-NLS (PC) Uribe v. McKesson et al, No. 1:2008cv01285 - Document 109 (E.D. Cal. 2011)

Court Description: ORDER Granting In Part And Denying In Part Defendants' Motion For Summary Judgment (Dkt Nos. 71 , 85 ), signed by District Judge Dana M. Sabraw on 1/3/2011. (Fahrney, E)

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-NLS (PC) Uribe v. McKesson et al Doc. 109 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 FRESNO DIVISION 11 12 Civil No. CESAR URIBE, CDC #K-12001, 08CV01285 DMS (NLS) 13 Plaintiff, 14 15 16 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT vs. (Dkt Nos. 71, 85) J. McKESSON, et al., 17 Defendants. 18 19 20 Plaintiff Cesar Uribe ("Uribe"), a state prisoner incarcerated at California State Prison Corcoran 21 and housed in the Substance Abuse Treatment Facility and State Prison ("SATF"), proceeding pro se 22 and in forma pauperis with a civil rights complaint pursuant to 42 U.S.C. § 1983, alleges prison officials 23 violated his "state tort and federal constitutional rights to be free from intentional physical injury to his 24 person and retaliation for exercising his right to access to the courts as protected by state tort law and 25 the First Amendment of the United States Constitution."1 (Dkt No. 1, 5:3-7.) He names as Defendants 26 four SATF correctional officers, sued in their individual capacities, and his claims arise from incidents 27 28 1 This matter was reassigned for all purposes on November 26, 2008 from the Eastern District of California to the undersigned Visiting Judge in the Southern District of California. (Dkt No. 6.) 1 E.D. California 1:08cv1285-DMS(NLS) Dockets.Justia.com 1 occurring on February 22, 2007. He seeks declaratory relief and compensatory and punitive damages. 2 Defendants filed a Motion For Summary Judgment ("Motion") on July 23, 2010.2 Both the Court and 3 Defendants provided Uribe with notice of the requirements for opposing summary judgment. (Dkt Nos. 4 71-1, 72.) Uribe filed a lengthy Opposition (Dkt Nos. 79-86), and Defendants filed a Reply (Dkt No. 5 88). After careful consideration of the parties' briefing and exhibits in light of controlling legal authority, 6 the Court GRANTS the Motion in part and DENIES the Motion in part. 7 I. BACKGROUND 8 Uribe had a February 22, 2007 deadline to mail certain documents from the prison to the courts 9 in a matter separate from this lawsuit. When he first attempted to present his legal papers in the 10 appropriate office at about 3:00 p.m., Defendant floor officers J. McKesson, Martinez, and Zaragosa told 11 him to come back "after chow." His legal mail was eventually processed on February 22, but not before 12 the occurrence of three allegedly retaliatory incidents forming the subject matter of this action: an 13 alleged assault and battery; a cell search allegedly conducted with improper motivation and in a 14 "ransacking" manner; and the allegedly retaliatory confiscation and destruction of permissible personal 15 property removed from Uribe’s cell in the course of the search. 16 Uribe returned to the floor office at about 7:00 p.m. to present his legal mail for processing, as 17 instructed. He alleges he again tendered the documents to Defendants Martinez, McKesson, and 18 Zaragosa for acceptance and signature, but was met with "contempt, hostility, and disrespect," profanity, 19 and a "refus[al] to process and send out plaintiff's legal mail." (Dkt No. 1, pp. 6, 7:8-10.) He told 20 defendant McKesson of his court deadline, and McKesson allegedly "lied" and told him he did not have 21 to process out-going legal mail for anyone "because in fact they did not intend to send out/process 22 plaintiff's legal mail." (Id. at 7:12-17.) While Defendant Zaragosa looked on, McKesson allegedly "told 23 defendant CO Martinez to slam the door in plaintiff's face . . . . Defendant CO Martinez then 24 intentionally, wrongfully, unlawfully, and violently assaulted and battered plaintiff by nearly hitting 25 26 27 28 2 By Order entered August 17, 2010, the Court solicited confidential statements from the parties regarding their assessments as to whether this case would benefit from a settlement proceeding with a magistrate judge under the Prisoner Settlement Program. (Dkt No. 73.) Settlement efforts were made, but were ultimately deemed unsuccessful in October 2010. 2 E.D. California 1:08cv1285-DMS(NLS) 1 [Uribe's] face with the door, putting him in fear, and smashing his foot in between the door and doorway, 2 causing plaintiff physical injury and pain and suffering, while all three defendants laughed at the 3 incident." (Id. at 7:20-25.) 