitted and being fully informed, 6 the Court hereby GRANTS Defendants’ motion for summary judgment. 7 II. FACTUAL BACKGROUND 8 A. Plaintiff’s Version 9 On December 28, 2016, Defendants Burr, Contreras, and Basnett retaliated against 10 Plaintiff because he would not provide the code to a cell phone (that was found in Plaintiff’s cell) 11 by taking or destroying his property without due process, including his “religious material that 12 [he] was mandated to have as he was the Chapel clerk/Inmate Minister teaching classes,” 13 confidential legal documents, canteen food, utensils, hygiene, mail, stationery, linen, clothing and 14 cleaning supplies “without penological interest, but to collusively harass[,] intimidate and retaliate 15 against Plaintiff.” Dkt. 11 at 4. Plaintiff filed a grievance related to the aforementioned “illegal 16 taking of [his] state and personal property,” and he claims that in retaliation for his filing his 17 grievance, the following occurred: (a) on January 10, 2017, Defendants Burr and Contreras 18 threatened Plaintiff that he would be receiving a rule violation report for an “altered typewriter” 19 (id. at 6); (b) on February 3, 2017, Defendant Scruggs forwarded Plaintiff’s mail to Defendants 20 Burr and Contreras “and other [Investigative Services Unit (“ISU”)] members for [an] alleged 21 screening process” and refused to deliver Plaintiff’s mail (id. at 6); (c) on February 28, 2017, 22 Defendant Trone lied about Plaintiff’s mail being withheld (id. at 7); (d) on or around February 23 28, 2017, Defendants Basso, Kauffman, and Chavez retaliated against Plaintiff after he was 24 “interviewed by internal affairs” when Defendant Basso ordered searches and Defendants 25 Kauffman and Chavez conducted searches “at a minimum of 20 times during the process of 26 seeking redress” (id. at 9); and (e) in February 2017, Defendant Wright “investigated Plaintiff[’s] 27 retaliatory mail claim where [Defendant Wright] reported conflicting and contradictory findings to B. Defendants’ Version 1 1. December 28, 2016 Cell Search and Confiscation of Plaintiff’s Property 2 On December 28, 2016, Defendants Burr, Contreras, and Basnett, who are officers from 3 PBSP’s ISU, searched Plaintiff’s cell at the request of the Office of Internal Affairs. Burr Decl. 4 ¶ 6; Basnett Decl. ¶ 8; Shryock Decl., Ex. I (“Pl.’s Dep.”) at 66:23-67:8, 77:7-17. Plaintiff and his 5 cellmate were removed from their cell and placed in holding cells while the offices searched the 6 cell. Burr Decl. ¶ 8; Pl.’s Dep. at 73:7-10. While Plaintiff was in the holding cell, he was asked 7 for the code to a cell phone that was found during the search. Burr Decl. ¶ 6; Pl.’s Dep. at 77:7- 8 15, 78:15-25. Plaintiff did not provide the code—because Plaintiff claimed that he did not know 9 it. Burr Decl. ¶ 6; Pl.’s Dep. at 77:7-15, 78:15-25. Defendants Burr, Contreras, and Basnett then 10 placed all of Plaintiff’s and his cellmate’s personal property into trash bags and removed them 11 from the building to conduct a more thorough search. Burr Decl. ¶ 9; Basnett Decl. ¶ 8; Pl.’s Dep. 12 at 92:10-24. 13 Although Plaintiff’s clothing was confiscated, he obtained clothing and shoes from another 14 inmate immediately after the search. Pl.’s Dep. at 86:21-89:6. Plaintiff’s mattress was not 15 confiscated. Id. at 87:20-88:3, 89:7-90:20, 94:6-15. And although Plaintiff’s bedding was 16 confiscated, he received replacement sheets and a blanket the following day. Id. at 87:20-88:3, 17 89:7-90:20, 94:6-15. While Plaintiff’s cleaning and hygiene supplies were confiscated, 18 Defendants point out that hygiene and cleaning supplies are issued to inmates by building officers 19 one per week. Contreras Decl. ¶ 9; Pl.’s Dep. at 39:6-40:10. Typically, Plaintiff could have 20 requested additional supplies every couple of days from officers who worked in the building in 21 which he was housed. Contreras Decl. ¶ 9; Pl.’s Dep. at 39:6-40:1. After the search, Plaintiff 22 requested hygiene and cleaning supplies from the officers assigned to his building. Pl.’s Dep. at 23 89:7-91:12. The officers provided Plaintiff with toilet paper, but they were unable to provide him 24 with other hygiene and cleaning supplies because they were unavailable during the time his 25 property was temporarily confiscated. Id. at 89:7-91:12. During that time, Plaintiff was able to 26 borrow toothpaste from another inmate, and he was given the opportunity to shower regularly, 27 albeit with water only. Id. at 89:7-14, 95:22-96:1. 1 On January 2, 2017, Plaintiff submitted a California Department of Corrections and 2 Rehabilitation (“CDCR”) Form 22 Inmate Request for Interview, Item or Service (“CDCR Form 3 22”),3 asking when his property would be returned to him. Basnett Decl. ¶ 10; Pl.’s Dep. at 4 100:10-101:11. In response, Defendant Basnett attempted to give Plaintiff soap, toothpaste, 5 shampoo, and deodorant, but Plaintiff would not take it because it was his cellmate’s, not his. 6 Basnett Decl. ¶ 10; Pl.’s Dep. at 100:10-101:11. Two days after he submitted the CDCR Form 22, 7 on January 4, 2017, Plaintiff submitted an inmate appeal, log no. PBSP-17-00043, about the 8 confiscation of his personal property, and on January 10, 2017, his property was returned to him. 9 Spaich Decl. ¶ 12(a), Ex. D at 3; Royal ¶ 9(a), Ex. A at 3; Contreras Decl. ¶ 8 [Rules Violation 10 Report (“RVR”) for altered typewriter written on 1/10/2017]; Pl.’s Dep. at 106:23-108:9 [Property 11 returned the same day Plaintiff was told he would receive RVR for altered typewriter]; see also 12 Pl.’s Dep. 104:4-12. Plaintiff’s appeal was eventually denied at the third level of review. Spaich 13 Decl. ¶12(a), Ex. D at 1-3, 5; Royal Decl. ¶ 9(a), Ex. A at 3, 5. 14 2. February 1, 2017 Withholding of Plaintiff’s Mail by Defendant Scruggs 15 On February 1, 2017, Defendant Scruggs was sorting the mail in preparation to pass it out 16 to inmates, when he saw a flyer advertising “stamps for cash.” Scruggs Decl. ¶ 5. Because 17 Defendant Scruggs believed that this type of mail might not be allowed under the relevant 18 regulations, he forwarded the flyer to ISU for further review. Scruggs Decl. ¶¶ 4-6. The 19 forwarding of such mail to ISU is typical practice at PBSP if an officer is unsure about whether an 20 inmate is allowed to possess certain mail. Scruggs Decl. ¶¶ 4-6. Defendant Scruggs claims that 21 he withheld the “stamps for cash” flyer because he believed it was not permitted under the 22 governing regulations, and not for any other reason. Scruggs Decl. ¶ 9. 