Stevenson v. Beard

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVIE J. STEVENSON, Case No.: 16-CV-3079 TWR (RBM) CDCR #K-16324, 12 ORDER GRANTING IN PART Plaintiff, 13 AND DENYING IN PART vs. DEFENDANTS’ MOTION FOR 14 SUMMARY JUDGMENT JEFFREY BEARD, et al., 15 PURSUANT TO FED. R. CIV. P. 56 Defendants. 16 (ECF No. 167) 17 18 19 Plaintiff Stevie J. Stevenson, currently incarcerated at California State Prison – 20 Solano located in Vacaville, California, and proceeding pro se, filed this civil rights action 21 pursuant to 42 U.S.C. § 1983, on December 19, 2016. (See ECF No. 1 (“Compl.”).) 22 BACKGROUND 23 I. Relevant Procedural Background 24 As stated above, Plaintiff initiated this action on December 19, 2016, when he filed 25 his original Complaint. (See generally Compl.) In his original Complaint, Plaintiff named 26 Defendants Jeffrey Beard, Scott Kernan, Shannon Swain, Raymond Madden, Dennis 27 / / / 28 / / / 1 Brown, N. Telles, C. Bell, Patricia Couch, C. Walker, John & Jane Does, J. Rohrer, and 2 Unknown Mailroom Staff. (See generally id.) On May 16, 2017, the Court sua sponte 3 screened Plaintiff’s Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. (See 4 generally ECF. No. 6.) The Court dismissed Plaintiff’s Complaint in “its entirety for 5 failure to state a claim.” (See id. at 14.2) Plaintiff, however, was granted leave to file an 6 amended pleading. (See id.) Plaintiff was cautioned that his amended complaint “must be 7 complete by itself without reference to his original pleading” and any Defendants “not 8 named and any claim not re-alleged in his Amended Complaint will be considered waived.” 9 (See id. at 17 (citing S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner 10 & Co., 896 F.2d 1542, 1546 (9th Cir. 1989)).) 11 On June 8, 2017, Plaintiff filed his First Amended Complaint. (See generally ECF 12 No. 8 (“FAC”).) In his First Amended Complaint, Plaintiff named Defendants Beard, 13 Unknown mailroom staff, Mailroom staff “C,” Couch, Walker, Bell, Telles, Madden, and 14 Kernan. (See id. at 2–4.) Plaintiff no longer named Swain, Brown, John & Jane Does, or 15 Rohrer as Defendants in his First Amended Complaint, however, and, consequently, the 16 claims against these Defendants are deemed waived. See Hal Roach Studios, 896 F.2d at 17 1546. The Clerk of Court will therefore be directed to terminate these Defendants from 18 the Court’s docket. 19 Defendants Kernan, Telles, Madden, Beard, Bell, and Walker filed a motion seeking 20 to dismiss a portion of Plaintiff’s First Amended Complaint pursuant to Federal Rule of 21 Civil Procedure 12(b)(6). (See generally ECF No. 32.) The Court adopted the Report and 22 23 24 1 Patricia Couch was initially identified in Plaintiff’s pleadings as “Mailroom Staff PC.” Plaintiff later 25 requested that “Mailroom Staff PC” be substituted with Patricia Couch. (See generally ECF No. 112.) The Honorable Ruth Bermudez Montenegro granted this request on July 7, 2020. (See generally ECF No. 26 113.) 27 2 Throughout this Order and for ease of consistency and reference, the Court will cite to each document in the record using both the number assigned to the document and the page number automatically 28 1 Recommendation issued by Magistrate Judge Montenegro, (see generally ECF No. 47), 2 and dismissed Plaintiff’s Claim I with prejudice and dismissed all claims against Defendant 3 Kernan. (See generally ECF No. 61.) 4 On June 4, 2021, Defendants filed a Motion for Summary Judgment pursuant to 5 Federal Rule of Civil Procedure 56. (See generally ECF No. 167 (“Mot.”).) The Court 6 provided Plaintiff with notice of the requirements for opposing summary judgment as 7 required by Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), and Rand v. Rowland, 8 154 F.3d 952 (9th Cir. 1998) (en banc). (See generally ECF No. 176.) After he was granted 9 several extensions of time, (see generally ECF Nos. 191, 208, 212), Plaintiff filed his 10 Opposition on October 6, 2021. (See generally ECF No. 213 (“Opp’n”).) On 11 November 12, 2021, Defendants filed their Reply. (See generally ECF No. 216 (“Reply”).) 12 Plaintiff filed a Surreply on December 9, 2021. (See generally ECF No. 219 (“Surreply”).) 13 II. Allegations in Plaintiff’s Verified First Amended Complaint 14 A. Incoming Legal Mail 15 Plaintiff alleges that on May 27, 2016, while he was housed as Centinela State Prison 16 (“CEN”), a correctional officer issued Plaintiff a “legal envelope from the California 17 Innocence Project that was clearly stamped ‘confidential legal mail.’” (See FAC at 19.) 18 After inspecting the envelope, Plaintiff determined that there were “missing items” from 19 the envelope including “affidavits, declarations, and documents,” which he claims is the 20 result of this mail being opened and “read outside his presence.” (See id.) Plaintiff claims 21 that unnamed mailroom staff “stole his work product that dealt with his current criminal 22 case.” (See id.) Plaintiff had his family pay for an attorney to obtain these “missing 23 documents” so he could “file his petition for writ of habeas corpus.” (See id.) 24 On June 27, 2016, Plaintiff was given another “envelope clearly marked legal 25 confidential.” (See id.) This mailing was “return[ed] mail from the Los Angeles County 26 District Attorney’s Office.” (See id.) Again, Plaintiff “determined that the mail was 27 opened and read by the mailroom staff outside his presence.” (See id.) 28 / / / 1 Plaintiff filed a grievance regarding the two incidents of alleged tampering with his 2 purported legal mail. (See id.) Plaintiff’s grievance was denied on December 8, 2016, at 3 the Third Level of Review. (See id. at 20.) 4 On January 31, 2017, Plaintiff was given another envelope which he determined was 5 “legal confidential mail from the court that was opened out of [Plaintiff’s] presence and 6 read.” (See id.) Plaintiff further determined that the envelope, “despite having his legal 7 brief inside of it, was not an official envelope from the San Diego Superior Court.” (See 8 id.) Plaintiff believed that the legal mail from the San Diego Superior Court was “taken 9 out of its original official court envelope and placed in a regular envelope after being read 10 and possibly copied by staff.” (See id.) 11 Plaintiff filed another grievance on February 1, 2017, “about his mail being opened 12 and taken out of its original envelope.” (See id.) This grievance was denied, and when 13 Plaintiff attempted to file an appeal, “the mailroom denied him the opportunity to sign an 14 inmate trust account withdrawal form and send the mail for proper exhaustion.” (See d. at 15 20–21.) 16 B. Outgoing Legal Mail 17 This was not Plaintiff’s first issue with sending legal mail because of denied inmate 18 trust account withdrawals. For example, on October 17, 2016, Plaintiff “signed a CDC- 19 193 Form “Inmate Trust Account Withdrawal” to mail his grievance appeal to the “Chief 20 of Inmate Appeals Branch for Director’s Level Review.” (See FAC at 23.) By filing this 21 request, Plaintiff could obtain postage to mail his appeal of a grievance to the Chief of 22 Inmate Appeals. (See id.) The following day, however, Plaintiff’s request was returned to 23 him, and he was informed that, due to his indigency, he would have to provide postage. 