(PC)Hudson v. Brian et al, No. 1:2008cv00249 - Document 42 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that Defendants' 33 Motion for Summary Judgment be Denied and Defendants' 37 Objections to Plaintiff's Declaration be Granted in Part and Denied in Part signed by Magistrate Judge Jennifer L. Thurston on 3/31/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 4/18/2011. (Sant Agata, S)
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(PC)Hudson v. Brian et al Doc. 42 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HUDSON, 12 Plaintiff, 13 14 Case No. 1:08-cv-00249 AWI JLT (PC) FINDINGS AND RECOMMENDATIONS DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT vs. TERRY BRIAN, et al., 15 (Doc. 33) Defendants. 16 / 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. This action is proceeding on Plaintiff’s First Amendment retaliation claims against Defendants 19 Brian and Volker. Now pending before the Court is Defendants’ motion for summary judgment filed 20 December 1, 2010. Plaintiff has filed an opposition to the motion, and Defendants have filed a reply. 21 For the reasons set forth below, the Court recommends that Defendants’ motion for summary judgment 22 be DENIED. 23 I. BACKGROUND 24 A. 25 Plaintiff alleges the following events took place at Kern Valley State Prison (“KVSP”). On July 26 2, 2007, prior to breakfast, Defendant Brian approached Plaintiff’s cell and called Plaintiff a liar for 27 filing a grievance wherein Plaintiff accused Defendant Brian of serving cold breakfasts. (Doc. 1 at 3.) 28 Defendant Brian verbally harassed Plaintiff regarding the matter over the next ten to fifteen minutes. Factual Background 1 Dockets.Justia.com 1 (Id. at 3-4.) At one point, Defendant Brian even threatened to file a CDC-115 (rules violation report) 2 against Plaintiff and have Plaintiff sent to “the hole” (segregated housing). (Id. at 4.) 3 Defendant Brian then left, only to return shortly thereafter with a warm breakfast for Plaintiff. 4 (Id.) Plaintiff accepted the meal tray. (Id.) Ten minutes later, Defendant Brian returned to Plaintiff’s 5 cell in order to retrieve the tray. (Id.) Plaintiff placed the tray in the cell door slot and walked away. 6 (Id. at 5.) When Plaintiff heard the tray fall to the floor, he picked-up the tray and returned it to the cell 7 door slot. (Id.) At that point, Defendant Brian said, “I gotcha. You assaulted me!” (Id.) Defendant 8 Brian looked over to the control booth and asked, “Did you see that?” (Id.) A few seconds later, when 9 Defendant Volker returned to his post in the control booth, Defendant Brian repeated his question, to 10 which Defendant Volker replied, “Yes, I did.” (Id.) 11 As a result of the incident, Defendants Brian and Volker submitted disciplinary reports against 12 Plaintiff for committing battery on a peace officer. (Id.) On August 9, 2007, a disciplinary hearing was 13 held on the matter, and Plaintiff was found not guilty of the offense. (Id. at 7, Ex. D.) Nevertheless, 14 Plaintiff claims that he suffered several repercussions due to the issuance of the rules violation report, 15 including confinement in administrative segregation and a loss of personal property during his transfer 16 to administrative segregation. (Id. at 8-9.) 17 B. 18 Plaintiff filed his complaint and initiated this action on February 20, 2008. (Doc. 1.) By order 19 filed July 17, 2009, the Court screened the complaint pursuant to 28 U.S.C. § 1915A and found that it 20 stated cognizable retaliation claims under the First Amendment but failed to establish any due process 21 claims regarding the deprivation of personal property. (Doc. 10.) Plaintiff was instructed to file either 22 an amended complaint correcting the deficiencies identified by the Court regarding his due process 23 claims or notify the Court in writing of his willingness to proceed on his cognizable retaliation claims. 24 (Id. at 8-9.) On July 31, 2009, Plaintiff notified the Court that he wished to proceed only on his 25 retaliation claims. (Doc. 11.) Procedural History 26 On January 21, 2010, Defendants Brian and Volker filed their answer to the complaint. (Doc. 27 18.) Discovery ensued thereafter. (Doc. 19.) Defendant Volker then filed a timely motion to dismiss 28 on March 22, 2010, arguing therein that Plaintiff failed to exhaust his administrative remedies. (Doc. 2 1 23.) On September 27, 2010, the Court issued findings and recommendations recommending that the 2 motion to dismiss be denied. (Doc. 32.) The Court found that although Plaintiff did not specifically 3 identify Defendant Volker in his grievance, Plaintiff sufficiently described the incident giving rise to this 4 action in the grievance and properly exhausted the grievance pursuant to the prison’s regulations and the 5 Prison Litigation Reform Act. (Id. at 2-4.) On December 3, 2010, the assigned district judge adopted 6 the findings and recommendations in full. (Doc. 34.) 