Saddozai v. Atchley ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 SHIKEB SADDOZAI, Case No. 20-cv-07534 BLF (PR) Plaintiff, 12 ORDER DENYING DEFENDANT’S v. MOTION FOR SUMMARY 13 JUDGMENT; REFERRING TO SETTLEMENT PROCEEDINGS; 14 M. B. ATCHLEY, et al., STAYING CASE; INSTRUCTIONS TO CLERK 15 Defendants. 16 (Docket No. 72) 17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983, against defendants at Salinas Valley State Prison (“SVSP”). The third 20 amended complaint (“TAC”) is the operative complaint in this action. Dkt. No. 38. The 21 Court found the TAC stated three cognizable claims against the sole defendant, S. 22 Tomlinson, and ordered the matter served; all other defendants and claims were dismissed. 23 Dkt. No. 40. The Court later granted Defendant Tomlinson’s motion to dismiss two claims 24 for failure to state a claim and ordered briefing on the remaining free speech claim under 25 the First Amendment. Dkt. No. 69. 26 Defendant filed a motion for summary judgment on the grounds that the undisputed 27 1 facts show that Plaintiff’s First Amendment rights were not violated. Dkt. No. 72-3.1 2 Plaintiff filed an opposition and declaration. Dkt. Nos. 81, 81-2. Defendant filed a reply. 3 Dkt. No. 84. 4 For the reasons discussed below, Defendant’s motion for summary judgment is 5 DENIED. 6 7 DISCUSSION 8 I. Statement of Facts 9 This action involves the allegation that Defendant S. Tomlinson, a Senior Librarian 10 at SVSP, violated Plaintiff’s First Amendment right to free speech when she expelled him 11 from the library for complaining on July 21, 2020. Dkt. No. 69 at 2. 12 Defendant requests judicial notice (“RJN”) under Federal Rules of Evidence 201, of 13 the various court cases and motions filed by Plaintiff as shown under Exhibits 3 and 4. 14 Dkt. No. 72-2. Under Rule 201, the Court may judicially notice a fact that is not subject to 15 reasonable dispute because it “(1) is generally known within the trial court’s territorial 16 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy 17 cannot reasonably be questioned.” Fed. R. Evid. 201(b). Furthermore, a district court 18 “may take notice of proceedings in other courts, both within and without the federal 19 judicial system, if those proceedings have a direct relation to matters at issue.” Bias v. 20 Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal quotation marks and citations 21 omitted) (granting request to take judicial notice in § 1983 action of five prior cases in 22 which plaintiff was pro se litigant, to counter her argument that she deserved special 23 treatment because of her pro se status). Accordingly, the Court finds good cause to grant 24 Defendant’s request under Fed. R. Evid. 201(b). 25 26 1 In support, Defendant provides the declaration of Deputy Attorney General, counsel for Defendant, along with the deposition transcript of Plaintiff taken on October 31, 2023, 27 Dkt. No. 72-4 (Ex. 1), and the declaration of Defendant S. Tomlinson, Dkt. No. 72-5. 1 Plaintiff also filed a request for judicial notice of several attached exhibits, which 2 are in addition to his opposition and other exhibits. Dkt. No. 81-1. His request is 39 pages 3 long and includes legal arguments beyond that of a mere request for judicial notice. Id. at 4 1-39. For example, Plaintiff asserts he has been “unconstitutionally denied access to the 5 courts and prevented from assisting in his own defense due to state created impediments 6 which adversely effected [his] personal liberty interests and which taken together denied 7 [him] a fair review of all legal proceedings.” Id. at 2. However, this matter involves only 8 a single claim of free speech violation; his right of access to the courts and denial of liberty 9 interests claims have been dismissed. Accordingly, this argument is irrelevant and beyond 10 the scope of this action. Furthermore, the attached exhibits include various memoranda 11 concerning the law library, several “Daily Program Status Report, Part A - Plan of 12 Operation /State & Inmate Notification[s]” for various dates, a grievance, a letter from the 13 Office of the Inspector General, and documents related to Plaintiff’s alleged disability and 14 accommodations. Id. at 81-1 at 40-77. Plaintiff’s request includes no relevant argument as 15 to why the offered exhibits are appropriate for judicial notice under Rule 201(b), nor does 16 he identify what specific facts therein are appropriate for judicial notice. Accordingly, 17 Plaintiff’s request for judicial notice is DENIED. The arguments raised in the request for 18 judicial notice and the attached exhibits shall not be considered in deciding Defendant’s 19 summary judgment motion. 