24 (See id.) According to Plaintiff, this notice was “from mailroom staff member with the 25 initials PC.” (See id.) Plaintiff filed a grievance in response to this action taken by “PC” 26 and informed the “first level reviewer” that he was “not indigent” due to him “having a job 27 that paid him once a month.” (See id.) 28 / / / 1 Similarly, on November 27, 2016, Plaintiff signed another form to withdraw from 2 his inmate trust account so he could mail his “legal briefs” to attorneys that could “help 3 with his case due to his inability to conduct research and send a legal complaint” to the 4 state bar. (See id.) Plaintiff filed another form the following day to mail a “legal brief to 5 attorney Jennifer Hansen on the California Appellate Project.” (See id. at 24.) These forms 6 were returned to Plaintiff the following day with the notation that, due to his indigency, 7 Plaintiff had to “attach postage or obtain indigent envelopes.” (See id.) This time, the 8 notice was “signed by mailroom staff member with the initial ‘C’.” (See id.) Plaintiff filed 9 a grievance regarding this action “again stating the fact that he was not indigent due to have 10 a job assignment that paid him monthly funds.” (See id.) 11 On December 22, 2016, Plaintiff “signed an inmate trust account withdrawal form 12 to mail out a timely writ of mandate to Judge Craig Richman of the Los Angeles Superior 13 Court.” (See id.) Again, this form was returned to Plaintiff with the notation that he “could 14 not send any mail out without postage or indigent envelopes due to his being indigent.” 15 (See id.) This form was signed by “mailroom staff member C. Walker.” (See id.) Plaintiff 16 filed another grievance regarding this action. (See id.) 17 On February 1, 2017, Plaintiff signed another inmate trust account withdrawal form 18 to send his grievance appeals to the Chief of Inmate Appeals “in order to exhaust” his 19 grievances. (See id.) The following day, this form was returned to him with the notation 20 that he would not be able to send his mail “due to his indigency and failure to place postage 21 or indigent envelopes for mailing.” (See id.) This time, there was “no signature or initials 22 of the mailroom staff who refused to mail” Plaintiff’s grievances. (See id.) 23 On March 29, 2017, Plaintiff signed another “inmate trust account form” to “send 24 legal mail to attorney Karen Hunter” regarding “postconviction discovery proceeding.” 25 (See id.) Again, this form was returned to Plaintiff by “mailroom staff member with the 26 initials “C” indicating that he “needed to place postage on the envelope” or provide 27 “indigent envelopes.” (See id.) 28 / / / 1 On April 11, 2017, Plaintiff received mail from the California Innocence Project 2 “asking that he send additional legal material because they were in the process of assigning 3 his case to a student to review.” (See id.) After obtaining this material, Plaintiff submitted 4 another inmate trust account form to mail this material as requested. (See id.) This form, 5 signed by a mailroom staff member with the initials “C,” was returned to Plaintiff for 6 failing to provide postage or indigent envelopes. (See id.) 7 Plaintiff filed a “Pitchess and Brady motion” on April 20, 2017, and sent a copy to 8 Judge Richman, the Los Angeles City Attorney, Chief of the Los Angeles Police 9 Department, the San Diego City Attorney, and the Chief of the San Diego Police 10 Department. (See id.) Plaintiff also sent a letter to attorney Chris Campbell “to seek 11 assistance with his case.” (See id.) These mailings were returned to Plaintiff by “mailroom 12 staff member ‘C’” for failing to provide postage or indigent envelopes. (See id.) 13 Plaintiff claims that he submitted information to the “mailroom staff’s supervisor 14 Ms. Carol Bell” during “many interviews” that showed he “cannot be considered an 15 indigent inmate” because he “received a monthly payment for being a VEP tutor.” (See id. 16 at 26.) Despite “submitting this proof,” however, Plaintiff claims he has been “deprived 17 of the right to send his legal confidential mail out of the prison.” (See id.) As a result, 18 Plaintiff’s Pitchess and Brady motions purportedly were denied, along with his petition for 19 writ of habeas corpus. (See id.) He also was allegedly denied the ability to seek legal 20 counsel to assist him with legal research in all of his ongoing legal matters. (See id.) 21 C. Access to Counsel, Legal Materials, and Legal Research 22 In November of 2015, Attorney James Bisnow was “appointed ‘only’ to assist 23 [Plaintiff] with obtaining his discovery material” to support his petition for writ of habeas 24 corpus. (See FAC at 29.) Attorney Brisnow was not appointed to assist Plaintiff with the 25 filing of his petition. (See id.) On July 14, 2016, Attorney Bisnow was “given audiotapes 26 that were never turned over to [Plaintiff’s] trial attorney” and told Plaintiff that these “tapes 27 were exculpatory.” (See id.) On August 8, 2016, Attorney Brisnow wrote Plaintiff 28 informing Plaintiff that CEN’s Litigation Coordinator N. Telles stated that Plaintiff was 1 not permitted to have possession of these audio recordings. (See id.) Plaintiff believes that 2 there are other inmates at CEN who have “received their audio recordings and have had 3 law library staff retrieve a computer” allowing inmates to listen to their audio recordings 4 in the law library. (See id. at 30.) As a result of not being allowed to receive these audio 5 recordings, Plaintiff was “denied the right to bolster his claim” in his petition for writ of 6 habeas corpus that the prosecution witness in his criminal trial gave coerced testimony. 7 (See id.) 8 Plaintiff alleges that all actions set forth in his First Amended Complaint show a 9 pattern of behavior that “cumulatively deprived him of presenting a ‘non-frivolous’ claim.” 10 (See id. at 33–34.) Plaintiff claims that he has been “unable to conduct any legal research” 11 and denied the “opportunity to send his legal work out to receive the assistance necessary.” 12 (See id. at 37.) He is also “being deprived of the right to conduct legal research or receive 13 help from other attorneys due to the inactions and actions by CDCR staff.” (Id.) 14 LEGAL STANDARD 15 A court may grant summary judgment when it is demonstrated that there exists no 16 genuine dispute as to any material fact and that the moving party is entitled to judgment as 17 a matter of law. See Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 18 (1970). The party seeking summary judgment bears the initial burden of informing a court 19 of the basis for its motion and of identifying the portions of the declarations, pleadings, and 20 discovery that demonstrate an absence of a genuine dispute of material fact. See Celotex 21 Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it might affect the 22 outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 23 U.S. 242, 248–49 (1986). A dispute is “genuine” as to a material fact if there is sufficient 24 evidence for a reasonable jury to return a verdict for the nonmoving party. See Long v. 25 Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 26 Where the moving party will have the burden of proof on an issue at trial, the movant 27 must affirmatively demonstrate that no reasonable trier of fact could find other than for the 28 movant. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where 1 the non-moving party will have the burden of proof on an issue at trial, the movant may 2 prevail by presenting evidence that negates an essential element of the non-moving party’s 3 claim or by merely pointing out that there is an absence of evidence to support an essential 4 element of the non-moving party’s claim. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 5 210 F.3d 1099, 1102–03 (9th Cir. 2000). 