4 Uribe alleges he "then attempted to step out of the housing unit to go to the Program Office to 5 speak to the Sergeant about his insubordinate officers and their refusal to accept and process his legal 6 mail, but was stopped by defendant CO A. Tuzon, housing unit control tower officer." (Id. at 7:26-5:1.) 7 When he told Officer Tuzon he "needed to talk to the sergeant about the floor officers' refusal to send 8 out his legal mail and their misconduct," Tuzon told him he wasn't going anywhere and closed the exit 9 gate, "and further impeded plaintiff's access to the courts by ordering plaintiff to go back to his cell and 10 lock up." (Id. at 8:3-1.) After Tuzon told the floor officers of "plaintiff's intentions," and after Uribe 11 "further expressed concern about his legal mail meeting the court deadline," those officers called him 12 back to the floor office to take and log his legal mail "as is the established procedure," but not before 13 further disrespecting him. (Id. at 8:7-16.) According to Uribe, 14 15 16 17 Defendant J. Mc[K]esson called me back to the office and shouted more profanity. Among other things, he yelled, "Where the fuck did you think you were going, you fucken punk!?; I'll handcuff your fucken stupid ass and escort you over there myself and tell the sergeant you were trying to escape!" I told J. Mc[K]esson that I wanted to be escorted over there, so that way I could at least tell the sergeant about what they were doing. J. Mc[K]esson then told J. Martinez to take my legal mail so they could sign it. 18 (Dkt No. 81, 6:1-6.) 19 Uribe alleges the three floor officers "all stood up and followed behind" him as he began walking 20 back to his cell. (Dkt No. 1, 8:16-17.) When he reached his cell, he told his cellmate the floor officers 21 might be coming into the cell. He alleges Defendant McKesson then "shouted 'You best believe I'm 22 coming in there!'" (Id. at 8:17-20; Dkt No. 81, 6:6-11.) Uribe and his cellmate were confined in a 23 shower cage holding area while McKesson and Zaragosa "ransacked plaintiff's cell," with Martinez 24 standing by the shower cage "as if to keep guard," although he "occasionally would walk to and from 25 plaintiff's cell." (Dkt No. 1, 8:21-24.) Uribe describes verbal exchanges with Martinez which he 26 27 28 3 E.D. California 1:08cv1285-DMS(NLS) 1 contends substantiate the cell-search was retaliatory.3 (Id. at 8:25-9:3.) When the prisoners were 2 allowed to go back to their cell, Uribe saw McKesson walking away with a plastic bag containing Uribe's 3 property. McKesson allegedly "yelled, 'That's what you get for telling me to do my job!; you wanted me 4 to do my job and send out your legal mail, well now I'm also doing my job!'" (Id. at 9:4-8.) Uribe 5 describes his cell as "left in shambles," with "[a]ll his remaining property. . . on the floor and stepped 6 on." (Id. at 9:9-10.) He "also discovered that some of his personal property, such as a pair of shoes, 7 hobby craft materials and tools, and clothes, were taken and destroyed." (Id. at 9:10-12.) 8 9 Based on that conduct, Uribe presents a First Amendment federal constitutional claim and pendant state tort law claims in his verified Complaint, alleging: 10 Defendants CO's J. McKesson, Martinez, Zaragosa, and A. Tuzon showed disdain and contempt toward plaintiff because he is and made known to them that he is a litigious inmate. Defendants then attempted to dissuade, discourage, and finally intimidate and retaliate against plaintiff for wanting to send out his legal mail to the court. Defendants' assault and battery on plaintiff and their confiscation and destruction of his personal property were solely motivated by their intent to stop plaintiff from exercising his right to access to the courts. Furthermore, beyond these tangible harms, the defendants' actions chilled plaintiff's First Amendment rights and did not reasonably advance any penological goals. 11 12 13 14 15 16 (Id. at 9:13-22, 10:18-26.) 17 The docket reflects considerable activity associated with discovery issues in this matter, 18 including Uribe's unsuccessful May 2010 Motion For Sanctions for alleged spoliation of evidence arising 19 from the destruction of cell search records, in particular McKesson's February 22, 2007 cell search 20 receipts and the February 2007 cell/locker search log book for the SATF Facility E, Housing Unit #2. 