23 Defendant Scruggs told Plaintiff that he forwarded a piece of mail to ISU. Scruggs Decl. 24 ¶ 5; Pl.’s Dep. at 119:17-120:16. Plaintiff then requested a CDCR Form 1819—the form that is 25 typically given to an inmate when mail is withheld. Scruggs Decl. ¶¶ 4, 9; Pl.’s Dep. at 119:17- 26 120:16. Defendant Scruggs did not provide Plaintiff with the CDCR Form 1819. Scruggs Decl. 27 1 ¶¶ 4, 9; Pl.’s Dep. at 119:17-120:16. Defendant Scruggs believed that he did not need to provide 2 Plaintiff with that form, because Defendant Scruggs “believed that ISU would issue that form, or 3 direct him to issue it, if they decided [the flyer] was not permitted . . . .” Scruggs Decl. ¶¶ 4, 9. 4 However, if ISU determined the flyer was permitted, Defendant Scruggs believed that ISU would 5 “simply return the mail to [Plaintiff].” Scruggs Decl. ¶¶ 4, 9. 6 Several days later, after receiving a call from Defendant Scruggs about the flyer, 7 Defendant Trone checked ISU’s records of CDCR Form 1819s, and asked his ISU colleagues if 8 anyone recalled seeing the flyer or had stopped any of Plaintiff’s mail. Trone Decl. ¶¶ 4-5. From 9 his investigation, Defendant Trone determined that ISU has no record that any mail was withheld 10 from Plaintiff. Trone Decl. ¶¶ 4-5. 11 On February 8, 2017, Plaintiff submitted an inmate appeal, log no. PBSP-17-00305, about 12 his mail being withheld from him and Defendant Scruggs refusing to provide him with a CDCR 13 Form 1819. Spaich Decl. ¶ 12(b), Ex. E at 1-3, 5; Royal Decl. ¶ 9(b), Ex. B at 5. This appeal was 14 also subsequently denied at the third level of review. Spaich Decl. ¶ 12(b), Ex. E at 1-3, 5; Royal 15 Decl. ¶ 9(b), Ex. B at 5. 16 III. DISCUSSION 17 A. Legal Standard 18 Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment 19 on some or all of the claims or defenses presented in an action. Fed. R. Civ. P. 56(a)(1). “The 20 court shall grant summary judgment if the movant shows that there is no genuine dispute as to any 21 material fact and the movant is entitled to judgment as a matter of law.” Id.; see Anderson v. 22 Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of 23 establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 24 317, 323 (1986); Fed. R. Civ. P. 56(c)(1)(A) (requiring citation to “particular parts of materials in 25 the record”). If the moving party meets this initial burden, the burden then shifts to the non- 26 moving party to present specific facts showing that there is a genuine issue for trial. See Celotex, 27 477 U.S. at 324; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 1 The failure to exhaust administrative remedies is an affirmative defense that must be raised 2 in a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en 3 banc). The defendants have the initial burden to prove “that there was an available administrative 4 remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172; Williams v. 5 Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). If the defendants carry that burden, “the burden 6 shifts to the prisoner to come forward with evidence showing that there is something in his 7 particular case that made the existing and generally available administrative remedies effectively 8 unavailable to him.” Albino, 747 F.3d at 1172. The ultimate burden of proof remains with 9 defendants, however. Id. “If material facts are disputed, summary judgment should be denied, 10 and the district judge rather than a jury should determine the facts.” Id. at 1166. 11 A district court may only consider admissible evidence in ruling on a motion for summary 12 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 13 In support of the motion for summary judgment, Defendants have presented some of their own 14 declarations and supporting exhibits, i.e., Defendants Scruggs, Basnett, Contreras, Burr, and Trone 15 (dkts. 24-3 to 24-7) as well as declarations and supporting exhibits from the following: PBSP 16 Appeals Coordinator K. Royal (dkt. 24-1); Acting Chief of the Office of Appeals J. Spaich (dkt. 17 24-2); and Defendants’ attorney, Deputy Attorney General Cassandra Shryock (dkt. 24-8). 18 Meanwhile, Plaintiff has filed his verified SAC (dkt. 11 at 3), his verified declaration (dkt. 28-1 at 19 2) and exhibits (dkt. 11-1) in opposition to Defendants’ motion for summary judgment. The Court 20 will construe these filings as affidavits under Federal Rule of Civil Procedure 56, insofar as they 21 are based on personal knowledge and set forth specific facts admissible in evidence. See 22 Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). However, Plaintiff has not 23 verified his opposition because he failed to sign it under penalty of perjury. See Dkt. 28 at 4. 24 B. Exhaustion Under the PLRA 25 1. Overview 26 The PLRA amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with 27 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 1 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of all “available” remedies is 2 mandatory; those remedies need not meet federal standards, nor must they be “plain, speedy, and 3 effective.” Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739-40 4 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably 5 money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner “seeking 6 only money damages must complete a prison administrative process that could provide some sort 7 of relief on the complaint stated, but no money.” Id. at 734. 8 The PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 9 U.S. 81, 83 (2006). “Proper exhaustion demands compliance with an agency’s deadlines and 10 other critical procedural rules because no adjudicative system can function effectively without 11 imposing some orderly structure on the course of its proceedings.” Id. at 90-91. Thus, 12 compliance with prison grievance procedures is required by the PLRA to properly exhaust. Id. 13 The PLRA’s exhaustion requirement cannot be satisfied “by filing an untimely or otherwise 14 procedurally defective administrative grievance or appeal.” Id. at 83. 15 The State of California provides its inmates and parolees the right to appeal 16 administratively “any departmental decision, action, condition or policy perceived by those 17 individuals as adversely affecting their welfare.” See Cal. Code Regs. tit. 15, § 3084.1(a). It also 18 provides its inmates the right to file administrative appeals alleging misconduct by correctional 19 officers. See id. § 3084.1(e). 