20 B. Access to Law Library 21 Inmates can access the law library by requesting Priority Legal User (“PLU”) 22 status. California Code of Regulations, tit. 15, § 3122 governs PLU status and states in 23 relevant part: 24 (b) Inmates who have established court deadlines may apply for Priority 25 Legal Status (PLU) to the prison law libraries. Inmates who are granted PLU status based on their application shall receive higher priority to prison 26 law library resources than other inmates. All inmate who are not on PLU status are on General Legal User (“GLU”) status. 27 … 1 2 (7) PLU status is intended to assist inmates to do legal work in a quiet law library setting. An inmate on PLU status who, while in the law library, is 3 observed by staff to act in an unreasonably disruptive manner or to engage in non-legal work shall be removed from the PLU list and shall be 4 dismissed from the library for that day. Inmates who are removed from the 5 PLU list for these reasons shall be ineligible to reapply for PLU status for 30 calendar days, but may continue to use the law library on GLU status. 6 Cal. Code Regs. tit. 15, § 3122(b),(7). 7 Once a request for a PLU appointment is received, librarian staff schedule them 8 subject to availability, which can be impacted by staffing issues and the number of inmates 9 wishing to use the library. Id. at § 3122(b)(4). Inmates who are removed from the PLU 10 list under subsection (7) may continue to use the law library on GLU status, until they can 11 reapply for PLU status. Id. at §§ 3122, 3123(b). Inmates who cannot access the library, 12 for whatever reason, can use the paging system whereby they put their documents for 13 copying in an envelope, and then mail them to the law library using the prison mailing 14 system. Pl. Dep. at 29:16-23, Dkt. No. 72-4 (Ex. 1); Cal. Code of Reg., tit. 15, § 3123(c). 15 C. Incident on July 21, 20202 16 According to the SAC, on July 21, 2020, Plaintiff went to the law library for a 17 scheduled appointment. Dkt. No. 38 at ¶ 1. He handed Defendant Tomlinson his “only 18 original habeas corpus petition with exhibits to be copied, ready to be sent to the court.” 19 Id. According to the allegations in the TAC, Defendant read Plaintiff’s confidential legal 20 documents and kept the originals and copies without a written explanation. Id. at ¶ 2. 21 Defendant sounded the alarm and had correctional officers remove Plaintiff from the 22 library in handcuffs, and later issued Plaintiff an RVR. Id. at ¶ 3. Plaintiff alleges that 23 Defendant did so “as an adverse action for complaining.” Id. 24 According to Defendant, Defendant Tomlinson reviewed the documents pursuant to 25 26 27 2 The following facts are undisputed unless otherwise indicated. 1 prison policy to make sure they qualified as legal documents entitled to copying under the 2 CDCR regulations. Tomlinson Decl. ¶ 3, Dkt. No. 72-5 at 2. Defendant authorized one 3 document to be copied, but determined the second document did not comply with the 4 regulations. Id. Defendant returned all original documents to Plaintiff. Id. Later that day, 5 when Defendant saw another librarian copying Plaintiff’s document that had been deemed 6 non-compliant, she informed the librarian of the issue and returned all documents to 7 Plaintiff. Id. at ¶ 4. Plaintiff then became argumentative, demanding copies and accusing 8 Defendant of reading his legal mail. Id. According to Defendant, Plaintiff was not 9 listening to her instructions and was being disrespectful, as well as acting as if the copying 10 regulations did not apply to him. Id. Defendant informed Plaintiff that he needed to leave 11 because she felt his conduct was disruptive to other patrons and staff. Id. Office Berry 12 entered the library on his own initiative and informed Plaintiff that he needed to leave the 13 library. Id. at ¶ 5. According to the library log provided by Defendant Tomlinson, the 14 following notation was indicated for July 21, 2020: “Disruptive. I/M became upset and 15 argumentative when copy request denied. Removed by C/O Berry at approx.10:20.” 16 Tomlinson Decl., Ex. 2, Dkt. No. 72-5 at 4. 