21 (Dkt Nos. 63-64.) Those records would be relevant to the disputed fact whether McKesson searched 22 more than just Uribe's cell that day. The loss of those records had been substantiated in connection with 23 Uribe's January 2010 motion to compel further discovery responses from McKesson, who provided a 24 Declaration authenticating the CDCR institutional records retention policy and memorializing his 25 26 27 28 3 For example, when Uribe responded to a question from Martinez with the answer that he had been incarcerated for thirteen years, Martinez allegedly said: "'And you still haven't figured it out that this is what happens to inmates like you?' Plaintiff retorted, 'So I can't do any legal work and send out my legal mail?', to which CO Martinez stated 'Not if you don't want this to happen' -- meaning the retaliation." (Dkt No. 1, 8:259:2.) 4 E.D. California 1:08cv1285-DMS(NLS) 1 determination that the relevant confiscated property receipts and log book had been destroyed in 2 February 2008 and February 2009 respectively in accordance with that policy.4 (See Dkt No. 89.) 3 In support of their Motion, Defendants argue: Uribe's federal claim does not amount to a 4 constitutional violation; two of the four named defendants did not personally participate in some or all 5 of the alleged retaliatory conduct and therefore cannot be held liable for any constitutional violation; and 6 the court should decline to exercise supplemental jurisdiction over the state law tort claims or, 7 alternatively, should find them to be time-barred under the California Government Claims Act. (Dkt 8 No. 71.) Each Defendant offers his own sworn Declaration in support of the Motion (Dkt Nos. 71-4, 9 71-5, 71-6, and 71-7), and they also collectively rely upon, among other things, Uribe's medical records 10 (Dkt No. 71-8) as proof he received no physical injury, and on the tort claim denial records from the 11 California Government Claims Board (Dkt No. 71-9), which triggered the running of a six-month statute 12 of limitations on his state law causes of action. 13 Uribe filed a comprehensive Opposition to the Motion comprised of Points and Authorities, his 14 Declaration with multiple exhibits, the Declarations of three inmate percipient witnesses, objections to 15 Defendants' evidence with a Motion To Strike (Dkt No. 85), and a response to Defendants' Separate 16 Statement of Undisputed Facts. (Dkt Nos. 79-86.) Defendants filed a cursory Reply. (Dkt No. 88.) 17 II. 18 DISCUSSION A. 19 Legal Standards 1. Civil Rights Act, 42 U.S.C. § 1983 20 The Civil Rights Act, 42 U.S.C. § 1983 ("Section 1983"), "'is not itself a source of substantive 21 rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Graham v. 22 Connor, 490 U.S. 386, 393-94 (1989)(citation omitted). Section 1983 liability "arises only upon a 23 showing of personal participation by the defendant," acting under color of state law, that deprived the 24 plaintiff of a constitutional or federal statutory right. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 25 26 27 28 4 In her October 21, 2010 Order denying Uribe's sanctions motion, the Magistrate Judge found that none of the named Defendants personally participated in or had knowledge of the documents' destruction, nor were they aware Uribe would seek those documents until he requested them in October 2009, after they had already been destroyed. (Dkt No. 89, pp. 6-8, 8:2-3 ("The Court finds that sanctions are not warranted because the duty to preserve the evidence had not yet arisen and the records were not destroyed with a culpable state of mind.").) 5 E.D. California 1:08cv1285-DMS(NLS) 1 1989). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of 2 section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 3 an act which he is legally required to do that causes the deprivation of which complaint is made." 4 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 5 Federal courts hold a pro se litigant’s pleadings to "less stringent standards than formal pleadings 6 drafted by lawyers." Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987)(punctuation and citation 7 omitted); see also Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)(per curiam). However, "a liberal 8 interpretation of a civil rights complaint may not supply essential elements of the claim that were not 9 initially pled." Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, the benefit 10 of liberal construction does not entitle prisoners' pro se pleadings to receive the benefit of every 11 conceivable doubt, but only the drawing of reasonable factual inferences. McKinney v. De Bord, 507 12 F.2d 501, 504 (9th Cir. 1974). 13 2. Prison Litigation Reform Act 14 The Prison Litigation Reform Act of 1996 ("PLRA"), 42 U.S.C. § 1997e, modified the 15 processing of pro se prisoners' civil rights complaints. The court may now at any time dismiss an action 16 or portions of an action, sua sponte or on a party's motion, if the "action is frivolous, malicious, fails to 17 state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune 18 from such relief." 42 U.S.C. § 1983e(c); see also 28 U.S.C. § 1915. The PLRA also restricts the 19 availability and extent of remedies prisoners may seek in civil rights actions. For example, the recovery 20 of compensatory damages for mental or emotional injury suffered while in custody requires "a prior 21 showing of physical injury" that is more than de minimus. 42 U.S.C. § 1997e(e)("[n]o federal civil 22 action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without 23 a prior showing of physical injury”); see Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002)(the physical 24 injury "need not be significant" but it "must be more than de minimus"); see also Jackson v. Carey, 353 25 F.3d 750, 758 (9th Cir. 2003); cf. Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998)(no such 26 showing applies to allegations of constitutional violations not premised on mental or emotional injury, 27 such as claims arising under the First Amendment, "regardless of the form of relief sought"). 28 The PLRA provides that prisoners must exhaust "such administrative remedies as are available" 6 E.D. California 1:08cv1285-DMS(NLS) 1 before bringing a lawsuit. 42 U.S.C. § 1997e(a). A failure to exhaust is not jurisdictional, but rather an 2 affirmative defense that defendants must raise and prove. Although inmates are not required to plead 3 specifically or demonstrate exhaustion in their complaints (see Jones v. Bock, 549 U.S. 199, 212-17 4 (2007)), Uribe alleges exhaustion (see Dkt No. 1, p. 2), and Defendants do not dispute that 5 representation. 6 3. Summary Judgment Standard Of Review 7 Any claiming or defending party may move, with or without supporting affidavits, for summary 8 judgment on all or part of the claim. Fed. R. Civ. P. 56(a), (b). Summary judgment is properly entered 9 "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no 10 genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." 11 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)(citing Fed. R. Civ. P. 56(c)); Anderson v. Liberty 12 Lobby, Inc. 477 U.S. 242, 256 (1986). "A material issue of fact is one that affects the outcome of the 13 litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard 14 Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). The substantive law defining the elements of the claim 15 controls the materiality of facts. See Anderson, 477 U.S. at 248. A complete failure of proof concerning 16 an essential element of the non-moving party's case necessarily renders all other facts immaterial. See 17 Celotex, 477 U.S. at 323. 18 The moving party bears the initial "burden of showing the absence of a genuine issue as to any 19 material fact, and for these purposes the material it lodged must be viewed in the light most favorable 20 to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In satisfying this 21 burden, the movant is not required to produce evidence negating the non-movant's claims. Lujan v. Nat'l 22 Wildlife Fed'n, 497 U.S. 871, 885, 888-89 (1990)("the purpose of Rule 56 is to enable a party who 23 believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at 24 least one sworn averment of that fact before the lengthy process of litigation continues"). If the moving 25 party fails to discharge this initial burden, summary judgment must be denied, "even if no opposing 26 evidentiary matter is presented." Adickes, 398 U.S. at 159-60. 