20 In order to exhaust available administrative remedies within this system, a prisoner must 21 proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a 22 CDCR 602 inmate appeal form (“602 appeal”), (3) second level appeal to the institution head or 23 designee, and (4) third level appeal to the Director of the CDCR (i.e., Director’s Level). See id. 24 § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the 25 administrative remedies exhaustion requirement under § 1997e(a). See id. at 1237-38. Here, 26 Defendants contend that Plaintiff failed to properly exhaust his available administrative remedies 27 as to all his claims except “(1) his conditions of confinement claim against Defendants Basnett, 1 2017; (2) his claim against Defendant Scruggs for withholding mail in February 2017; and (3) his 2 retaliation claim against Defendant Scruggs, also for withholding his mail in February 2017.” 3 Dkt. 30 at 2 (citing Dkt. 24 at 16-17). Thus, they argue that aside from the aforementioned claims 4 all other claims are unexhausted should be dismissed, including: (1) deliberate indifference claim 5 based on being confined in a holding cell for several hours without food, water, or a restroom; 6 (2) his claim that his property was temporarily confiscated in retaliation for his refusal to provide 7 the passcode to a cell phone; (3) any claims in connection with the issuance of RVRs for 8 possession of a cell phone or possession of altered property; (4) his claims against Defendants 9 Trone and Wright for their involvement in the interviews and investigation into Plaintiff’s 602 10 appeal about his mail allegedly being withheld; and (5) his claims against Defendants Basso, 11 Kauffman, and Chavez for retaliation or any claim arising from the alleged twenty-plus cell 12 searches they ordered or conducted. Dkt. 24 at 17-19. 13 2. Summary of Plaintiff’s Grievances 14 Defendants argue that Plaintiff “admittedly only submitted two inmate appeals related to 15 his current claims against Defendants.” Id. at 16 (citing Spaich Decl. ¶ 12(a), Ex. D at 1-3, 5, 16 ¶ 12(b), Ex. E at 1-3, 5 ; Royal Decl. ¶ 9(a), Ex. A at 3, 5, ¶ 9(b), Ex. B at 5). 17 Upon reviewing the record, the Court notes that after December 28, 2016, Plaintiff 18 submitted the following two inmate appeals that were accepted for review and denied at the final 19 level of review. 20 (1) PBSP-17-00043 - exhausted Plaintiff’s claims against Defendants Basnett, Contreras, 21 and Burr concerning the conditions of Plaintiff’s confinement while his property was 22 temporarily confiscated in December 2016. See Spaich Decl. ¶12(a), Ex. D at 1-3, 5; 23 Royal Decl. ¶ 9(a), Ex. A at 3, 5; and 24 (2) PBSP-17-00305 - exhausted Plaintiff’s claims against Defendant Scruggs concerning 25 Plaintiff’s mail being improperly withheld in February 2017, and that Plaintiff’s mail 26 was withheld in retaliation for Plaintiff engaging in a protected activity. See Spaich 27 Decl. ¶ 12(b), Ex. E at 1-3, 5; Royal Decl. ¶ 9(b), Ex. B at 5. 3. Analysis 1 a. Deliberate Indifference for Being Confined in Holding Cell 2 In his SAC, Plaintiff alleges a deliberate indifference claim based on being confined in a 3 holding cell for several hours without food, water, or a restroom. However, Defendants argue that 4 such a claim is unexhausted because “the one appeal Plaintiff submitted related to the December 5 28, 2016 search, did not put prison officials on notice of the wrong for which Plaintiff now seeks 6 redress.” Dkt. 24 at 17 (citing Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009)). The Court 7 agrees with Defendants. The record shows that in PBSP-17-00043, Plaintiff challenges the 8 “unnecessary and drawn out confiscation of all [his] personal property . . . hygiene[e] [products] 9 and food utensils,” which the Court assumes stems from the December 28, 2016 search. Royal 10 Decl., Ex. A at 3. The Court has reviewed PBSP-17-00043 and finds that 602 appeal makes no 11 mention of the fact that Plaintiff was allegedly placed in a holding cell for several hours while 12 officers searched his cell. See Spaich Decl. ¶12(a), Ex. D at 1-3, 5; see also Royal Decl. ¶ 9(a), 13 Ex. A at 3, 5. Without this fact, the Court finds that PBSP officials could not have been aware of 14 the wrong for which Plaintiff now seeks redress i.e., his alleged confinement in a holding cell for 15 an extended period of time, and the denial of the aforementioned services while he was confined 16 there—and thus, this claim is unexhausted. Dkt. 24 at 7. 17 Neither of the two grievances submitted by Plaintiff during the relevant time period 18 addressed his deliberate indifference claim based on being confined in a holding cell. A grievant 19 must utilize all steps of the grievance process made available by the prison so that it can reach the 20 merits of the complaint. Woodford, 548 U.S. at 90. Here, the record shows that Plaintiff failed to 21 exhaust his administrative remedies as to his deliberate indifference claim based on being confined 22 in a holding cell. See Griffin, 557 F.3d at 1120 (no exhaustion where grievance complaining of 23 upper bunk assignment failed to allege, as the complaint had, that nurse had ordered lower bunk, 24 but officials disregarded that order). 25 b. Confiscation of Property in Retaliation for His Refusal to 26 Provide Cell Phone Passcode 27 Defendants also argue that Plaintiff’s claim that his property was temporarily confiscated 1 because Plaintiff did not put prison officials on notice of this alleged wrong.” Dkt. 24 at 17. 2 Defendants argue as follows: 3 A grievance does not have to include legal terminology or legal theories in his grievance, unless they were in some way needed to 4 provide notice of the harm being grieved. See Griffin, 557 F.3d at 1120. Here, to put prison officials on notice of this claim, Plaintiff 5 did not necessarily need to use the word “retaliation,” but he did need to alert prison officials that he had engaged in some protected 6 conduct, and that officials took some action against him because he engaged in protected conduct. See Rhodes v. Robinson, 408 F.3d 559, 7 567-68 (9th Cir. 2005) (elements of retaliation claim in prison context). 8 Id. Again, the Court has reviewed PBSP-17-00043, which relates to the confiscation of Plaintiff’s 9 property, and it agrees with Defendants. See Royal Decl., Ex. A at 3. PBSP-17-00043 makes no 10 mentioned of Plaintiff speaking with the PBSP officials who confiscated his property, or that he 11 believed his property was confiscated because he refused to reveal the cell phone passcode. See 12 Royal Decl. ¶ 9(a), Ex. A at 3, 5; Spaich Decl. ¶ 12(a), Ex. D at 1-3, 5. Therefore, Plaintiff did not 13 exhaust any retaliation claim stemming from the December 28, 2016 search. 