6 If a moving party fails to carry its burden of production, then “the non-moving party 7 has no obligation to produce anything, even if the non-moving party would have the 8 ultimate burden of persuasion.” Id. But if the moving party meets its initial burden, the 9 burden then shifts to the opposing party to establish that a genuine dispute as to any material 10 fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 11 586 (1986). The opposing party cannot “rest upon the mere allegations or denials of [its] 12 pleading but must instead produce evidence that sets forth specific facts showing that there 13 is a genuine issue for trial.” See Estate of Tucker, 515 F.3d 1019, 1030 (9th Cir. 2008) 14 (internal quotation marks and citation omitted). 15 The evidence of the opposing party is to be believed, and all reasonable inferences 16 that may be drawn from the facts placed before a court must be drawn in favor of the 17 opposing party. See Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). 18 However, “[b]ald assertions that genuine issues of material fact exist are insufficient.” See 19 Galen v. Cty. of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); see also Day v. Sears 20 Holdings Corp., No. 11–09068, 2013 WL 1010547, *4 (C.D. Cal. Mar. 13, 2013) 21 (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise 22 genuine issues of fact and defeat summary judgment.”). A “motion for summary judgment 23 may not be defeated . . . by evidence that is ‘merely colorable’ or ‘is not significantly 24 probative.’” Anderson, 477 U.S. at 249–50 (citation omitted); see also Hardage v. CBS 25 Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce 26 evidence sufficient to create a genuine dispute of material fact, the moving party is entitled 27 to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103. 28 / / / 1 ANALYSIS 2 Defendants seek summary judgment as to Plaintiff’s First Amendment access-to- 3 courts claims, First Amendment retaliation claim, Fifth Amendment claim, Sixth 4 Amendment right-to-counsel claim, Fourteenth Amendment due process claim, and 5 Fourteenth Amendment equal protection claim.3 (See Mot. at 16–28.) In addition, 6 Defendants Madden and Telles argue that they are entitled to qualified immunity with 7 respect to Plaintiff’s claims regarding denial of possession of audio recordings. (See id. at 8 19.) Plaintiff opposes on all grounds, claiming that Defendants “have failed to meet their 9 burden of demonstrating that there is no dispute as to any material facts” and the facts set 10 forth in his verified First Amended Complaint show that the Defendants “violated 11 Plaintiff’s clearly established constitutional rights.” (See Opp’n at 1–2.) 12 I. First Amendment Claim – Legal Mail 13 In Count 2 of Plaintiff’s First Amended Complaint, he alleges that on a number of 14 occasions his legal mail was opened outside of his presence, tampered with, and items 15 within this mail stolen by mailroom staff. (See FAC at 19–21.) Prisoners “have a protected 16 First Amendment interest in having properly marked legal mail opened only in their 17 presence.” See Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017); see also 18 O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996) (prison officials’ policy of 19 “inspect[ing] the contents of all incoming and outgoing legal mail” outside the presence of 20 the prisoner may have an impermissible “chilling” effect on the constitutional right to 21 petition the government). A plaintiff need not show “any actual injury beyond the free 22 / / / 23 24 25 3 Defendants also seek summary judgment with respect to Plaintiff’s Claim 1 that former CDCR Secretary Beard’s decision to switch the use of Westlaw to Lexis to perform legal research, placing time limits on 26 time spent in the prison’s law library, and limiting access to computers within the prison’s law library violates his access to the courts because evidence in the record demonstrates that Plaintiff did not suffer 27 an “actual injury” as a result of these policies. (See Mot. at 11–13.) The Court, however, previously dismissed Claim 1 with prejudice on grounds of claim preclusion. (See ECF No. 61 at 8.) Consequently, 28 1 speech violation itself to state a constitutional claim.” Hayes, 849 F.3d at 1212 (quoting 2 Al-Amin v. Smith, 511 F.3d 1317, 1333 (11th Cir. 2008)). 3 Plaintiff alleges two different instances that his legal mail was opened outside of his 4 presence.4 The first instance is mail that he received from the “California Innocence 5 Project” on May 27, 2016. (See FAC at 19.) The second instance was on June 27, 2016, 6 when Plaintiff was purportedly given an “enveloped clearly marked legal confidential” 7 from the Los Angeles County District Attorney’s Office that had been opened and read “by 8 the mailroom staff outside his presence.” (See id.) 9 Defendants do not dispute that Plaintiff’s mail was opened outside of his presence 10 or that this mail was deemed “legal mail”; rather, Defendants argue that “[b]ecause there 11 is no evidence that any of the mailroom staff intentionally caused Plaintiff’s incoming 12 confidential mail to be mishandled, [this claim] should be dismissed.” (See Mot. at 30.) 13 In support of their argument, Defendants proffer the Declaration of C. Bell, CEN 14 Procurement and Services Officer II, whose duties include “overseeing mailroom 15 operations.” (See ECF No. 167-3 (“Bell Decl.”) ¶ 1.) Bell declares that when “incoming 16 mail is delivered, it is dumped on a large table, and all staff sort the mail by hand.” (See 17 id. ¶ 4.) Legal mail is separated from regular mail, and the legal mail is “reviewed by the 18 office technician.” (See id.) If it is determined that the initial assessment that a piece of 19 mail is “legal mail” is incorrect, that mail is processed as “regular mail.” (See id.) If the 20 piece of mail meets the criteria as “legal mail,” the “senders address is logged into the legal 21 mail database which keeps track of an inmates incoming and outgoing legal mail.” (See 22 id.) A correctional officer will open the legal mail and “scan it for contraband” in the 23 presence of the inmate receiving the legal mail. (See id.) 24 / / / 25 26 27 4 Although Plaintiff also claims that mail that he received from the San Diego Superior Court had been opened, “[m]ail from the courts, as contrasted to mail from a prisoner’s lawyer, is not legal mail.” See 28 1 While the Bell Declaration describes the process that is supposed to happen when 2 processing inmate’s legal mail, however, it does not provide any evidence to support 3 Defendants’ assertion that Plaintiff’s legal mail was not intentionally opened. Instead, in 4 their moving papers, Defendants seem to rely on Plaintiff’s deposition testimony, claiming 5 Plaintiff testified that he “has no reason to believe [his legal mail] was intentionally opened 6 outside of his presence by Defendants.” (See Mot. at 17 (citing ECF No. 167-5 (“Defs.’ 7 Ex. 1”) at 10, 13, 17).) Defendants believe this supports their conclusion that “[i]solated 8 instances of interference with mail without any evidence of improper motive have been 9 found insufficient to state a constitutional claim.” (See id. at 31 (citing Stevenson v. 10 Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989)).) 