7 On December 1, 2010, Defendants filed the instant motion for summary judgment. (Doc. 33.) 8 Plaintiff filed a timely opposition to the motion on January 19, 2011. (Docs. 36-38.) Two days later, 9 on January 21, 2011, Defendants filed a reply. (Doc. 39.) 10 II. SUMMARY JUDGMENT STANDARDS 11 Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials 12 on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant 13 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A material fact is one which may 14 affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute 15 regarding a material fact is genuine if the evidence is such that a reasonable trier of fact could return a 16 verdict in favor of the nonmoving party. Id. 17 A party seeking summary judgment “always bears the initial responsibility of informing the 18 district court of the basis for its motion, and identifying those portions of the pleadings, depositions, 19 answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes 20 demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 21 323 (1986) (internal quotation marks omitted). Where the movant will have the burden of proof on an 22 issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for 23 the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). “On an issue 24 as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely 25 by pointing out that there is an absence of evidence to support the nonmoving party’s case.” Id. (citing 26 Celotex, 477 U.S. at 323). 27 If the movant has sustained its burden, the nonmoving party must “show a genuine issue of 28 material fact by presenting affirmative evidence from which a jury could find in [its] favor.” FTC v. 3 1 Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (citing Anderson, 477 U.S. at 257 (1986)) (emphasis in 2 the original). Although the nonmoving party need not establish a material issue of fact conclusively in 3 its favor, it may not simply rely on “bald assertions or a mere scintilla of evidence in [its] favor” to 4 withstand summary judgment. Stefanchik, 559 F.3d at 929. Indeed, “[w]here the record taken as a 5 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue 6 for trial.’” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation 7 omitted). 8 In resolving a summary judgment motion, “the court does not make credibility determinations 9 or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Rather, “the evidence of the [nonmoving 10 party] is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Anderson, 477 U.S. 11 at 255. See T.W. Electric Service, Inc. v. Pacific Electric Contractors Ass’n, 809 F.2d 626, 630-31 (9th 12 Cir. 1987). Inferences, however, are not drawn out of the air; it is the nonmoving party’s obligation to 13 produce a factual predicate from which the inference may justifiably be drawn. Richards v. Nielsen 14 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985). 15 III. DISCUSSION 16 Under the First Amendment, prison officials may not retaliate against prisoners for initiating 17 litigation or filing administrative grievances. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). 18 A viable claim of First Amendment retaliation entails five basic elements: (1) an assertion that a state 19 actor took some adverse action against an inmate (2) because of (3) the inmate’s protected conduct and 20 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did 21 not reasonably advance a legitimate penological purpose. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th 22 Cir. 2009) (quoting Rhodes, 408 F.3d at 567-68). 23 Defendants contend that they are entitled to summary judgment because (1) there is no evidence 24 that Plaintiff engaged in conduct protected by the First Amendment; and (2) there is no evidence that 25 Defendants Brian and Volker initiated disciplinary action against Plaintiff in order to retaliate against 26 him. In other words, Defendants contend that there is no genuine issue of material fact precluding 27 summary judgment in their favor with respect to element two (causation) and element three (protected 28 conduct) of Plaintiff’s First Amendment retaliation claims. 