14 c. Issuance of RVRs for Possession of Cell Phone or Altered 15 Property 16 Defendants argue that to the extent Plaintiff brings any claims in connection with the 17 issuance of RVRs for possession of a cell phone or altered property, “those claims are similarly 18 not exhausted, because they are no[] mentioned in this, or any other, appeal.” Dkt. 24 at 18 (citing 19 Spaich Decl. ¶ 12(a), Ex. D at 1-3, 5, ¶ 12(b), Ex. E at 1-3, 5; Royal Decl. ¶ 9(a), Ex. A at 3, 5, 20 ¶ 9(b), Ex. B at 5). The Court has reviewed both PBSP-17-00043 and PBSP-17-00305. See Royal 21 Decl., Exs. A and B. Again, neither 602 appeal mentioned any claims in connection with the 22 issuance of RVRs for possession of a cell phone or altered property. See id. Furthermore, PBSP- 23 17-00043 was submitted on January 4, 2017, which was six days before the January 10, 2017 24 RVR for an altered typewriter and therefore PBSP-17-00043 could not have exhausted any claim 25 relating to the January 10, 2017 RVR. Compare Royal ¶ 9(a), Ex. A at 3 with Contreras Decl. ¶ 8 26 [RVR for altered typewriter written on 1/10/2017]; see also Basnett Decl. ¶ 10; Shryock Decl. Ex 27 I (Pl.’s Dep.) at 100:10-101:11, 106:23-108:9; Spaich Decl. ¶ 12(a), Ex. D at 3. Therefore, d. Defendants Trone’s and Wright’s Involvement in Investigation 1 into PBSP-17-00305 Regarding Plaintiff’s Mail Allegedly Being Withheld 2 Defendants argue that Plaintiff did not exhaust his claims against Defendants Trone and 3 Wright for their involvement in the interviews and investigation into PBSP-17-00305, which was 4 regarding Plaintiff’s mail allegedly being withheld. Dkt. 24 at 18. 5 Section 3084.2(a)(3) of Title 15 of the California Code of Regulations requires that an 6 inmate 7 list all staff member(s) involved and shall describe their involvement 8 in the issue. . . . If the inmate . . . does not have the requested identifying information about the staff member(s), he or she shall 9 provide any other available information that would assist the appeals coordinator in marking a reasonable attempt to identify the staff 10 member(s) in question. 11 Cal. Code Regs. tit. 15, §3084.2(a)(3) (repealed June 1, 2020). The record shows that Plaintiff did 12 not allege any claims against either Defendant Trone or Defendant Wright when Plaintiff first 13 submitted the relevant 602 appeals, PBSP-17-00043 and PBSP-17-00305, because these 14 Defendants’ alleged actions of investigating PBSP-17-00305 had not yet occurred. See Spaich 15 Decl. ¶ 12(a), Ex. E at 1, ¶ 12(b), Ex. E at 3, 5; Royal Decl. ¶ 9(b), Ex. B at 1, 3, 5; Pl.’s Dep. at 16 127:20-128:25, 130:13-25; Trone Decl. ¶ 6. Even assuming arguendo that Plaintiff had later tried 17 to add any claims against these Defendants to one of the 602 appeals (which he did not), 18 administrative remedies are not exhausted as to any new issue or person later named that was not 19 included in the originally submitted appeal. See Cal. Code Regs. tit. 15, § 3084.1(b). Thus, in 20 order to have exhausted any claims against either Defendant Trone or Defendant Wright, Plaintiff 21 would have been required to submit a separate appeal raising any claims about these Defendants’ 22 involvement in the investigation of PBSP-17-00305. Because Plaintiff failed to do so, such claims 23 against Defendants Trone and Wright are also unexhausted. 24 e. Defendants Basso, Kauffman, and Chavez’s Acts of Retaliation or Any Claim Arising from Alleged Twenty-Plus Cell Searches 25 They Ordered or Conducted 26 Defendants argue that Plaintiff did not exhaust his claims against Defendants Basso, 27 Kauffman, and Chavez for any acts of retaliation or any claim arising from the alleged twenty-plus 1 his interactions with these Defendants occurred in February 2017, attachments to prior iterations 2 of the complaint and Plaintiff’s deposition testimony confirm that these interactions occurred in 3 April 2017, which was long after Plaintiff submitted the two 602 appeals relating to this action, 4 PBSP-17-00043 (submitted on January 4, 2017) and PBSP-17-00305 (submitted on February 8, 5 2017). See Dkt. 1 at 24; Pl.’s Dep. at 141:16-25 (Dkt. 29-1 at 2).4 Therefore, neither PBSP-17- 6 00043 nor PBSP-17-00305 could have exhausted those claims. 7 f. Summary 8 In sum, the record in this case demonstrates that Plaintiff had the opportunity and ability to 9 properly exhaust the aforementioned claims, but he failed to do so. Accordingly, the Court 10 GRANTS Defendants’ motion for summary judgment as to these claims, which are subject to 11 dismissal without prejudice. See McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) 12 (proper course in claims dismissed due to failure to exhaust administrative remedies is dismissal 13 without prejudice to refiling). 14 C. Remaining Legal Claims 15 The Court now considers Plaintiff’s remaining claims: (1) his conditions of confinement 16 claim against Defendants Basnett, Contreras, and Burr for the temporary confiscation of his 17 property from December 28, 2016 through January 10, 2017; and (2) his claims against Defendant 18 Scruggs for (a) withholding mail in February 2017, and (b) retaliation based on withholding 19 Plaintiff’s mail. 20 1. Eighth Amendment Claim Relating to Conditions of Confinement 21 The Constitution does not mandate comfortable prisons, nor does it permit inhumane ones. 22 See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a prisoner receives in prison and 23 the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. See 24 Helling v. McKinney, 509 U.S. 25, 31 (1993). The Eighth Amendment imposes duties on prison 25 officials to provide prisoners with the basic necessities of life, such as food, clothing, shelter, 26 27 4 The Court notes that Defendants’ attorney erroneously omitted page 141 of Plaintiff’s 1 sanitation, medical care, and personal safety. See Farmer, 511 U.S. at 832. A plaintiff alleging that 2 conditions of confinement amount to cruel and unusual punishment prohibited by the Eighth 3 Amendment must satisfy a two-prong test. Wilson v. Seiter, 501 U.S. 294, 298 (1991). First, a 4 plaintiff must satisfy an objective test showing that “he is incarcerated under conditions posing a 5 substantial risk of serious harm.” Farmer, 511 U.S. at 834. In determining whether a deprivation 6 of a basic necessity is sufficiently serious to satisfy the objective component of an Eighth 7 Amendment claim, courts consider the circumstances, nature, and duration of the deprivation. See 8 Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). Second, the plaintiff must show that the prison 9 official inflicted the deprivation with a “sufficiently culpable state of