17 Defendant Tomlinson states that she did not issue a rules violation report to 18 Plaintiff. Id. at ¶ 6. She also states that as the Senior Librarian, she receives, reviews, and 19 approves all PLU requests to use the law library. Id. at ¶ 7. Defendant has received 20 multiple subsequent requests from Plaintiff and approved them. Id. Defendant denies 21 barring Plaintiff from entering the library at any point. Id. 22 Plaintiff filed a declaration which does not address the July 21, 2020 incident. See 23 generally Dkt. No. 81-2. The declaration only makes generalized allegations against 24 “staff” and describes actions by individuals that occurred in 2021, and do not involve 25 Defendant Tomlinson. Id. at ¶¶ 23-31. On the other hand, Plaintiff makes allegations in 26 his deposition and in his opposition brief that contradict Defendant Tomlinson’s account. 27 During his deposition, Plaintiff stated that Defendant Tomlinson did not return his habeas 1 petition. Pl.’s Dep. at 33:8. He also stated that Defendant Tomlinson pushed a silent 2 alarm located on her belt which caused multiple officers to rush into the law library. Id. at 3 47:9-17. Plaintiff stated that, “I know from my… position, I didn’t do anything to deserve 4 me to be removed.” Pl.’s Dep. at 49:20-21. Lastly, he stated that he “didn’t recollect any 5 explanation” for his removal, id. at 50:12-13, or “if there [were] any exchanges of words,” 6 id. at 57:15-16. In his opposition, Plaintiff asserts that when Defendant refused to return 7 his documents, Plaintiff “remained calm and requested Defendant to release him from 8 inside the law library room because Plaintiff was locked inside law library requiring 9 correctional officer (Berry) to be called in to the law library to unlock the door and release 10 Plaintiff to that he can report the incident to supervising custody officials at the program 11 office.” Dkt. No. 81 at 73. Plaintiff states that Defendant would not allow Plaintiff to 12 report the matter and “pushed the silent alarm before Plaintiff had an opportunity to 13 contact supervisory officials.” Id. 14 D. Plaintiff’s Continued Legal Activity 15 In the two months after the incident, Plaintiff went to the law library on six separate 16 dates: July 27, 2020, July 28, 2020, August 11, 2020, August 12, 2020, August 19, 2020, 17 and August 26, 2020. Each appointment request completed by Plaintiff was granted. 18 Tomlinson Decl, Ex. 2, Dkt. No. 72-5 at 4-5. 19 Plaintiff also filed several legal documents between the months of July through 20 December 2020. Specifically, Plaintiff initiated three appeals in the Ninth Circuit, as well 21 as the instant action in October 2020. RJN Ex. 3, Dkt. No. 72-2 at 4-5. Plaintiff also filed 22 numerous filings in various civil cases he was litigating. Id., Ex. 4, Dkt. No. 72-2 at 7-8. 23 II. Summary Judgment 24 Summary judgment is proper where the pleadings, discovery and affidavits show 25 that there is “no genuine dispute as to any material fact and the movant is entitled to 26 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 27 “against a party who fails to make a showing sufficient to establish the existence of an 1 element essential to that party’s case, and on which that party will bear the burden of proof 2 at trial . . . since a complete failure of proof concerning an essential element of the 3 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 4 Catrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 5 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 6 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 8 Generally, the moving party bears the initial burden of identifying those portions of 9 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 10 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 11 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 12 than for the moving party. But on an issue for which the opposing party will have the 13 burden of proof at trial, the moving party need only point out “that there is an absence of 14 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 15 to the motion is merely colorable, or is not significantly probative, summary judgment may 16 be granted. See Liberty Lobby, 477 U.S. at 249-50. 