11 Defendants further assert that the Ninth Circuit’s decision in Hayes that prisoners 12 have a protected First Amendment interest in having properly marked legal mail opened 13 only in their presence, see 849 F.3d at 1211, does not apply “when there is no evidence of 14 improper motive.” (See Mot. at 31–32.) But this is incorrect. The Ninth Circuit in Hayes 15 rejected that “improper motive” is an element that must be proven by Plaintiff when they 16 found that the plaintiff had made a plausible First Amendment claim by alleging that his 17 “protected mail was arbitrarily or capriciously opened outside his presence” and “[n]othing 18 further is required.” See 849 F.3d at 1211. Hayes further finds that the injury suffered 19 when an inmate’s legal mail opened outside his presence is “that his right to privately 20 confer with counsel has been chilled.” Id. (citing Nordstrom v. Ryan, 762 F.3d 903, 911 21 (9th Cir. 2014).) 22 Defendants acknowledge that, “had Defendants intentionally opened even a single 23 piece of confidential legal mail, it would be a First Amendment violation.” (See Mot. at 24 32.) Defendants then argue, without citing to any supporting evidence in the record, that 25 “mail was dumped on a table, and a human error by an unknown person caused Plaintiff’s 26 mail to be placed in the regular mail pile,” which was then purportedly “opened by a 27 machine, briefly scanned by an office assistant for contraband, placed in a truck, and 28 delivered to Plaintiff during regular mail call.” (See id. at 32–33.) There is no testimony 1 by any of the named Defendants or prison officials supporting this claim as to how 2 Plaintiff’s legal mail was opened outside of his presence. 3 If prison officials open legal mail outside the presence of an inmate, it is their burden 4 to establish that there were legitimate penological interests that justify the policy or 5 practice. See Hayes, 849 F.23d at 1213. Defendants do not point to any testimony or 6 evidence in the record to show that there was a legitimate penological interest in opening 7 Plaintiff’s legal mail outside his presence. Consequently, the Court DENIES Defendants’ 8 Motion as to Plaintiff’s First Amendment claims regarding the opening of his legal mail 9 outside his presence. 10 II. First Amendment Claims – Access to Courts 11 Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 12 U.S. 343, 346 (1996). To state a claim of a denial of the right to access the courts, a prisoner 13 must establish that he has suffered “actual injury,” a jurisdictional requirement derived 14 from the standing doctrine. See id. at 349. An “actual injury” is “actual prejudice with 15 respect to contemplated or existing litigation, such as the inability to meet a filing deadline 16 or to present a claim.” See id. at 348 (citation and internal quotations omitted). The right 17 of access does not require the State to “enable the prisoner to discover grievances,” or even 18 to “litigate effectively once in court.” See id. at 354; see also Jones v. Blanas, 393 F.3d 19 918, 936 (9th Cir. 2004) (defining actual injury as the “inability to file a complaint or 20 defend against a charge”). Instead, Lewis holds: 21 [T]he injury requirement is not satisfied by just any type of frustrated legal claim . . . . Bounds does not guarantee inmates the wherewithal to transform 22 themselves into litigating engines capable of filing everything from 23 shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, 24 directly or collaterally, and in order to challenge the conditions of their 25 confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and 26 incarceration. 27 / / / 28 / / / 1 Id. at 346; see also Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293, at *2– 2 3 (E.D. Cal. Mar. 6, 2017). Indeed, the failure to allege an actual injury is “fatal.” See 3 Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to show that a ‘non- 4 frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518 U.S. at 353 & n.4). 5 Here, Plaintiff alleges that he was denied the right to send outgoing legal mail, 6 thwarted from exhausting his administrative grievances, and denied the ability to obtain 7 legal counsel and access to “exculpatory” evidence, which resulted in an inability to file 8 relevant petitions for writ of habeas corpus, along with Pitchess and Brady motions. 9 A. Outgoing Legal Mail 10 In Count 3 of Plaintiff’s First Amended Complaint, he alleges that on six occasions 11 between October of 2016 and April of 2017,5 he was denied the right to send outgoing 12 legal mail. (See FAC at 23–25.) For each of these mailings, Plaintiff submitted a “Trust 13 Account Withdrawal Order” to have money withdrawn from his trust account to pay for 14 postage to have these mailings sent out. (See id.) On each of the occasions set forth in 15 Plaintiff’s First Amended Complaint, these requests were returned to Plaintiff by either 16 Defendant Crouch or Walker, informing Plaintiff that, because he was deemed indigent, he 17 had to seek envelopes with postage as set forth in Section 3138 of Title 15 of the California 18 Code of Regulations (“Section 3138”). (See id.) Section 3138 states, in relevant part, that, 19 “[u]pon request of an indigent inmate, as defined in Section 3000, writing paper, envelopes, 20 a writing implement, and the postage required for five 1-ounce First-Class letters per week 21 shall be supplied.” 15 Cal. Code Regs. § 3138(a). 22 Plaintiff argues in his First Amended Complaint that he was not indigent because he 23 had a job while housed at CEN, (see FAC at 23), and, in his Opposition, argues that he 24 25 26 5 In Plaintiff’s Opposition to Defendants’ Motion he refers to several other occasions that he was also denied the right to send out legal mail. See ECF No. 213 at 30-32. However, all of these allegations are 27 alleged to have occurred after the filing of his FAC and are not included in his FAC. Thus, these arguments in support of his Opposition relating to the events that occurred after June 8, 2017, the date of 28 1 even if he had no money in his trust account at the time he wanted to mail legal documents, 2 his trust account could have been “charged” and the amount paid back when he deposited 3 money from his paycheck. (See Opp’n at 24.) Specifically, Plaintiff argues that when he 4 would submit the trust account withdrawal form, “if money was on Plaintiff’s account the 5 balance would be immediately taken off[;] however, if there wasn’t enough money to pay 6 for legal postage an obligation/encumbrance would be placed on his account.” (See id.) 7 Further, once “money was placed on Plaintiff’s account[,] the amount owed for legal 8 postage would immediately be taken off” in a process known as the “Trust Restitution 9 Accounting Canteen System” or “TRACS.” (See id.) 10 Defendant Bell, however, attests that “inmates are expected to pay for postage” with 11 regard to outgoing mail. (See Bell Decl. ¶ 6.) The two ways in which inmates can do so 12 are providing postages themselves or “completing a Trust Account Request form.” (See 13 id.) If inmates submit the Trust Account Request form, “mailroom staff call the Trust 14 Accounting Office” to “verify that sufficient funds are available in the inmate’s account.” 15 (See id.) If an inmate has no funds in their account, “mail is returned to the inmate using 16 Form 019.” (See id.) If an inmate is determined to be indigent, they are given five “pre- 17 stamped” envelopes by the Trust Accounting Office in compliance with Section 3138. (See 18 id.) It is the Trust Accounting Office, however, and not the mailroom staff, who “determine 19 if an inmate is indigent.” (See id.) Inmates are provided “free unlimited mail to courts, 20 and the Attorney General’s Office[,]” but there is not free unlimited mail provided to 21 inmates for mail to attorneys or the Chief of Inmates Appeals.” (See id.) Finally, Bell 22 attests that “inmates are not permitted to send mail on credit.” (See id.) 23 With regard to the correspondence to the Chief of Inmate Appeals, Plaintiff argues 24 his “actual injury” is that he “has been deprived and hindered from exhausting his state 25 administrative remedies to add to this 42 U.S.C. § 1983 lawsuit.” (See FAC at 27.) There 26 is a requirement that an inmate must exhaust all administrative remedies that are available 27 prior to bringing a § 1983 claim, and, generally, an inmate must pursue his grievances 28 / / / 1 through all levels of the CDCR’s administrative grievance process. See Brown v. Valoff, 2 422 F.3d 926, 934–35 (9th Cir. 2005). 