mind,” that is, with “deliberate 10 indifference” to his health or safety. Farmer, 511 U.S. at 834. Neither negligence nor gross 11 negligence will constitute deliberate indifference. See id. at 835-37 & n.4; see also Estelle v. 12 Gamble, 429 U.S. 97, 106 (1976) (establishing that deliberate indifference requires more than 13 negligence). A prison official cannot be held liable under the Eighth Amendment for denying an 14 inmate humane conditions of confinement unless the standard for criminal recklessness is met, i.e., 15 the official knows of and disregards an excessive risk to inmate health or safety. See Farmer, 511 16 U.S. at 837. The official must both be aware of facts from which the inference could be drawn that 17 a substantial risk of serious harm exists, and he must also draw the inference. See id. 18 The more basic the need, the shorter the time it can be withheld. See Johnson v. Lewis, 19 217 F.3d 726, 731 (9th Cir. 2000). Substantial deprivations of shelter, food, drinking water or 20 sanitation for four days, for example, are sufficiently serious to satisfy the objective component of 21 an Eighth Amendment claim. See id. at 732-33; see, e.g., Hearns v. Terhune, 413 F.3d 1036, 22 1041-42 (9th Cir. 2005) (allegations of serious health hazards in disciplinary segregation yard for 23 a period of nine months, including toilets that did not work, sinks that were rusted and stagnant 24 pools of water infested with insects, and a lack of cold water even though the temperature in the 25 prison yard exceeded 100 degrees, enough to state a claim of unconstitutional prison conditions). 26 Also, “[t]he denial of adequate clothing can inflict pain under the Eighth Amendment.” Walker v. 27 Sumner, 14 F.3d 1415, 1421 (9th Cir. 1994) (citation omitted), abrogated in part on other grounds 1 hygiene supplies such as toothbrushes and soap.” Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 2 1996), amended by 135 F.3d 1318 (9th Cir. 1998). 3 A heightened pleading standard applies to the subjective prong of Eighth Amendment 4 claims: the plaintiff must make nonconclusory allegations supporting an inference of unlawful 5 intent. Alfrey v. United States, 276 F.3d 557, 567-68 (9th Cir. 2002) (applying standard to Bivens 6 Eighth Amendment claim). 7 Here, Plaintiff claims that he was deprived of clothing, bedding, and cleaning and hygiene 8 supplies for thirteen days—from December 28, 2016 through January 10, 2017. Contreras Decl. 9 ¶¶ 8-9; Burr Decl. ¶ 9; Basnett Decl. ¶ 8; Pl.’s Dep. at 39:6-40:10, 86:21-91:12, 92:10-24, 94:6-15, 10 104:4-12, 106:23-108:9. At the screening stage, the Court found that, liberally construed, these 11 claims were sufficient to proceed. However, in their motion for summary judgment, Defendants 12 argue that while he “may have been subjected to somewhat harsh conditions, . . . these conditions 13 do not rise to the level of a constitutional violation.” Dkt. 24 at 20. Defendants have presented 14 evidence that although Plaintiff’s clothing was confiscated, he was able to borrow “some pants, [a] 15 blue shirt and some boots” from another inmate in a nearby cell. Pl.’s Dep. at 86:21-89:6. 16 Defendants have also presented evidence that Plaintiff still had his mattress, and that he was 17 provided “sheets and a blanket” the following day. Id. at 87:20-88:3, 89:7-90:20, 94:6-15. 18 Plaintiff claims his soap, toothpaste, deodorant, shampoo and conditioner, as well as his cleaning 19 supplies were also confiscated for thirteen days. Contreras Decl. ¶¶ 8-9; Pl.’s Dep. at 39:6-40:10, 20 104:4-12, 106:23-108:9. Plaintiff tried to borrow some “hygiene materials” from other inmates, 21 but he was only able to borrow toothpaste because soap had not been available in his building “for 22 about two weeks.” Pl.’s Dep. at 89:7-14, 91:6-8, 95:14-21. Plaintiff requested cleaning supplies 23 from one of the officers assigned to work in his building, but the building was also out of cleaning 24 supplies and none of the inmates would lend him any cleaning supplies. Id. at 90:13-91:12, 96:2- 25 12. Plaintiff’s floor officer provided Plaintiff with toilet paper that same day. Id. at 89:14-22. 26 Plaintiff was given the opportunity to shower regularly, but “just with water.” Id. at 95:22-96:1. 27 Defendants argue that “[a]lthough not ideal, this was a temporary deprivation that did not deny 1 McMillian, 503 U.S. 1, 9 (1992)). The Court agrees and finds that Defendants have met their 2 burden and demonstrated the absence of a genuine issue of material fact. Meanwhile, Plaintiff has 3 failed to set forth specific facts showing that there is a genuine issue for trial. It is undisputed (and 4 Plaintiff acknowledged at his deposition) that the floor officer supplied him with toilet paper that 5 same day, and that he received sheets and a blanket the very next day, and thus the evidence shows 6 prison officials addressed some of his concerns. Prisoners may be entitled to appropriate materials 7 to clean their cells depending on the overall squalor of the institution. See Hoptowit v. Spellman, 8 753 F.2d 779, 784 (9th Cir. 1985). While Plaintiff was not supplied with soap or cleaning 9 supplies, it is undisputed that the reason was because none of these items were available during 10 that time. Other than presenting his statement that he had no access to cleaning supplies, Plaintiff 11 has failed to present any evidence or allegations that such a denial of cleaning supplies was a 12 sufficiently serious deprivation. Even assuming the denial of cleaning supplies was sufficiently 13 serious, Plaintiff has not met his burden to show that Defendants’ state of mind was sufficiently 14 culpable. As noted above, neither negligence nor gross negligence will constitute deliberate 15 indifference. See Farmer, 511 U.S. at 835-37 & n.4; see also Estelle, 429 U.S. at 106. 