17 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 18 his own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 19 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 20 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 21 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 22 The Court’s function on a summary judgment motion is not to make credibility 23 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 24 Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The 25 evidence presented and the inferences to be drawn from the facts must be viewed in a light 26 most favorable to the nonmoving party. See id. at 631. The nonmoving party has the 27 burden of identifying with reasonable particularity the evidence that precludes summary 1 judgment. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). If the nonmoving party 2 fails to do so, the district court may properly grant summary judgment in favor of the 3 moving party. See id. 4 “When opposing parties tell two different stories, one of which is blatantly 5 contradicted by the record, so that no reasonable jury could believe it, a court should not 6 adopt that version of the facts for purposes of ruling on a motion for summary judgment.” 7 Scott v. Harris, 550 U.S. 372, 380-83 (2007) (police officer entitled to summary judgment 8 based on qualified immunity in light of video evidence capturing plaintiff’s reckless 9 driving in attempting to evade capture which utterly discredits plaintiff’s claim that there 10 was little or no actual threat to innocent bystanders); see Intel Corp. Inv. Policy Comm. v. 11 Sulyma, 140 S. Ct. 768, 779 (2020) (in ERISA case where the issue was whether plaintiff 12 had actual knowledge of an alleged fiduciary breach, the court indicated that plaintiff’s 13 denial of knowledge could be discredited at summary judgment stage if it was blatantly 14 contradicted by electronic records showing plaintiff viewed a website containing relevant 15 disclosures of investment decisions). 16 A. Free Speech 17 A prisoner retains those First Amendment rights that are “not inconsistent with his 18 status as a prisoner or with the legitimate penological objectives of the corrections 19 system.” Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (quoting Jones 20 v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 129 (1977)) (internal 21 quotation marks omitted).3 Accordingly, a prison regulation that impinges on a prisoner’s 22 First Amendment right to free speech is valid only “if it is reasonably related to legitimate 23 penological interests.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citing Turner v. Safley, 24 482 U.S. 78, 89 (1987)); see, e.g., Hargis v. Foster, 312 F.3d 404, 410 (9th Cir. 2002) (rule 25 26 3 The First Amendment is made applicable to the states through the Fourteenth Amendment . See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n. 43 (1982); 27 Edwards v. South Carolina, 372 U.S. 229, 235 (1963). 1 subjecting prisoners to discipline for coercing guard into not enforcing prison rules was, on 2 its face, reasonably related to legitimate penological interests). 3 The Supreme Court has identified four factors to consider when determining the 4 reasonableness of a prison regulation: (1) whether there is a “valid, rational connection 5 between the prison regulation and the legitimate governmental interest put forward to 6 justify it”; (2) “whether there are alternative means of exercising the right that remain open 7 to prison inmates”; (3) “the impact accommodation of the asserted constitutional right will 8 have on guards and other inmates and on the allocation of prison resources generally”; and 9 (4) the “absence of ready alternatives”, or, in other words, whether the rule at issue is an 10 “exaggerated response to prison concerns.” Turner, 482 U.S. at 89-90. 11 A claim that the application of a prison regulation violated a prisoner-plaintiff’s 12 First Amendment right to free speech does not end even if the regulation, on its face, 13 satisfies the Turner test. Hargis, 312 F.3d at 410. Although facially valid, the regulation 14 may be unconstitutional as applied to the prisoner-plaintiff. See id. at 410-12 (finding 15 triable issue as to whether prison officials’ discipline of a prisoner for coercion, for his 16 statement to a prison guard that the guard’s actions and statements could come up in 17 pending state court litigation, violates the prisoner’s right to free speech, when a jury could 18 reasonably find that charging the prisoner with such a severe disciplinary infraction was an 19 exaggerated response to prisoner’s conduct). 