3 In addition to alleging an “actual injury,” a plaintiff must also plead facts sufficient 4 to describe the “non-frivolous” or “arguable” nature of underlying claim he contends was 5 lost as result of the defendants’ actions. Christopher v. Harbury, 536 U.S. 403, 413–14 6 (2002). This requires that the nature and description of the underlying claim must be set 7 forth in the pleading “as if it were being independently pursued.” Id. at 417. Here, Plaintiff 8 refers to three separate grievances and appeals that he was unable to mail to the Chief of 9 Inmate Appeals that therefore caused the “actual injury” forming one of the bases of his 10 access-to-courts claim: CDCR Inmate/Parolee Appeal Form 602 Log Nos. CEN-A-16- 11 00742, CEN-A-16-01573, and CEN-A-16-01732. (See FAC at 23–24.) 12 Plaintiff appended grievance Log No. CEN-A-16-00742 as an Exhibit to his First 13 Amended Complaint. (See id. at 128–31.) In this grievance, Plaintiff claims that his legal 14 mail was tampered with on May 27, 2016, (see id.), which is the subject of “Count 2” in 15 Plaintiff’s First Amended Complaint. (See id. at 19–22.) Not only did Plaintiff exhaust 16 this grievance to the Third Level Appeal, (see id. at 136), but Defendants did not move for 17 or obtain dismissal on the ground that Plaintiff failed to exhaust this claim. Consequently, 18 Plaintiff suffered no “actual injury” as to grievance Log No. CEN-A-16-00742. 19 As to the other two grievances, Plaintiff fails to attach them to his First Amended 20 Complaint or to describe the “non-frivolous” or “arguable” nature of underlying the claims 21 in these grievances that he was purportedly prevented from sending to the Third Level of 22 Appeal. See Christopher, 536 U.S. at 413–14. In any event, Defendants did not move to 23 dismiss any claims in this action on the grounds that Plaintiff failed to exhaust his 24 administrative remedies, and Plaintiff does not set forth any evidence he attempted to bring 25 claims that were rejected for failing to exhaust in any separate action. Consequently, 26 Plaintiff has pointed to no evidence in the record to overcome Defendants’ showing that 27 there is no genuine dispute of material fact that Plaintiff suffered an “actual injury” as to 28 the purported inability to mail his appeal of these grievances to the Third Level of Appeal. 1 B. Petition for Writ of Habeas Corpus 2 In his First Amended Complaint, Plaintiff alleges that the denial of his ability to send 3 mail to the “Innocence Project, the California Appellate Program and many attorneys 4 seeking assistance with his petition for writ of habeas corpus” resulted in “actual injuries.” 5 (See FAC at 26.) Plaintiff claims he was thwarted from sending email to these entities 6 beginning on May 27, 2016. (See id. at 19.) In his Opposition, Plaintiff further contends 7 that he was “prevented by filing a petition for writ of habeas corpus in June of 2016[,]” as 8 a result of the Defendants’ actions with regard to his legal mail. (See Opp’n at 62.) 9 Defendants, however, have submitted a petition for writ of habeas corpus filed by Plaintiff 10 in the Central District of California on June 6, 2016.6 (See ECF No. 167-5 at 158–65 11 (“Defs.’ Ex. 2”).) The Court takes judicial notice of the fact that the District Court for the 12 Central District of California dismissed Plaintiff’s petition on July 20, 2016, on the ground 13 that Plaintiff “cannot demonstrate that the decisions of the pertinent California courts 14 declining to allow petitioner to represent himself in the California Penal Code section 15 1054.9 habeas related proceedings, were contrary to, or involved an unreasonable 16 application of clearly established federal law or were based on an unreasonable 17 determination of the facts in light of the evidence presented.” See Order Summarily 18 Dismissing Petition and Denying a Certificate of Appealability, Stevenson v. People of the 19 State of California, No. 2:16-cv-03945-CJC-JC (C.D. Cal. filed July 20, 2016), ECF No. 20 8. Consequently, there is no evidence in the record that Plaintiff’s habeas petition was 21 denied as a result of any of the named Defendants’ actions or that Plaintiff suffered an 22 “actual injury” in light of the fact that he did, in fact, file petitions for writ of habeas corpus. 23 / / / 24 25 26 6 Plaintiff signed this Petition on June 1, 2016, which is four days after he first claims he was thwarted from receiving or sending mail to various counsel for assistance in preparing this petition. (See Opp’n at 27 62.) A court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212, 28 1 C. Pitchess and Brady Motions 2 Plaintiff claims that, as a “direct result of not being allowed to sign an inmate trust 3 account and mail confidential legal work,” he was “denied the opportunity to mail the 4 Pitchess motions to the Chief of the [Los Angeles Police Department] and [San Diego 5 Police Department,]” which caused his “motion to be denied.” (See FAC at 26.) Further, 6 Plaintiff alleges that he was appointed counsel, Attorney James Bisnow, in late 2015, to 7 “assist” Plaintiff with “obtaining his discovery material.” (See id. at 29.) On July 14, 2016, 8 Attorney Bisnow “was given audiotapes that were never turned over to Stevenson’s trial 9 attorney.” (See id.) Attorney Bisnow informed Plaintiff that these tapes were 10 “exculpatory. (See id.) However, on August 8, 2016, Plaintiff received a letter from 11 Attorney Bisnow that Litigation Coordinator Telles had told Attorney Bisnow that Plaintiff 12 would not be permitted to have these recording in his possession. (See id.) Plaintiff claims 13 that, “without this important exculpatory information[,] he was unable to use the audio 14 recordings” that the prosecution in his criminal case “withheld in violation of Brady.” (See 15 id. at 30.) 16 Plaintiff, however, filed a civil rights complaint in the Central District of California, 17 Stevenson v. Richman, No. 2:17-cv-03667-CJC-JC (C.D. Cal. filed May 4, 2017) 18 (“Richman”), prior to the filing of his amended complaint in this action, in which Plaintiff 19 alleged that a Los Angeles Superior Court Judge, the Los Angeles District Attorney, and 20 Attorney Brisnow were responsible for the denial of access to the courts in violation of his 21 First Amendment rights based on the same issues raised in this case. In Richman, Plaintiff 22 claimed he had been notified by Attorney Brisnow on June 13, 2016, that his “discovery 23 motion and Pitchess motion [had been] filed.” Complaint, Richman, ECF No. 1 (“Richman 24 Compl.”) at 12. Plaintiff acknowledged that Attorney Brisnow also had included a copy 25 of this Pitchess motion, “one for the [Los Angeles Police Department] and the other for the 26 [San Diego Police Department].” See id. Plaintiff attached a conformed copy of this 27 motion as an exhibit to his complaint in Richman, showing a Pitchess motion had been 28 filed in Los Angeles Superior Court by Attorney Brisnow on behalf Plaintiff on June 6, 1 2016. See Notice of Motion for Post-Conviction Discovery Pursuant to Evidence Code 2 Section 1043 and Pitchess v. Superior Court and Hurd v. Superior Court, Richman, ECF 3 No. 1-2 at 131–38. In this matter, Defendants also submit the docket “California Court of 4 Appeals, Second District, Case No. B279269,” which demonstrates that Plaintiff filed a 5 “Writ of Habeas Corpus, a Pitchess motion, and a Brady motion” on December 2, 2016. 