27 If the movant carries its burden, the burden then shifts to the non-moving party to establish facts 28 beyond the pleadings showing that a genuine issue of disputed material fact makes summary judgment 7 E.D. California 1:08cv1285-DMS(NLS) 1 inappropriate. Celotex, 477 U.S. at 324; Adickes, 398 U.S. at 157. The opposing party must "go beyond 2 the pleadings and by her own affidavits, or by 'the depositions, answers to interrogatories, and 3 admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 4 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). That party may not rest on conclusory allegations or mere 5 assertions (see Taylor, 880 F.2d at 1045), and the "mere existence of a scintilla of evidence in support 6 of the non-moving party's position is not sufficient" to create a genuine issue for trial. Arpin v. Santa 7 Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001); see also Matsushita Elec. Indus. Co., 8 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Bias v. Moynihan, 508 F.3d 1212, 1218 9 (9th Cir. 2007). The opposing party must present probative evidence of specific and material factual 10 issues that "can be resolved only by a finder of fact because they may reasonably be resolved in favor 11 of either party." Anderson, 477 U.S. at 249-50, 256 (citation omitted); see also Leer v. Murphy, 844 12 F.2d 628, 634 (9th Cir. 1988). 13 The Court accepts the version of facts most favorable to the non-moving party in ruling on a 14 motion for summary judgment. Anderson, 477 U.S. at 255. The Court does not make credibility 15 determinations, weigh conflicting evidence, or draw its own inferences, as those are functions reserved 16 for the trier of fact. Id. at 249, 255, 249 (the district court’s role on summary judgment is merely to 17 determine whether there is a genuine issue for trial). "[W]here the [material] facts specifically averred 18 by [the opposing] party contradict facts specifically averred by the movant, the motion must be denied." 19 Lujan, 497 U.S. at 888. Considering the evidence from both sides, "[i]f reasonable minds could differ" 20 and there is "evidence on which the jury could reasonably find for the [non-moving] party," summary 21 judgment for the moving party is also improper. Anderson, 477 U.S. at 252. Conversely, summary 22 judgment must be entered for the moving party "if, under the governing law, there can be but one 23 reasonable conclusion as to the verdict." Id. at 250-251; Celotex, 477 U.S. at 325; see San Diego Police 24 Officers' Ass'n v. San Diego City Emps. Ret. Sys., 568 F.3d 725, 733 (9th Cir. 2009)(a "moving party 25 is entitled to judgment as a matter of law" when, viewing the evidence "in the light most favorable to 26 the non-moving party, there are no genuine issues of material fact"). 27 B. 28 As part of his Opposition to Defendants' Motion, Uribe asks the Court to take judicial notice of Plaintiff's Request For Judicial Notice 8 E.D. California 1:08cv1285-DMS(NLS) 1 fourteen items, pursuant to Federal Rule of Evidence 201 ("Rule 201"). (Dkt No. 80.) Rule 201 allows 2 the Court to consider facts "capable of accurate and ready determination by resort to sources whose 3 accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). The rule "governs only judicial 4 notice of adjudicative facts." Fed. R. Evid. 201(a)(emphasis added). 5 All but two of the items Uribe lists in his Request For Judicial Notice are whole documents filed 6 in this action and entered in the case docket, provisions of the California Code of Regulations, or federal 7 rules of court. None qualifies as an "adjudicative fact" within the scope of Rule 201. Codified matters 8 constitute legislative facts that may be judicially noticed without obtaining special leave. The other two 9 items Uribe requests the Court to take judicial notice of are a portion of the December 2008 Prison Legal 10 News publication (provided as Exhibit B to Dkt No. 80) and a 1995 Eastern District civil rights case. 11 The Court finds both documents immaterial to the resolution of this Motion and denies Uribe’s request 12 for judicial notice. 13 C. 14 Defendants do not challenge the timeliness of Uribe’s constitutional claim alleging retaliatory 15 conduct in violation of his First Amendment rights. However, in addition to his federal claim, Uribe 16 alleges Defendants McKesson and Martinez used unlawful force and assaulted him in the alleged door- 17 slamming incident, while defendant "Zaragosa laughed," in violation of his rights under the California 18 Civil Code and California tort law.5 (Dkt No. 1, 10:10-15.) Defendants argue, should the Court grant 19 their Motion as to Uribe’s federal constitutional claim, it should “decline to exercise supplemental 20 jurisdiction over Plaintiff[']s pendant state law claims pursuant to 28 U.S.C. § 1367(c)(3)." (Dkt No. 21 71-2, 2:8-11.) However, for the reasons discussed below, the