20 Defendant asserts that the regulation at issue, Cal. Code Regs. tit. 15, § 3122, is 21 constitutional under the Turner factors because it is related to internal order and discipline 22 of the law library and Plaintiff still had access to the law library after the incident. Dkt. 23 No. 72 at 10-11. Under the first Turner factor, Defendant asserts that providing a quiet 24 environment for library patrons to conduct legal work is a legitimate penological interest 25 and the regulation allowing for disruptive individuals to be dismissed is constitutional. Id. 26 at 11. Defendant points out that rules similar to § 3122 are in place at a majority of public 27 libraries which also enforce them by dismissing patrons. Id. In the public library context, 1 these rules and regulations have been recognized as constitutional. Id., citing Brown v. 2 State of La., 383 U.S. 131, 142 (1966) (recognizing the library as a place of quiet 3 contemplation); Van Den Heuvel v. Dorothy, No. 22:1-CV-2176 (TLN) (CKD) PS, 2022 4 WL 95237v 3 (E.D. Cal. Jan. 10, 2022) (a libraries enforcement powers are at its peak 5 when protecting staff and patrons). Defendant also asserts that the Ninth Circuit has 6 recognized that limiting an inmate’s First Amendment rights for the furtherance of 7 correctional goals in constitutional, such as in Mauro v. Arpaio, 188 F3d 1054, 1060 (9th 8 Cir. 1999), which upheld a regulation prohibiting inmates from possessing sexually 9 explicit material, citing the relationship between the possession of such materials and the 10 problems sought to be addressed by the policy, the sexual harassment of female officers, 11 jail security, and rehabilitation of inmates. Id. at 12. Accordingly, Defendant asserts the 12 first Turner factor is satisfied. 13 Defendant also asserts that under the second Turner factor, Plaintiff continued to 14 have access to the law library after the incident and thus alternative means remained 15 available. Dkt. No. 72-3 at 12. Defendant asserts that Plaintiff was never restricted from 16 further access and that he utilized the library extensively during his incarceration, 17 including during July and August 2020. Id. Nor did his removal from the library impact 18 his access to the courts since he was able to make numerous filings and initiated several 19 cases in the months after the incident. Id. at 13. Lastly, Defendant asserts that even if 20 Plaintiff could not access the law library, he had access to paging services by which he 21 could request legal material be delivered by library staff. Id. Defendant asserts that the 22 records show that Plaintiff did utilize the paging service to make copies of documents. Id., 23 citing Pl.’s Dep. at 29:18-23, Dkt. No. 72-4. 24 Thirdly, Defendant asserts that the third Turner factor also weighs in their favor 25 because allowing inmates to argue and make demands from staff would disrupt the library 26 used by other inmates to conduct legal work and reduce the entire populations’ access to 27 the courts. Dkt. No. 72-3 at 13. Defendant contends that not promptly removing 1 disruptive inmates could cause increased safety concerns for staff. Id. at 14. As for the 2 final Turner factor, Defendant asserts that Plaintiff has not identified any reasonable 3 alternative that would have accommodated him at a de minimis cost. Id., citing Turner, 4 482 U.S. at 90-91. Defendant concludes that with all the Turner factors satisfied, 5 Plaintiff’s free-speech cause of action should be dismissed. 6 Lastly, Defendant asserts that the regulation was applied to Plaintiff in a 7 constitutionally valid manner. Dkt. No. 72-3 at 14. Defendant asserts that Plaintiff is 8 unable to remember anything that would create a triable issue of fact in this regard. Id. 9 Defendant points out that Plaintiff does not recall the reason he was removed from the 10 library, the date that the removal occurred, or even the events that led to his expulsion. Id., 11 citing Pl.’s Dep. at 49:16-50:9, 17:12-14, 47:9-17. Defendant also asserts that Plaintiff 12 does not recall any of the conversation between himself and Defendant on that day or why 13 she refused to copy his documents. Id. at 18-21. In contrast, Defendant recalls that she 14 rejected Plaintiff’s documents for copying because it was non-compliant with the 15 regulations, and that Plaintiff later became unreasonably disruptive when she alerted 16 another librarian to this issue. Dkt. No. 72-3 at 15; Tomlinson Decl. ¶ 4. Then Officer 17 Berry came to the library on his own initiative and escorted Plaintiff out of the library. Id. 18 Based on this evidence, Defendant asserts that she acted appropriately and applied the 19 regulation in a valid manner. Id. 20 