6 (See ECF No. 167-5 at 171–75 (“Defs.’ Ex. 4”).) Based on the judicially noticeable legal 7 actions previously filed by Plaintiff and the evidence submitted by Defendants, the Court 8 finds that Defendants have met their initial burden to show that Plaintiff has not suffered 9 an “actual injury” in violation of his right to access to the courts due to any action on the 10 part of Defendants. 11 The burden therefore shifts to Plaintiff to establish a genuine dispute of material fact. 12 See Matsushita, 475 U.S. at 586. Plaintiff’s claims that he was unable to file a Pitchess or 13 Brady motion due the purported actions of Defendants is not supported by any evidence in 14 the record and, in fact, is directly contradicted by evidence that he did file these motions in 15 June and December of 2016. Further, Plaintiff presents no evidence to raise a triable issue 16 of material fact that Defendants’ actions played any role in the purported denial of these 17 motions. 18 Finally, Plaintiff alleges that he was not permitted to possess audiotapes that had 19 been previously turned over to his counsel that he claims were exculpatory and were 20 intended to be used to “substantiate his claim that a prosecution witness’s testimony was 21 based on involuntary statements.” (See FAC at 29.) Plaintiff’s arguments, as well as his 22 factual allegations, are disjointed and difficult to follow; nonetheless, Plaintiff’s claim that 23 he was never able to listen to these audiotapes at CEN, however, are contradicted by the 24 record. For example, in the Richman Complaint—which was filed more than a month 25 before the First Amended Complaint in this action—Plaintiff alleges that on Attorney 26 Bisnow sent an investigator to visit Plaintiff at CEN on November 8, 2016, to “listen to the 27 / / / 28 / / / 1 audiotaped interviews of witnesses and/or suspects and telephone calls.” See id. at 15. 2 Plaintiff also alleges in the Richman Complaint that he was informed by another attorney 3 retained by his family that Judge Richman “ordered [this attorney] not to give Plaintiff a 4 copy of the audio recordings or make a transcript of those recordings.” Id. at 17; see also 5 id. at 20 (“Judge Richman has ruled that Plaintiff may NOT for any reason have a copy of 6 the audiotaped interviews.”) (emphasis in original). Further, in the Richman Complaint, 7 Plaintiff seeks to hold Judge Richman liable for “refus[ing] to allow Plaintiff to submit his 8 Pitchess motion with supporting documents,” which purportedly “violat[ed] Plaintiff’s 9 rights under the First Amendment to the US Constitution to Access the Court.” See id. at 10 28. The Honorable Cormac J. Carney dismissed these claims without leave to amend on 11 May 24, 2017, see Order, Richman, ECF No. 6 at 1, and the Ninth Circuit found Plaintiff’s 12 appeal of Judge Carney’s dismissal to be frivolous. See, e.g., Order, Richman, ECF No. 13 17. 14 The same is true of the new factual allegations and evidence contained in both 15 Plaintiff’s Opposition—which is over 500 pages, (see generally ECF No. 213)—and his 16 Surreply. As the Court noted in its October 6, 2017 Order, some of Plaintiff’s access-to- 17 courts claims could not be dismissed at the screening stage because, while he submitted 18 “voluminous exhibits includ[ing] copies of the habeas petitions he admits he previously 19 filed in the California courts,” he did not include “copies of any final decisions entered by 20 any of those courts on the merits.” (See ECF No. 13 at 5 n.2 (citing Furnace v. Giurbino, 21 838 F.3d 1019, 1023 (9th Cir. 2016)).) Consequently, in his Opposition, Plaintiff has 22 submitted partial transcripts of proceedings before Judge Richman in the Los Angeles 23 Superior Court. Some of these transcripts, however, negate Plaintiff’s underlying claim 24 that the denial of access to the audio tapes violated his right to access to the courts. For 25 26 27 7 Plaintiff does not allege any facts related to this visit by the investigator or acknowledge that he was able to listen to tapes prior to filing his motions in the California Court of Appeal in December of 2016. (See 28 1 example, Plaintiff submits a partial transcript of a proceeding that occurred before Judge 2 Richman on February 6, 2018. (See Opp’n at 251–53.) In this proceeding, Plaintiff was 3 represented by Chris Campbell, (see id. at 251), who explained to Judge Richman that he 4 had heard the audiotapes and, based on the tapes, was going to file a “renewed Pitchess” 5 on Plaintiff’s behalf. (See id. at 253.) Plaintiff also submits a transcript of another hearing 6 before Judge Richman on August 14, 2018, at which Plaintiff was again represented by 7 Attorney Campbell. (See id. at 270–73.) At this hearing, Attorney Campbell represented 8 that he had had the audiotapes transcribed and had lodged them with the court. (See id. at 9 271.) Again, Attorney Campbell argued that these audio recordings “warrant[ed] a 10 renewed Pitchess Motion.” (See id. at 272.) While it is not clear whether Attorney 11 Campbell was granted leave to file a renewed Pitchess Motion on Plaintiff’s behalf, it is 12 clear from Plaintiff’s own exhibits that Plaintiff’s alleged deprivation of these tapes did not 13 cause him to suffer an “actual injury” rising to the level of a denial of access to the courts 14 because he had counsel who had possession of these tapes and was representing his 15 interests in court proceedings. 16 D. Conclusion 17 Because there is no evidence in the record demonstrating there is a genuine triable 18 issue of material fact as to whether Defendants violated Plaintiff’s First Amendment right 19 to access to the courts, the Court GRANTS Defendants’ Motion as to this claim. 20 III. First Amendment Retaliation Claims 21 A retaliation claim has five elements. See Brodheim v. Cry, 584 F.3d 1262, 1269 22 (9th Cir. 2009). First, a plaintiff must demonstrate that the retaliated-against conduct is 23 protected. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).8 Second, the plaintiff 24 / / / 25 / / / 26 27 8 Here, the filing of an inmate grievance is protected conduct. See Rhodes v. Robinson, 408 F.3d 559, 568 28 1 must show the defendants took adverse action against him. See Rhodes v. Robinson, 408 2 F.3d 559, 567 (9th Cir. 2005). Third, the plaintiff must prove a causal connection between 3 the adverse action and the protected conduct.10 See Watison, 668 F.3d at 1114. Fourth, 4 the plaintiff must demonstrate the “official’s acts would chill or silence a person of ordinary 5 firmness from future First Amendment activities.” See Rhodes, 408 F.3d at 568 (internal 6 quotation marks and emphasis omitted).11 Fifth and finally, the plaintiff must prove “that 7 the prison authorities’ retaliatory action did not advance legitimate goals of the correctional 8 institution.” See Rizzo, 778 F.2d at 532; Watison, 668 F.3d at 1114–15. 9 Plaintiff alleges in his First Amended Complaint that Defendants Bell, Walker, and 10 Couch “retaliated against [Plaintiff] for filing a complaint regarding his legal confidential 11 mail being opened out of his presence” by taking his “legal confidential ‘work product’ 12 (affidavits, declarations and documents).” (See FAC at 28.) Defendants argue that there 13 is no evidence in the record to support any of the elements of a retaliation claim. (See Mot. 14 at 36–37.) 