16 Defendants cannot be held liable under the Eighth Amendment for denying an inmate humane 17 conditions of confinement unless the standard for criminal recklessness is met, i.e., the prison 18 officials know of and disregard an excessive risk to inmate health or safety. See Farmer 511 U.S. 19 at 837. Moreover, a heightened pleading standard applies to the subjective prong of Eighth 20 Amendment claims, and Plaintiff must make nonconclusory allegations supporting an inference of 21 unlawful intent. See Alfrey, 276 F.3d at 567-68. Plaintiff has failed to meet this burden. While 22 these general allegations sufficed at the screening stage, they are insufficient to defeat summary 23 judgment due to the high standard for Eighth Amendment claims. The record shows that building 24 officers had access to extra clothing, bedding, as well as some hygiene and cleaning supplies (only 25 toilet paper at that time), and they could issue it to inmates as needed. Pl.’s Dep. at 89:7-14. And 26 there is no indication that Defendants prevented Plaintiff from obtaining replacements hygiene and 27 cleaning supplies. Again, Plaintiff could not get all the replacement hygiene and cleaning supplies 1 89:7-91:12. Further, after Plaintiff requested that his property be returned to him, Defendant 2 Basnett attempted to give Plaintiff a bar of soap and deodorant, but Plaintiff refused them because 3 they belonged to his cellmate. Basnett Decl. ¶ 10; Pl.’s Dep. at 100:10-101:11. Therefore, as to 4 the subjective prong of the Eighth Amendment analysis, Plaintiff has failed to establish 5 Defendants’ “deliberate indifference” to the alleged unconstitutional conditions of confinement. 6 See Farmer, 511 U.S. 825, 834 (1994); Wilson, 501 U.S. at 303. 7 Accordingly, summary judgment is granted to Defendants Basnett, Burr and Contreras on 8 this Eighth Amendment claim. 9 2. Claims Relating to Defendant Scruggs 10 a. First Amendment Right to Receive Mail and Fourteenth Amendment Due Process Claims 11 Prisoners enjoy a First Amendment right to send and receive mail. See Witherow v. Paff, 12 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). A 13 prison, however, may adopt regulations or practices which impinge on a prisoner’s First 14 Amendment rights as long as the regulations are “reasonably related to legitimate penological 15 interests.” See Turner v. Safley, 482 U.S. 78, 89 (1987). The Turner standard applies to 16 regulations and practices concerning all correspondence between prisoners and to regulations 17 concerning incoming mail received by prisoners from non-prisoners. See Thornburgh, 490 U.S. at 18 413. 19 Prisoners also have a liberty interest in the receipt of mail, which triggers procedural due 20 process guarantees. Krug v. Lutz, 329 F.3d 692, 696-967 (9th Cir. 2003). If prison officials 21 withhold mail, a prisoner has a due process right to receive notice that his incoming mail is being 22 withheld. See Frost v. Symington, 197 F.3d 348, 353-54 (9th Cir. 1999); see also Prison Legal 23 News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001) (holding that due process rights apply to 24 withheld mail where prisoners had constitutionally protected right to receive the mail). A prisoner 25 also has a due process right to appeal the exclusion of mail to a prison official other than the one 26 who made the initial exclusion decision. See Krug, 329 F.3d at 697-98 & n.5. 27 Prison officials have a responsibility to forward mail to inmates promptly. See Bryan v. 1 Werner, 516 F.2d 233, 238 (3d Cir. 1975). Allegations that mail delivery was delayed for an 2 inordinate amount of time are sufficient to state a claim for violation of the First Amendment. See 3 Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996). Any practice or regulation that unduly 4 delays an inmate’s incoming mail must be reasonably related to legitimate penological interests. 5 See Turner v. Safley, 482 U.S. at 89. But a temporary delay does not violate a prisoner’s First 6 Amendment rights. See Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (policy of diverting 7 publications through property room reasonably related to prison’s interest in inspecting mail for 8 contraband); accord Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) (content-neutral short-term 9 and sporadic delays in prisoner’s receipt of mail did not violate his First Amendment rights) 10 Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1987) (allegations of isolated delay or some 11 other relatively short-term, non-content-based disruption in delivery of inmate mail not enough to 12 state First Amendment claim); Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir.) (isolated incident of 13 mail mishandling insufficient to state claim under First Amendment), cert. denied, 418 U.S. 910 14 (1974). 15 Finally, an isolated incident of mail censorship or interference due to prison officials’ 16 “honest error” does not justify relief under section 1983. See Lingo v. Boone, 402 F. Supp. 768, 17 773 (N.D. Cal. 1975) (prisoner not entitled to monetary relief under § 1983 where prison officials 18 erroneously withheld a single piece of mail on the grounds that it was inflammatory); see also 19 Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (defendants opened a single piece of legal 20 mail by accident; “[s]uch an isolated incident, without any evidence of improper motive or 21 resulting interference with Smith’s right to counsel or to access to the courts, does not give rise to 22 a constitutional violation”); cf. Antonelli v. Sheahan, 81 F.3d 1422, 1431-32 (9th Cir. 1996) 23 (plaintiff stated a claim where he alleged not merely negligent, but deliberate, obstruction of his 24 mail that resulted in mail delivery being delayed for an inordinate amount of time). 25 Defendants argue that there was no First Amendment violation here because of one 26 isolated incident of alleged mail mishandling by Defendant Scruggs. Dkt. 24 at 22. The 27 California Code of Regulations provides that “inmates shall not engage actively in a business or 1 Code Regs. tit. 15, § 3024(a). And according to prison regulations, inmate mail may be rejected if 2 it relates to an inmate’s business. Id. at § 3024(b). Here, Defendants present evidence that 3 Defendant Scruggs forwarded a single piece of Plaintiff’s mail to ISU in order to determine if 4 Plaintiff was permitted to have the flyer advertising “stamps for cash,” because Defendant Scruggs 5 believed the flyer was connected to a business. Scruggs Decl. ¶¶ 4-6. Defendant Scruggs had no 6 further involvement with processing this piece of mail. Id. ¶ 6. At most, Defendants argue that 7 this is merely an isolated error by Defendant Scruggs, and that no evidence exists showing any on- 8 going practice of unjustified censorship occurring, as Plaintiff implies in his SAC.5 Thus, 9 Defendants assert that Plaintiff’s mail was properly withheld under prison regulations and did not 10 violate Plaintiff’s First Amendment rights as a matter of law. Dkt. 24 at 22-23. 