In opposition, Plaintiff submits a lengthy brief asserting that his rights under Equal 21 Protection clause, due process, and First Amendment were violated. Dkt. No. 81. With 22 regard to the First Amendment, Plaintiff asserts that his rights involving access to the 23 courts and against retaliation were violated, in addition to his right to free speech. Id. at 24 59-71, 87-90. However, the only remaining claim in this action is the free speech claim, as 25 all other claims and defendants have been dismissed from this action. See Dkt. Nos. 40, 26 69. Accordingly, most of Plaintiff’s arguments are irrelevant and beyond the scope of this 27 action, such as his assertion of supervisor liability against Warden Atchley who was 1 dismissed from this action on February 17, 2022, because Plaintiff did not include him as a 2 defendant in the second amended complaint. Dkt. No. 28; see Ferdik v. Bonzelet, 963 F.2d 3 1258, 1262 (9th Cir. 1992). Accordingly, only those arguments that are relevant to his free 4 speech claim shall be considered, specifically pages 65 through 73 of his opposition. Dkt. 5 No. 81 at 72-80. 6 Plaintiff asserts that Defendant “may not exercise unfettered discretion by denying 7 Plaintiff access for expressive activity especially those that defendant encouraged and 8 placed blame on Plaintiff.” Dkt. No. 81 at 72, citing to Marsh v. Alabama, 326 U.S. 501 9 (1946). Plaintiff asserts that the claim that he was disruptive is “false… without proof, 10 witnesses, or a disciplinary action.” Id.at 75. He asserts that under Brown, peaceful and 11 quiet protestors are allowed to assemble in the reading room of a public library. Id. at 76. 12 He asserts that Defendant’s allegation that he was being disruptive is “untrue,” but that 13 even if it were true, “it would be based solely on Defendant’s own personal bias bigoted 14 thoughts and views.” Id. at 77. 15 In reply, Defendant asserts that Plaintiff has not provided any competent evidence. 16 Dkt. No. 84 at 2. Defendant points out that Plaintiff has only provided a voluminous 17 amount of grievances that concern events not alleged in the TAC. Id. Defendant also 18 points out that Plaintiff’s exhibits directly contradict his notion that Defendant did not 19 return or that she destroyed his documents on July 21, 2020. Id., citing Dkt. No. 81 at 66, 20 153. Defendant asserts that Plaintiff’s numerous grievances demanding daily access to the 21 library do not demonstrate that Defendant Tomlinson violated his right to speech on July 22 21, 2020. Id. Defendant contends that she has established that there was a legitimate 23 penological objective for removing Plaintiff from the law library. Id. at 3. 24 Viewing the evidence in the light most favorable to Plaintiff, Defendant has failed 25 to establish the absence of genuine issues of material facts. It is undisputed that the 26 regulation at issue, Cal. Code Regs. tit. 15, § 3122(b), satisfies the Turner factors on its 27 face. Rather, Plaintiff challenges the manner in which the regulation was applied to him. 1 Contrary to Defendant Tomlinson’s version of events, Plaintiff denies being disruptive to 2 warrant being expelled from the library. Although Defendant challenges Plaintiff’s failure 3 to recall certain aspects of the event during his deposition, such as the date and what 4 specific words were exchanged, Plaintiff’s recollection is not inconsistent with the 5 allegations in the SAC or his statements in opposition. He consistently alleges that when 6 he gave legal documents to be copied, Defendant took them and refused to copy them. 7 And while Defendant asserts that Plaintiff responded by being argumentative and 8 disruptive, Plaintiff asserts that he calmly voiced his complaints. Whether Plaintiff’s 9 response was sufficiently disruptive to warrant ejection from the library under prison 10 regulations is clearly a material fact which is in dispute. 11 Furthermore, although Plaintiff’s reliance on Marsh is misplaced as that case does 12 not apply to the circumstances at bar,4 he is correct that Defendant Tomlinson offers no 13 evidence corroborating her declaration; the only other evidence she offers is her own 14 library log. However, corroboration is not a matter for summary judgment because that 15 would improperly veer into weighing the evidence which is not appropriate here. In 16 evaluating a summary judgment motion, the facts must be construed in the light most 17 favorable to Plaintiff as the nonmoving party. See T.W. Elec. Serv., Inc., 809 F.2d at 630. 