15 Specifically, Defendant Bell argues that, with regard to the allegations of the 16 “mishandling” of Plaintiff’s confidential legal mail, “there are no acts or omissions 17 attributed to Bell.” (See Mot. at 36.) The Court agrees. The only allegations as to 18 Defendant Bell are the claims that Plaintiff submitted information to the “mailroom staff’s 19 supervisor Ms. Carol Bell” during “many interviews” that showed he “cannot be 20 considered an indigent inmate” because he “received a monthly payment for being a VEP 21 22 23 9 The adverse action need not be an independent constitutional violation, see Pratt, 65 F.3d at 806; rather, “the mere threat of harm can be an adverse action.” See Brodheim, 584 F.3d at 1270. 24 25 10 Because direct evidence of retaliatory intent is rare, a chronology of events from which retaliation can be inferred may suffice. See Watison, 668 F.3d at 1114 (“[T]iming can properly be considered as 26 circumstantial evidence of retaliatory intent.” (citing Pratt, 65 F.3d at 808)). 27 11 “[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm,” see Brodheim, 584 F.3d at 1269, that is “more than minimal.” See Robinson, 408 F.3d at 28 1 tutor.” (See Opp’n at 26.) There are no allegations or evidence in the record, however, 2 that Bell took any retaliatory action against Plaintiff. 3 As for Defendants Walker and Couch, Plaintiff argues in his Opposition that “he was 4 timely retaliated against by Defendants Couch, Walker and an unknown mailroom staff 5 member for filing a complaint against the mailroom where he was deprived the right to 6 sign an inmate trust account withdrawal form.” (See Opp’n at 21.) In response, Defendants 7 argue that Plaintiff must demonstrate that “Couch and Walker knew of the previously filed 8 grievances” and there is no evidence in the record to demonstrate this knowledge. (See 9 Mot. at 36.) The Court agrees that Plaintiff identifies to no evidence in the record to support 10 his claim that Defendants were aware that he was engaged in filing grievances against 11 them. 12 It is Plaintiff who must show the causal connection between the adverse action and 13 the protected conduct, see Watison, 668 F.3d at 1114, meaning Plaintiff must offer “either 14 direct evidence of retaliatory motive” or circumstantial evidence of Defendants’ purported 15 retaliatory motive. See McCullum v. Cal. Dep’t of Corr. and Rehab., 647 F.3d 870, 882 16 (9th Cir. 2011) (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 2002)). In this 17 matter, Plaintiff offers neither direct or circumstantial evidence of Defendants Bell, Couch, 18 or Walker’s alleged retaliatory motive. Consequently, the Court GRANTS Defendants’ 19 Motion as to Plaintiff’s retaliation claims. 20 IV. Fifth and Fourteenth Amendment Claims 21 In his First Amended Complaint, Plaintiff argues that Defendant Telles violated his 22 “Fifth Amendment right to his property by denying him possession of an audio recording 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 that pertains to his criminal matter.” (See FAC at 30.) The Supreme Court, however, has 2 held that “an unauthorized intentional deprivation of property by a state employee does not 3 constitute a violation of the procedural requirements of the Due Process Clause of the 4 Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” 5 See Hudson v. Palmer, 468 U.S. 517, 533 (1984). Consequently, where the state provides 6 a meaningful post-deprivation remedy, only authorized, intentional deprivations constitute 7 actionable violations of the Due Process Clause. The California Legislature has provided 8 a remedy for tort claims against public officials pursuant to California Government Code 9 §§ 900 et seq. An authorized deprivation is one carried out pursuant to established state 10 procedures, regulations, or statutes. See Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 11 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). 12 Here, because California provides a post-deprivation remedy for such losses, 13 Plaintiff may not bring a due process claim under the Fourteenth Amendment for the 14 alleged deprivation of his personal property. See Barnett v. Centoni, 31 F.3d 813, 816–17 15 (9th Cir. 1994). Accordingly, the Court GRANTS Defendants’ Motion as to Plaintiff’s 16 Fifth and Fourteenth Amendment Due Process claims. 17 V. Fourteenth Amendment Equal Protection Claim 18 On August 8, 2016, Plaintiff claims he received a letter from his attorney indicating 19 that CEN Litigation Coordinator Telles had informed him that Plaintiff was not permitted 20 to possess the audio recordings that his attorney had obtained. (See FAC at 29.) Plaintiff 21 argues that this violated his right to equal protection under the law because other inmates 22 were permitted to possess audio recordings in their cells. (See id.) 23 24 25 12 “The Fifth Amendment prohibits the federal government from depriving persons of due process, while 26 the Fourteenth Amendment explicitly prohibits deprivations without due process by the several States.” Castillo v. McFadden, 370 F.3d 882, 889 n.5 (9th Cir. 2004). Here, because Plaintiff is not challenging 27 the actions of the federal government, the Fifth Amendment does not apply and the Court will construe Plaintiff’s claim as one under the Fourteenth Amendment. See Lee v. City of Los Angeles, 250 F.3d 668, 28 1 The Equal Protection Clause of the Fourteenth Amendment “is essentially a 2 direction that all persons similarly situated should be treated alike.” See City of Cleburne, 3 Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see also Vacco v. Quill, 521 U.S. 4 793, 799, (1997) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)); Fraley v. Bureau of 5 Prisons, 1 F.3d 924, 926 (9th Cir. 1993) (per curiam). To establish an equal protection 6 violation, a plaintiff must demonstrate “that the [challenged action], either on its face or in 7 the manner of its enforcement, results in members of a certain group being treated 8 differently from other persons based on membership in that group.” See McLean v. 9 Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999). “Second, if it is demonstrated that a 10 cognizable class is treated differently, the court must analyze under the appropriate level 11 of scrutiny whether the distinction made between the two groups is justified.” Id. (citation 12 and quotations omitted). If the aggrieved party is a member of a protected or suspect class, 13 or otherwise suffers the unequal burdening of a fundamental right, the court applies strict 14 scrutiny. See City of Cleburne, 473 U.S. at 439–40. On the other hand, “[g]overnment 15 actions that do not . . . involve suspect classifications will be upheld if [they] are rationally 16 related to a legitimate state interest.” See Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 17 1208 (9th Cir. 2005). “Intentional discrimination means that a defendant acted at least in 18 part because of a plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 19 (9th Cir. 2003) (emphasis in original) (quoting Maynard v. City of San Jose, 37 F.3d 1396, 20 1404 (9th Cir. 1994)). 