11 Meanwhile, Plaintiff asserts that Defendants failed to follow prison regulations regarding 12 withheld mail. Dkt. 11 at 6-7. He claims that under the regulations, prison staff like Defendant 13 Scruggs “knew or should have known that established policy 3136(a)6 mandated that plaintiff was 14 5 To the extent Plaintiff claims that additional mail was mishandled after February 2017 15 incident involving Defendant Scruggs, such a claim is unexhausted. Further, Plaintiff does not connect any other Defendant to these additional mail issues. In order to recover under section 16 1983, Plaintiff must present evidence that Defendants were personally involved in a constitutional deprivation. See OSU Student Alliance v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012), cert. denied, 17 571 U.S. 819 (2013). But Plaintiff fails to present any such evidence. The record shows that only Defendant Scruggs forwarded the “stamps for cash” flyer to ISU, and the other Defendants were 18 not part of processing incoming mail at the institution. Burr Decl. ¶ 14. Therefore, the Court will only consider Plaintiff’s allegations involving Defendant Scruggs’ withholding of the flyer 19 advertising “cash for stamps.” 20 6 Section 3136(a) of Title 15 of the California Code of Regulations, “Disapproval of Inmate Mail,” states as follows: 21 Disapproval of inmate mail that is in clear violation of CCR sections 22 3006 or 3135 shall be referred to staff not below the level of Captain for determination and appropriate action. Disapproval of inmate mail 23 that is not in clear violation of CCR sections 3006 or 3135 shall be referred to the Warden, but not lower than the Chief Deputy Warden, 24 for determination and appropriate action. When incoming or outgoing mail, packages, or publications addressed to or being sent 25 by an inmate are withheld or disallowed, the inmate shall be informed via CDCR Form 1819 (Rev. 01/16), Notification of Disapproval- 26 Mail/Packages/Publications, of the reason, disposition, name of official disallowing the mail/package/publication, and the name of the 27 official to whom a grievance can be directed. 1 to be given a CDCR [Form] 1819, documenting that he was forwarding plaintiff[’s] mail to ISU.” 2 Id. at 7. However, Plaintiff claims that he “submitted a CDCR 22 form and asked [Defendant 3 Scruggs] about [the] CDCR 1819 form.” Id. In response to the CDCR Form 22, Defendant 4 Scruggs stated that he “contacted . . . [Defendant] Trone, [who] stated [the withheld mail] ha[d] 5 been forwarded to ISU for processing.” Id.; Dkt. 11-1 at 8. In essence, Plaintiff seems to claim 6 that Defendants failed to follow the aforementioned prison regulations, thereby, violating his due 7 process rights. See id. 8 The Court notes that in response to the motion for summary judgment, Plaintiff makes no 9 challenges to the prison regulation prohibiting mail relating to an inmate’s business. See Dkt. 28-1 10 at 1. Rather, Plaintiff’s main contention is that Defendant Scruggs failed to comply with prison 11 regulations when he withheld Plaintiff’s mail “without issuing [the] CDCR 1918 mandated form 12 when any mail is being withheld.” Id. Defendants acknowledge that “[a]lthough [Plaintiff] did 13 not receive a CDCR Form 1819 as he requested, Defendant Scruggs informed Plaintiff verbally 14 and in writing that he forwarded [Plaintiff’s] mail to ISU for processing. Dkt. 24 at 24 (citing 15 Scruggs Decl. ¶¶ 5, 7, Ex. G; Pl.’s Dep. at 119:17-120:16). Moreover, Plaintiff had the 16 opportunity to, and did, challenge Defendant Scruggs’s decision to withhold his mail through the 17 inmate appeals process. Id. at 24-25 (citing Spaich Decl. ¶ 12(b), Ex. E at 3, 5; Royal Decl. ¶ 9(b), 18 Ex. B at 3, 5). And his appeal was evaluated by a prison official other than person who seized the 19 mail at issue. Id. at 25 (citing Pl.’s Dep. at 127:20-128:25, 130:13-25; Trone Decl. ¶ 6; see also 20 Spaich Decl. ¶ 12(a), Ex. D at 1; Royal Decl. ¶ 9(b), Ex. B at 1). Thus, Defendants argue that the 21 aforementioned actions satisfied the constitutional requirements of due process, i.e., notice of the 22 disallowed material and the ability to appeal that decision to a different official. Id. 23 Based on the evidence presented, Defendants have shown that there is no genuine issue of 24 material fact with respect to Plaintiff’s claim relating to his First Amendment right to receive mail. 25 See Celotex Corp., 477 U.S. at 323. In response, Plaintiff has failed to point to specific facts 26 showing that there is a genuine issue for trial, id. at 324, or identify with reasonable particularity 27 the evidence that precludes summary judgment, Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1 The only dispute is what process was due to Plaintiff in the withholding of his mail. Under 2 Ninth Circuit precedent, Plaintiff has a due process right to receive notice that his incoming mail is 3 being withheld, see Frost, 197 F.3d at 353-54, and a right to appeal the exclusion of mail to a 4 prison official other than the one who made the initial exclusion decision, see Krug, 329 F.3d at 5 697-98 & n.5. As to the first procedural requirement, the undisputed facts show that Plaintiff 6 received oral and written notice from Defendant Scruggs notice that his mail was being withheld. 7 Secondly, the undisputed facts show that Plaintiff was afforded the right to appeal, and he did in 8 fact appeal the decision to other prison officials. Therefore, the undisputed facts show that 9 Plaintiff was afforded constitutionally adequate procedural due process in the withholding of the 10 mail at issue. As such, even if it were true that Defendant Scruggs failed to comply with the 11 prison’s procedure of issuing a CDCR Form 1819 after withholding Plaintiff’s mail, the Court is 12 not persuaded that the failure to do so gives rise to a due process liability. See, e.g., Walker v. 13 Sumner, 14 F.3d 1415, 1419-20 (9th Cir. 1994) (in a disciplinary proceeding, Due Process Clause 14 only requires prisoners be afforded those procedures mandated by Wolff v. McDonnell, 418 U.S. 15 539 (1974), and its progeny, and does not require that prisons comply with its own, more generous 16 procedures); see also Rogers v. Okin, 738 F.2d 1, 8 (1st Cir. 1984) (“if state procedures rise above 17 the floor set by the due process clause, a state could fail to follow its own procedures yet still 18 provide sufficient process to survive constitutional scrutiny”). 19 Accordingly, Defendant Scruggs is entitled to judgment as a matter of law on Plaintiff’s 20 First and Fourteenth Amendment claims. Celotex Corp., 477 U.S. at 323. 21 b. Retaliation Claim Based on Withholding Mail 22 Plaintiff alleges that Defendant Scruggs’s aforementioned actions of withholding mail in 23 February 2017 was in retaliation against Plaintiff for exercising his First Amendment rights. 