4 1 In support of their argument, Defendants have produced the declaration of Dina Tarnoff, the 2 appeals coordinator and custodian of records for inmate appeals at KVSP. (Doc. 33-1 at 5.) Therein, 3 Dina Tarnoff declares that a review of Plaintiff’s inmate appeal file shows that Plaintiff never filed a 4 grievance prior to July 2, 2007 concerning Defendants serving Plaintiff cold breakfasts or meals. (Id. 5 at ¶ 3.) According to Dina Tarnoff, the only grievance filed by Plaintiff against Defendants Brian or 6 Volker was Appeal Log No. 07-02067, filed on September 9, 2007, wherein Plaintiff complained that 7 Defendants retaliated against him on July 2, 2007. (Id.) Defendants therefore contend that Plaintiff’s 8 inmate appeal file demonstrates that Plaintiff did not engage in protected conduct (filing grievances 9 against Defendants) prior to the alleged incident of retaliation. 10 With respect to causation, Defendants Brian and Volker declare that even if Plaintiff did file a 11 grievance against them regarding the service of cold meals prior to July 2, 2007, they had no knowledge 12 of the grievance. (Doc. 33-3 at ¶ 4; Doc. 33-7 at ¶ 4.) Nor has either defendant ever heard Plaintiff 13 complain that he was being served cold food. (Doc. 33-3 at ¶ 5; Doc. 33-7 at ¶ 5.) Thus, because they 14 were unaware of Plaintiff’s complaints, Defendants argue that they never threatened Plaintiff or ever 15 sought to retaliate against him for filing grievances. (Doc. 33-3 at ¶ 6-7; Doc. 33-7 at ¶ 6-7.) 16 According to Defendants, the reason why they filed a disciplinary action against Plaintiff was 17 because on July 2, 2007, Plaintiff threw his meal tray and struck Defendant Brian on his right hand. 18 (Doc. 33-7 at ¶ 2; see Doc. 33-3 at ¶ 2.) Defendants assert that prison officials are required to submit 19 Crime/Incident Reports whenever a staff member is assaulted by a prisoner, no matter how minor the 20 incident. (Doc. 33-7 at ¶ 3; Doc. 33-3 at ¶ 3.) Therefore, Defendants argue that their actions were not 21 driven by retaliatory intent. Rather, Defendants contend that their actions were fully consistent with 22 prison policy and regulations. 23 Defendants’ contentions and version of the facts, however, are disputed by the allegations set 24 forth in Plaintiff’s verified complaint and Plaintiff’s declaration filed in connection with his opposition 25 to the instant motion for summary judgment. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) 26 (because the plaintiff is proceeding pro se, the court must consider as evidence in his opposition to 27 summary judgment all of plaintiff’s contentions offered in motions and pleadings where (1) plaintiff’s 28 contentions are based on personal knowledge and set forth facts that would be admissible in evidence; 5 1 and (2) plaintiff attested under penalty of perjury that the contents of his motions and pleadings are true 2 and correct). First, Plaintiff asserts that filed a grievance against Defendants Brian and Volker regarding 3 the service of cold breakfasts. (Doc. 37 at ¶ 3.) Plaintiff declares that on June 30, 2007, he observed 4 a fellow inmate hand his grievance regarding cold food directly to Defendant Volker in the control 5 booth. (Id. at ¶ 4.) Plaintiff explains that he was unable to personally deliver his grievance to Defendant 6 Volker because black inmates, such as himself, were under lockdown at the time.1 (Id.) 7 Second, Plaintiff asserts that Defendants had knowledge of the grievance. Plaintiff avers that 8 not only did Defendant Volker physically accept the grievance, but minutes later, Defendant Volker 9 called Plaintiff a liar, thereby implying that Defendant Volker read the contents of the grievance. (Id. 10 at ¶ 6.) As to Defendant Brian, Plaintiff alleges that two days later, on July 2, 2007, Defendant Brian 11 approached Plaintiff’s cell and also called him a liar for filing the grievance regarding cold food. (Id. 12 at ¶ 7; Doc. 1 at 3.) Plaintiff alleges further that Defendant Brian verbally harassed him regarding the 13 grievance for almost fifteen minutes that day. (Doc. 1 at 3-4.) 14 Third, Plaintiff presents evidence sufficient in demonstrating causation. “To show the presence 15 of th[is] element on a motion for summary judgment, [the plaintiff] need only ‘put forth evidence of 16 retaliatory motive, that, taken in light most favorable to him, presents a genuine issue of material fact 17 as to [the defendant’s] intent[.]’” Brodheim, 584 F.3d at 1271 (quoting Bruce v. Ylst, 351 F.3d 1283, 18 1289 (9th Cir. 2003)). Suspect statements combined with suspect timing can properly be considered as 19 circumstantial evidence of retaliatory intent. Bruce, 351 F.3d at 1289; Pratt v. Rowland, 65 F.3d 802, 20 807 (9th Cir. 1995). Here, Plaintiff provides evidence of just that. 21 According to Plaintiff, both of the defendants called him a liar and expressed hostility toward 22 Plaintiff for filing the June 30, 2007 grievance. Plaintiff asserts that at one point, Defendant Brian 23 explicitly threatened to send Plaintiff to “the hole” for lying in the grievance. Plaintiff declares that 24 shortly thereafter, Defendants retaliated against him by filing false disciplinary charges against him. 25 1 26 27 28 Defendants argue in their reply that the “glaring deficiency with plaintiff’s claim is his failure to produce the 602 [grievance] which he bases his ‘protected conduct.’” (Doc. 39 at 2.) Although a copy of the grievance would certainly aid Plaintiff in conclusively establishing that he did, in fact, file a grievance on June 30, 2010, it is not Plaintiff’s burden as the nonmoving party to conclusively prove his case. On Defendants’ motion for summary judgment, Plaintiff must simply provide evidence demonstrating the existence of a genuine issue of material fact. Plaintiff’s declaration that he submitted a grievance against Defendants regarding cold food on June 30, 2010 is sufficient in this regard. 6 1 Plaintiff emphasizes that the retaliatory incident occurred mere minutes after Defendant Brian had 2 finished berating Plaintiff over the contents of the June 30, 2007 grievance. (Doc. 1 at 3-5.) 3 Accordingly, accepting Plaintiff’s evidence as true and drawing all inferences from the parties’ 4 evidence in favor of Plaintiff as the nonmoving party, the Court finds that there are genuine issues of 5 material fact precluding summary judgment in Defendants’ favor. In particular, questions of material 6 fact remain as to (1) whether Plaintiff filed a grievance on June 30, 2007 against Defendants regarding 7 the service of cold meals; (2) whether Defendants had knowledge of the grievance; and (3) whether 8 retaliation was the motivating factor behind Defendants’ actions. These questions cannot be resolved 9 on this record on a motion for summary judgment and must be submitted to a trier of fact. See Nelson 10 v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009) (“A judge must not grant summary judgment based 11 on his determination that one set of facts is more believable than another.”). 12 IV. PLAINTIFF’S FAILURE TO FOLLOW LOCAL RULE 260(b) IS NOT DISPOSITIVE 13 Local Rule 260(b) requires, “Any party opposing a motion for summary judgment or summary 14 adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those 15 facts that are undisputed and deny those that are disputed, including with each denial a citation to the 16 particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other 17 document relied upon in support of that denial.” In L. Qiy Am Pogue v. Woodford, 2009 U.S. Dist. 18 LEXIS 75943at *14-18 (E.D. Cal. Aug. 25, 2009), the Court observed, 19 22 In making their motion for summary judgment, defendants correctly, and pursuant to the rules of this court, set forth a separate statement of undisputed facts. Eastern District Local Rule 56-260. Plaintiff is supposed to counter this with a fact-by-fact agreement, agreement in part and/or a showing by reference of where the court might find a disputed fact. The reasons for the court rules are obvious -- the adjudicator should be able to look in one place to see if a party is disputing a fact set forth by the moving party as undisputed. 23 (Emphasis added.) However, as here, in Richardson v. Runnels, 594 F.3d 666, 670 (9th Cir. 2010), the 24 pro se prisoner-plaintiff failed to respond to the defendants’ separate statement of undisputed facts. 25 However, this deficiency was of little moment to the Richardson Court who affirmed in part and 26 reversed in part the grant of summary judgment by the District Court. Therefore, though the Court does 27 not condone Plaintiff’s failure to comply with Local Rule 260(b), given the relatively limited number 28 of factual issues raised in this litigation, the Court does not find that granting the motion based upon 20 21 7 1 Plaintiff’s deficiency is warranted. 2 V. DEFENDANTS’ OBJECTIONS TO PLAINTIFF’S DECLARATION 3 A. Objection to paragraph 3 4 Defendants object that Plaintiff’s sworn assertion that he submitted a grievance before July 2, 5 2007 “is not the best evidence” and seem to claim that Plaintiff was obligated to produce an actual copy 6 of the grievance, rather than merely testify about it. Notably, there is no indication from Defendants that 7 Plaintiff retained a copy of the grievance or was provided a copy. To the contrary, Plaintiff’s evidence 8 demonstrates that Defendants refused to return him a copy of the grievance. (Doc. 37 at 2 ¶ 5) 9 It appears that Defendants rely upon Federal Rules of Evidence Rule 10022 which provides, “To 10 prove the content of a writing, recording, or photograph, the original writing, recording, or photograph 11 is required, except as otherwise provided in these rules or by Act of Congress.” However, the gist of 12 Plaintiff’s evidence is not related to proving that Plaintiff filed a grievance related to cold food. Whether 13 the grievance related to cold food or some other topic is irrelevant to the litigation. Instead, the purpose 14 of the evidence is to demonstrate that he filed a grievance at all. Thus, Rule 1002 does not apply because 15 Plaintiff does not seek to prove the content of the writing. The objection is recommended to be 16 OVERRULED. 