Court finds triable issues of material fact 22 preclude summary adjudication of Plaintiff’s federal claim. Plaintiff's Supplemental State Law Claims Are Dismissed As Time-Barred 23 24 25 26 27 28 5 In its entirety, the Complaint alleges as Uribe's "State Claim For Relief:" "Defendants CO J. Mckesson and CO Martinez wilfully, intentionally, and unlawfully used unnecessary force and assaulted and battered plaintiff by placing him in apprehension of injury to his face and by smashing his foot with the door and door way, causing extreme pain and emotional distress, as CO Zaragosa laughed, in violation of California Civil Code §§ 25, 27, 43, 1708 and California state tort judicial law." (Dkt No. 1, 10:9-15.) However, his Government Claims Form also included the additional allegations advanced in this lawsuit that after they allegedly "slammed the door on [his] foot and smashed it between the door and the doorway," Defendants "then proceeded to maliciously ran sack my cell and left it in shambles in retaliation." (Dkt No. 71-9, p. 7.) Consequently, any state law theories of recovery for that additional conduct are also time-barred for the same reasons. 9 E.D. California 1:08cv1285-DMS(NLS) 1 Alternatively, Defendants argue Uribe's supplemental state tort claims must be dismissed because 2 they "are time-barred by the California Government Act." (Dkt No. 71-2, 2:8-11); see Cal. Gov. Code 3 § 945.6(a)(1)(“any suit brought against a public entity on a cause of action for which a claim is required 4 to be presented in accordance with [the Tort Claims Act] must be commenced: (1) If written notice is 5 given in accordance with Section 913, not later than six months after the date such notice is personally 6 delivered or deposited in the mail.”). Injured parties in California seeking to sue a public entity or public 7 employees for damages must first comply with the Government Tort Claims provisions of the state 8 statutes and must present a timely written claim for damages to the entity. Cal. Gov. Code § 911.2; 9 California v. Superior Court (Bodde), 32 Cal.4th 1234, 1239 (2004). There is no dispute Uribe timely 10 filed a written claim for damages with the Government Claims Board. (Dkt No. 71-9, p. 6); Shirk v. 11 Vista Unified School Dist., 42 Cal.4th 201, 208-09 (2007)("Accrual of a cause for purposes of the 12 government claims statute is the date of accrual that would pertain under the statute of limitations 13 applicable to a dispute between private litigants."). The Board rejected Uribe's claim and notified him 14 of that action by letter dated December 19, 2007. (Dkt No. 71-9, p. 5; Dkt No. 1, 10:2-4.) The Board's 15 written notice cites Government Code Section 945.6 and expressly states "You have only six months 16 from the date this notice was personally delivered or deposited in the mail to file a court action on this 17 claim." (Dkt No. 71-9, p. 5.) 18 In contrast to the two-year limitations period applicable to the presentation of a government tort 19 claim, subsequent lawsuits arising from the same conduct "against a public entity or public employees 20 are governed by the specific statute of limitations provided in the Government Code, not the statute of 21 limitations that applies to private defendants." Moore v. Twomey, 120 Cal. App. 4th 910, 913 (2004); 22 Martell v. Antelope Valley Hosp. Med. Ctr., 67 Cal. App. 4th 978, 981 (1998). "Government Code 23 section 945.6 requires 'any suit brought against a public entity' to be commenced no more than six 24 months after the public entity rejects the claim." Moore, 120 Cal. App. 4th at 914, (quoting Cal. Gov. 25 Code § 945.6(a)(1)). A civil action is "commenced" by filing a Complaint with the court. Cal. Code 26 Civ. P. § 352.1(b); Fed. R. Civ. P. 3. Uribe filed his Complaint on August 29, 2008–“a little over two 27 months late" under California Government Code § 945.6(a)(1). (Dkt No. 71-2, 12:17-21.) While 28 acknowledging his statute of limitations problem with respect to the state law claims in his Complaint, 10 E.D. California 1:08cv1285-DMS(NLS) 1 Uribe argues Defendants waived that defense, the six-month deadline should be equitably tolled, or 2 Defendants should be estopped from asserting it at this late date. 3 "Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant's 4 answer or in an amendment thereto." Day v. McDonough, 547 U.S. 198, 202, 205 (2006)(citing, inter 5 alia, Fed. R. Civ. P. 8(c)(1)("In responding to a pleading, a party must