24 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 25 elements: (1) An assertion that a state actor took some adverse action against an inmate 26 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 27 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 1 The prisoner must show that the type of activity in which he was engaged was 2 constitutionally protected, that the protected conduct was a substantial or motivating factor for the 3 alleged retaliatory action, and that the retaliatory action advanced no legitimate penological 4 interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring retaliatory motive from 5 circumstantial evidence). Retaliatory motive may be shown by the timing of the allegedly- 6 retaliatory act and other circumstantial evidence, as well as direct evidence. Bruce v. Ylst, 351 7 F.3d 1283, 1288-89 (9th Cir. 2003). However, mere speculation that defendants acted out of 8 retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing cases) 9 (affirming grant of summary judgment where there was no evidence that defendants knew about 10 plaintiff’s prior lawsuit, or that defendants’ disparaging remarks were made in reference to prior 11 lawsuit). 12 Defendants argue that there is an absence of evidence of a causal connection that the 13 withholding of Plaintiff’s mail by Defendant Scruggs was motivated because of Plaintiff’s 14 protected conduct, and they also argue that there were legitimate reasons for withholding 15 Plaintiff’s mail. Dkt. 24 at 23. Defendants state as follows: 16 Assuming that forwarding the “stamps for cash” flyer to ISU was an “adverse action,” this action was not done because Plaintiff had 17 submitted an inmate appeal one month earlier, and it did advance a legitimate penological interest. Scruggs Decl. ¶¶ 5-9. Defendant 18 Scruggs only forwarded the flyer to ISU because he believed that it was not permitted under the governing regulations. Scruggs Decl. 19 ¶ 9. Because Defendant Scruggs forwarded the mail to ISU to see whether the mail was permitted, consistent with the regulations, his 20 actions also served a legitimate penological purpose. 21 Id. 22 To raise a triable issue as to motive, a plaintiff must offer evidence that the defendants 23 knew about the protected conduct. Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009). In 24 addition, the plaintiff must show “either direct evidence of retaliatory motive or at least one of 25 three general types of circumstantial evidence [of that motive].” McCollum v. California Dept. of 26 Corrections and Rehabilitation, 647 F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon, 283 27 F.3d 1070, 1077 (9th Cir. 2002)). To survive summary judgment without direct evidence, 1 (1) proximity in time between protected speech and the alleged retaliation; (2) [that] the 2 [defendant] expressed opposition to the speech; [or] (3) other evidence that the reasons proffered 3 by the [defendant] for the adverse . . . action were false and pretextual.” McCollum, 647 F.3d at 4 882 (internal quotation marks and citation omitted). 5 Here, the Court finds that Plaintiff’s retaliation claim against Defendant Scruggs fails 6 because of an absence of evidence of retaliatory motive. See id. Plaintiff does not allege that 7 Defendant Scruggs had knowledge of Plaintiff’s previous grievances or lawsuits. See Dkt. 11. 8 Instead, it seems that Plaintiff claims that Defendant Scruggs’s actions were “to cover up, 9 retaliation and harass [Plaintiff]” because “[he] did not give them the code to a cell phone that he 10 never had possession of.” Dkt. 11 at 8. However, there is nothing in the record which indicates 11 that on February 1, 2017, the date Defendant Scruggs withheld Plaintiff’s mail, Defendant Scruggs 12 had any knowledge about the cell search and property confiscation incident more than a month 13 prior, on December 28, 2016, involving Defendants Burr, Contreras, and Basnett. Second, there is 14 no evidence that Defendant Scruggs expressed opposition to any protected conduct by Plaintiff. 15 Third, as mentioned above, Plaintiff offers no evidence that Defendant Scruggs’s reason for 16 withholding Plaintiff’s mail was false or pretextual (i.e., Defendant Scruggs claims he withheld 17 the flyer advertising “stamps for cash” because he believed the flyer was connected to an inmate 18 business in violation of prison regulations). See Wood, 753 F.3d at 904-05 (speculation on 19 defendant’s motive is insufficient to defeat summary judgment). Accordingly, Defendant Scruggs 20 is entitled to judgment as a matter of law for this retaliation claim. 21 3. Punitive Damages Claim 22 Finally, the dismissal of Plaintiff’s claim for punitive damages is in order, as punitive 23 damages may be awarded in a section 1983 suit only “when the defendant’s conduct is shown to 24 be motivated by evil motive or intent, or when it involves reckless or callous indifference to the 25 federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). There is no 26 indication whatsoever that Defendants’ alleged wrongdoing rose to this requisite high level of 27 culpability. Accordingly, Plaintiff’s claim for punitive damages is DISMISSED. IV. CONCLUSION For the reasons outlined above, the Court orders as follows: 2 1. Defendants’ motion for summary judgment is GRANTED as to all claims.’ Dkt. 3 24. Specifically, the Court has GRANTED Defendants’ motion for summary judgment on the 4 merits as to Plaintiff's following claims: (1) his conditions of confinement claim against 5 Defendants Basnett, Contreras, and Burr for the temporary confiscation of his property from 6 December 28, 2016 through January 10, 2017; and (2) his claims against Defendant Scruggs for: 7 (a) withholding mail in February 2017, and (b) retaliation based on withholding Plaintiffs mail. 8 Plaintiff's remaining unexhausted claims, as listed above, are DISMISSED without prejudice to 9 refiling after exhausting California’s prison administrative process. See McKinney, 311 F.3d at 10 1200-01. 11 2. Plaintiffs claim for punitive damages is DISMISSED. 12 3. The Clerk of the Court shall terminate all pending motions and close the file. 13 4. This Order terminates Docket No. 24. 14 IT IS SO ORDERED. 15 Dated: August 5, 2020 16 = 17 Z 18 YVONNE GONZALEZ ROGERS 19 United States District Judge 20 21 22 23 24 25 AAA ’ The Court’s finding that Defendants are entitled to summary judgment as to Plaintiff's 27 claims (based on the failure to exhaust administrative remedies as to some of the claims and on the 28 merits as to the remaining claims, as explained above) obviates the need to address Defendants’ alternative arguments in their dispositive motion.