18 In conclusion, it simply cannot be said that Plaintiff’s version of the facts submitted 19 in opposition to summary judgment is so blatantly contradicted by his deposition testimony 20 that no reasonable jury could believe it. See Scott, 550 U.S. at 380-83. What the Court 21 finds troubling is that Plaintiff’s grievance challenging Defendant Tomlinson’s failure to 22 copy his legal documents and confiscating them was granted on appeal. Dkt. No. 38-1 at 23 15. The Office of Appeals (“OA”) stated that there was “insufficient evidence to support 24 the conclusion that the institution complied with section 3162(d).” Id. Among the lack of 25 evidence, the OA found the institution failed to articulate how Plaintiff’s requested legal 26 27 4 Marsh involved a municipal ordinance that prohibited the distribution of religious literature in a public street. 1 documents were in violation of regulations and to describe what type of legal documents 2 were presented for duplication services. Id. Accordingly, the inference is that Plaintiff 3 may well have been justified in “calmly” complaining when his request for copies was 4 denied. If Plaintiff’s complaining was not disruptive, then Defendant unconstitutionally 5 applied a regulation for the sole purpose of silencing Plaintiff’s speech which is not 6 permitted under Brown, 383 U.S. at 142. 7 Based on the record, Defendant has failed to show that there is an absence of 8 evidence to support Plaintiff’s case. As such, there are disputed issues of material fact 9 with respect to the free speech claim against Defendant Tomlinson. See Celotex Corp., 10 477 U.S. at 323. Accordingly, Defendant’s motion for summary judgment must be denied. 11 B. Qualified Immunity 12 Defendant asserts in the alternative that she is entitled to qualified immunity. Dkt. 13 No. 72-3 at 15. 14 The defense of qualified immunity protects “government officials . . . from liability 15 for civil damages insofar as their conduct does not violate clearly established statutory or 16 constitutional rights of which a reasonable person would have known.” Harlow v. 17 Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity protects “‘all but the 18 plainly incompetent or those who knowingly violate the law;’” defendants can have a 19 reasonable, but mistaken, belief about the facts or about what the law requires in any given 20 situation. Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 21 335, 341 (1986)). “Therefore, regardless of whether the constitutional violation occurred, 22 the [official] should prevail if the right asserted by the plaintiff was not ‘clearly 23 established’ or the [official] could have reasonably believed that his particular conduct was 24 lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). 25 A right is clearly established if it were “sufficiently clear [at the time of the conduct 26 at issue] that every reasonable official would have understood that what he is doing 27 violates that right.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015). “The right must be 1 settled law, meaning that it must be clearly established by controlling authority or a robust 2 consensus of cases of persuasive authority.” Tuuamalemalo v. Greene, 946 F.3d 471, 477 3 (9th Cir. 2019). If the law did not put the officer on notice that his conduct would be 4 clearly unlawful, summary judgment based on qualified immunity is appropriate. Saucier, 5 533 U.S. at 202. 6 A court considering a claim of qualified immunity must determine whether the 7 plaintiff has alleged the deprivation of an actual constitutional right and whether such right 8 was clearly established such that it would be clear to a reasonable officer that his conduct 9 was unlawful in the situation he confronted. See Pearson v. Callahan, 555 U.S. 223 10 (2009) (overruling the sequence of the two-part test that required determination of a 11 deprivation first and then whether such right was clearly established, as required by 12 Saucier, 533 U.S. at 194); Henry A., 678 F.3d at 1000 (qualified immunity analysis 13 requiring (1) determining the contours of the clearly established right at the time of the 14 challenged conduct and (2) examining whether a reasonable official would have 15 understood that the challenged conduct violated such right). The court may exercise its 16 discretion in deciding which prong to address first, in light of the particular circumstances 17 of each case. See Pearson, 555 U.S. at 236 (noting that while the Saucier sequence is 18 often appropriate and beneficial, it is no longer mandatory). “[U]nder either prong, courts 19 may not resolve genuine disputes of fact in favor of the party seeking summary judgment,” 20 and must, as in other cases, view the evidence in the light most favorable to the non- 21 movant. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). For example, regarding the 22 first prong, the threshold question must be: Taken in the light most favorable to the party 23 asserting the injury, do the facts alleged show the officer’s conduct violated a 24 constitutional right? Saucier, 533 U.S. at 201. 25 Defendant’s qualified immunity argument must be rejected because she does not 26 present the facts in the light most favorable to Plaintiff as the nonmoving party. See Tolan, 27 134 S. Ct. at 1866. Defendant asserts that Plaintiff’s request for copies was denied for 1 valid reasons and that she properly expelled him from the library only after he became 2 disruptive under the regulations. However, the facts viewed in his favor are that Plaintiff 3 made a valid claim for copies which Defendant denied without justification. When 4 Plaintiff “calmly” voiced his complaint about the refusal, Defendant expelled him from the 5 library. As such, it simply cannot be said that Defendant Tomlinson had a “reasonable, but 6 mistaken belief” that she could expel Plaintiff from the library simply for exercising his 7 First Amendment rights and complaining about the unjustified denial for copies. Saucier, 8 533 U.S. at 202. Accordingly, Defendant has not established that she is entitled to 9 qualified immunity on the free speech claim. 10 C. New Claims 11 Plaintiff raises a new claim for the first time in this action, alleging that Defendant’s 12 “unauthorized negligent or intentional deprivation of Plaintiff’s legal document properties 13 require meaningful post-deprivation remedies.” Dkt. No. 81 at 91. However, Plaintiff was 14 granted leave three times to file an amended complaint that adequately pleaded cognizable 15 claims. See Dkt. Nos. 14, 21, 36. He sets forth no reason why he should now be permitted 16 to amend to add a new claim this late in the proceedings nor any explanation as to why he 17 did not attempt to include this claim in his previous amendments. Accordingly, leave to 18 amend add new claims shall not be granted. 19 III. Referring Case to Settlement Proceedings 20 The Court has established a Pro Se Prisoner Settlement Program under which 21 certain prisoner civil rights cases may be referred to a neutral Magistrate Judge for 22 settlement. In light of the existence of triable issues of fact as to whether Defendant 23 violated Plaintiff’s free speech rights under the First Amendment, the Court finds the 24 instant matter suitable for settlement proceedings. Accordingly, the instant action will be 25 referred to a neutral Magistrate Judge for mediation under the Pro Se Prisoner Settlement 26 Program. 27 /// 1 CONCLUSION 2 For the reasons stated above, the Court orders as follows: 3 1. Defendant Tomlinson’s motion for summary judgment on the free speech 4 || claim under the First Amendment is DENIED. Dkt. No. 72. 5 2. The instant case is REFERRED to Judge Robert M. Illman pursuant to the 6 || Pro Se Prisoner Settlement Program for settlement proceedings on the claim in this action 7 || against Defendants as described above. The proceedings shall take place within ninety 8 || (90) days of the filing date of this order. Judge [lman shall coordinate a time and date for 9 || a settlement conference with all interested parties or their representatives and, within ten 10 || (10) days after the conclusion of the settlement proceedings, file with the court a report 11 || regarding the prisoner settlement proceedings. 2 3. Other than the settlement proceedings ordered herein, and any matters 5 13 || Magistrate Judge IIIman deems necessary to conduct such proceedings, this action is S 14 || hereby STAYED until further order by the court following the resolution of the settlement 3 15 || proceedings. a 16 4, The Clerk shall send a copy of this order to Magistrate Judge IlIman in 3 17 Eureka, California. 18 This order terminates Docket No. 72. 19 IT ISSO ORDERED. 20 || Dated: _ August 5, 2024 Adunfhcncan BETH LABSON FREEMAN United States District Judge 22 23 24 25 PRO SEBLECR □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 26 27 28 17