21 Here, there is no evidence in the record that Plaintiff is a member of a “protected 22 class” and, consequently, the Court looks to whether there is a rational basis for the claims 23 made by Plaintiff. In his First Amended Complaint, Plaintiff introduces an exhibit that he 24 claims shows the CDCR “made arrangements” for another inmate to “have access to his 25 audio recordings.” (See FAC at 29–30.) Defendant Telles, however, attests that, in 2016, 26 Plaintiff’s counsel asked her whether she would “take possession of audio recordings 27 related to Plaintiff’s underlying conviction and play them for Plaintiff.” (See ECF No. 167- 28 6 (“Telles Decl.”) ¶ 2.) Telles informed him that was not appropriate and, when his counsel 1 asked whether Plaintiff “would be permitted to possess the audio recordings,” she informed 2 him that pursuant to CEN policy, “inmates were not permitted to possess CDs unless they 3 were factory sealed.” (See id.) This policy “pertaining to possession of digital evidence 4 related to criminal matters” was changed in 2019. (See id.) 5 Plaintiff may establish an equal protection claim only if he introduces facts sufficient 6 plausibly to show that Defendants intentionally treated similarly situated inmates 7 differently without a rational basis for doing so. See Engquist v. Ore. Dep’t of Agriculture, 8 553 U.S. 591, 601–02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); 9 San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch Ltd. v. Behrens, 546 10 F.3d 580, 592 (9th Cir. 2008); N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th 11 Cir. 2008). To demonstrate an equal protection claim under this “class of one” theory, 12 however, Plaintiff must allege facts plausibly showing that: (1) he is a member of an 13 identifiable class, (2) he was intentionally treated differently from others similarly situated, 14 and (3) there is no rational basis for the difference in treatment. See Nurre v. Whitehead, 15 580 F.3d 1087, 1098 (9th Cir. 2009) (citing Village of Willowbrook, 528 U.S. at 564). 16 Defendants argue that there is no evidence in the record to show that Plaintiff was 17 treated differently from any other inmate because “Madden and Telles were following the 18 policy in place, knew Plaintiff’s attorney had the audio recordings, and provided him with 19 alternatives for playing the audio recordings for Plaintiff.” (See Mot. at 28–29.) Plaintiff 20 attempts to raise a disputed fact to show that he was “intentionally treated” differently from 21 other inmates in his situation by pointing to a purported settlement agreement between a 22 different inmate and the CDCR, in which the CDCR allegedly agreed to the following 23 language: “If in the future the Plaintiff receives audio recordings related to his criminal 24 case, those recordings will be held with his legal property in Receiving and Release.” (See 25 FAC at 184–87.) This settlement agreement, however, is neither dated nor signed. (See 26 id.) Consequently, it has no evidentiary value to dispute Defendants’ testimony that they 27 applied a policy to Plaintiff that they applied to every other inmate at that time. 28 / / / 1 Plaintiff also submits a declaration from Lynn Milner, who declares that, on July 10, 2 2017, he spoke with Law Librarian Eanes, who told him that if he “had materials on a CD 3 from the court or district attorney he would retrieve a computer, bring it to the Law Library 4 and allow [him] to listen to and/or view [his] materials.” (See Opp’n at 359.) Plaintiff, 5 however, fails to show how Inmate Milner is “similarly situated” to him. In fact, unlike 6 Plaintiff, inmate Milner was not represented by counsel. Further, as discussed above, 7 Plaintiff admitted in a separate civil action that his counsel had sent a private investigator 8 to CEN, who had played the audiotapes for Plaintiff. In any event, the fact that a different 9 CDCR employee may have applied a policy differently to a different inmate a year later 10 than the CDCR employees who interacted with Plaintiff does not demonstrate that there 11 was any discriminatory intent behind the decisions implemented by Defendants Madden 12 or Telles. Plaintiff must overcome Defendants’ showing that there is no evidence in the 13 record that the Defendants in this action treated him differently from other inmates at CEN. 14 Because Plaintiff has failed to do so, the Court GRANTS Defendants’ Motion as to 15 Plaintiff’s Fourteenth Amendment equal protection claim.13 16 VI. Sixth Amendment Right-to-Counsel Claim 17 Finally, in his First Amended Complaint, Plaintiff argues that Defendants violated 18 his Sixth Amendment rights when they purportedly opened his legal mail to the California 19 Innocence Project, Los Angeles County District Attorney Jackie Lacey, and mail from the 20 San Diego Superior Court. (See FAC at 21.) As already set forth above, however, the only 21 mail that could potentially be considered “legal mail” is the mail to and from attorneys with 22 the California Innocence Project. 23 24 25 13 Defendants also move for summary judgment as to Plaintiff’s claims arising from possession of the 26 audio tapes on the ground that they are entitled to qualified immunity. (See Mot. at 29–30.) Because the Court has found that Defendants are entitled to summary judgment as to these claims, it need not reach 27 any issues regarding qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no constitutional right would have been violated were the allegations established, there is no necessity for 28 1 Inmates do have Sixth Amendment rights with respect to attorney-client 2 correspondence marked as legal mail. See Wolff v. McDonnell, 418 U.S. 539, 576–77 3 (1974); Mangiaracina v. Penzone, 849 F.3d 1191, 1196 (9th Cir. 2017) (finding that the 4 “practice of opening legal mail in the prisoner’s presence is specifically designed to 5 protect” the “Sixth Amendment right to confer privately with counsel”). Defendants argue, 6 however, that the mail purportedly opened outside of Plaintiff’s presence was not from his 7 legal counsel. Instead, they argue that Plaintiff was represented by Attorneys Brisnow, 8 Campbell, and Hunter at the time he claims his legal mail was opened from the California 9 Innocence Project and, consequently, there was no impact on his ability to “confer privately 10 with counsel.” See Mangiaracina, 849 F.3d at 1196. Indeed, Plaintiff admitted in his 11 deposition that he had continuous legal representation between 2016 and 2019, (see ECF 12 No. 167-5 at 4–158 (“Defs.’ Ex. 1”) at 32), and that his attorneys were Brisnow, Campbell, 13 and Hunter. (See id.) Plaintiff also conceded that he was not represented by the California 14 Innocence Project at the time he claims his legal mail was opened outside of his presence. 15 (See id. at 80.) 16 Because Plaintiff offers no admissible evidence to dispute Defendants’ showing that 17 they did not impede Plaintiff’s Sixth Amendment rights to confer with his counsel with 18 regard to the alleged opening of his mail from the California Innocence Project, the Court 19 GRANTS Defendants’ Motion as to Plaintiff’s Sixth Amendment claims. 20 CONCLUSION 21 For the reasons set forth above, the Court DIRECTS the Clerk of Court to 22 terminated Defendants Swain, Brown, John and Jane Does, and Rohrer from the Court’s 23 Docket and GRANTS IN PART AND DENIES IN PART Defendants’ Motion for 24 Summary Judgment (ECF No. 167). Specifically, the Court DENIES Defendants’ Motion 25 as to Plaintiff’s First Amendment claims based on the opening of his legal mail outside his 26 / / / 27 / / / 28 / / / | presence but GRANTS Defendants’ Motion as to all remaining claims in Plaintiffs First 2 || Amended Complaint. 3 IT IS SO ORDERED. 4 || Dated: February 8, 2022 —_—_— 5 | 9) (2 re 6 Honorable Todd W. Robinson United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28