17 B. 18 Defendants seem to object to the statement in which Plaintiff surmises that his grievance was 19 destroyed or misplaced by Defendants.3 The Court agrees that this statement is not supported by 20 adequate foundation and, as a result, is speculative. Therefore, these objections are recommended to be 21 GRANTED. Objection to paragraph 5 22 On the other hand, it appears that Defendants contend again, according to Rule 1002, that 23 Plaintiff was obligated to provide a copy of the grievance. For the same reason set forth above, this 24 objection is recommended to be OVERRULED. 25 26 27 2 Defendants fail to cite to any legal authority to support their objections nor do they explain the bases for their objections. Thus, the Court is forced to guess at their meaning. 3 28 Once again, Defendants’ failure to specify the objectionable material has required to the Court to guess at which portion of the paragraph that they believe is at issue. This failure is sufficient to deem the objections waived. 8 1 C. 2 Defendants contend that this paragraph is hearsay. Assuming that they are referring to Plaintiff’s 3 statement that Defendant Volker called him a “liar,” this is a statement by a party-opponent and, as such, 4 is an exception to the hearsay rule. Fed. Rules Evid. 801(d)(2). The objection is recommended to be 5 OVERRULED. 6 D. 7 Defendants contend that this paragraph is hearsay. Assuming that they are referring to Plaintiff’s 8 statement that Defendant Brian said to him, “You are a liar” and threatened to spray Plaintiff with pepper 9 spray, these statements are spoken by a party-opponent and, as such, is an exception to the hearsay rule. 10 Objection to paragraph 6 Objection to paragraph 7 Fed. Rules Evid. 801(d)(2). The objection is recommended to be OVERRULED. 11 E. Objection to paragraph 8 12 Defendants contend that this paragraph is hearsay. Assuming that they are referring to Plaintiff’s 13 statement that Defendant Brian said to Officer Bettencourt, “Don’t. I will handle this,” this statement 14 was spoken by a party-opponent and, as such, is an exception to the hearsay rule. Fed. Rules Evid. 15 801(d)(2). The objection is recommended to be OVERRULED. 16 F. Objection to paragraph 9 17 Defendants contend that this paragraph is hearsay. They do not identify which of the statements 18 contained in the paragraph are at issue. Given the number of statements contained in this paragraph, the 19 Court refuses to speculate as to which, or all, of the statements are at issue. Thus, the objection is 20 recommended to be OVERRULED. 21 G. Objection to paragraph 11 22 Defendants contend that this paragraph is speculative apparently because Plaintiff claims to have 23 knowledge that Defendants knew of his grievance. However, earlier in the declaration, Plaintiff reports 24 that he gave the grievance to Volker and that both defendants made comments to him related to its 25 contents. Thus, Plaintiff’s report that he has knowledge that Defendants knew of the grievance is not 26 speculative but is based upon a reasonable conclusion drawn by him based upon the information known 27 to him. Therefore, the objection is recommended to be OVERRULED. 28 /// 9 1 IV. CONCLUSION 2 Thus, for all the reasons set forth above, it is HEREBY RECOMMENDED, 3 1. Defendants’ December 1, 2010 motion for summary judgment (Doc. 33) be DENIED; 4 2. Defendants’ January 21, 2011 objections to Plaintiff’s declaration (Doc. 37) be 5 GRANTED IN PART and DENIED IN PART. 6 These findings and recommendations are submitted to the United States District Judge assigned 7 to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Within 14 days after being served 8 with these findings and recommendations, any party may file written objections with the Court and serve 9 a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings 10 and Recommendations.” Any reply to the objections shall be filed and served within fourteen days after 11 service of the objections. The parties are advised that failure to file objections within the specified time 12 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 13 1991). 14 15 IT IS SO ORDERED. 16 Dated: March 31, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10
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