affirmatively state any avoidance 6 or affirmative defense, including: . . . statute of limitations. . . .")). Defendants can waive a statute of 7 limitations defense, and, if they do, a court is not precluded from reaching the merits of an untimely 8 claim. Uribe argues Defendants waived the statute of limitations defense through their "failure to assert 9 it as an affirmative defense" in either of their Answers filed in this action.6 (Dkt No. 85, 2:11-13.) He 10 relies on Rule 8(c) for the proposition: "If not asserted in a responsive pleading, the affirmative defense 11 is waived, and evidence of such defense is inadmissible at trial." (Id. at 2:23-26 (citing, inter alia, 12 Arizona v. California, 530 U.S. 392, 410 (2000), Jones v. Bock, 549 U.S. 199, 212 (2007)).) 13 Uribe further argues Defendants' "failure to assert the defense did in fact prejudice plaintiff by 14 unfairly surprising him and denying him the opportunity to conduct any discovery to rebut and controvert 15 that argument, where plaintiff was ready to file his lawsuit within the required six-month limitation and 16 in a timely manner but was prevented from doing so by prison officials, which leaves plaintiff with an 17 equitable estoppel defense, among other things, that he could have justified with proper evidence 18 obtained through discovery had he known this affirmative defense would be relied on." (Dkt No. 85, 19 2:14-20.) He declares he was "ready to submit my federal lawsuit" on May 28, 2008, but could not pay 20 the filing fee, and prison officials "failed to provide me with the certified copy" of his Inmate Trust 21 Account balance statement to support his in forma paurperis request, causing him to miss his June 19, 22 2008 filing deadline.7 (Dkt No. 81, ¶¶ 14-17.) Nevertheless, neither a waiver nor an estoppel argument 23 24 25 26 27 28 6 Defendants McKesson, Zaragosa, and Tuzon filed an Answer to the Complaint in April 2009. (Dkt No. 15.) Defendant Martinez filed a separate Answer in May 2009. (Dkt No. 19.) 7 Uribe further asserts the institution has an alleged "practice or custom of failing to provide inmates certified copies of their trust account statements" (Dkt No. 81, ¶ 19), and offers evidence and argument in support of that contention (Dkt No. 79, pp. 7-11). However, those allegations are beyond the scope of the claims raised in his Complaint. In any event, he names no individual against whom he could pursue a Section 1983 unconstitutional policy or custom theory as he alleges no personal participation by any of the Defendants named here associated with the alleged obstruction of his obtaining a timely certified trust account statement. 11 E.D. California 1:08cv1285-DMS(NLS) 1 can relieve him from the untimeliness bar to his judicial pursuit of the state law claims. Under 2 California Government Code § 945.6(a)(1), the time within which to file a claim against a government 3 entity or public employee can be tolled in circumstances where the claimant can show surprise, mistake, 4 or excusable neglect. However, no such facts can be used to extend the six-month statutory period after 5 rejection of a claim within which a lawsuit must be file. See Atchison, Topeka & Santa Fe R.R. Co. v. 6 Stockton Port Dist., 140 Cal. App. 3d 111, 115-16 (1983); see also Martell, 67 Cal. App. 4th at 982 7 ("Where the notice of rejection complies with [the Act's requirements] the six-month statute of 8 limitations cannot be extended by provisions outside the Tort Claims Act" and a "number of decisions 9 illustrate the extent to which the Act trumps other statutes")(internal punctuation and citations omitted); 10 see also Chase v. California, 67 Cal. App. 3d 808, 812 (1977)(where a statute such as the Tort Claims 11 Act prescribes that "an action against the state 'must be commenced within six months', the requirement 12 is mandatory"). Federal equitable estoppel principles may not be applied to a pendant state claim 13 foreclosed by a state's mandatory limitations period. See, e.g. Ervin v. Los Angeles, 848 F.2d 1018, 14 1019-20 (9th Cir. 1988). Accordingly, Defendants' Motion for dismissal of Uribe's pendant state law 15 claims as untimely pursuant to California Government Code § 945.6(a)(1) is GRANTED. 16 17 D. Evidentiary Objections And Motion To Strike 1. Objection Nos. 1 Through 3 18 Uribe objects to portions of Defendants' evidence submitted in support of their Motion and 19 moves to strike twenty-one discrete items. (Dkt No. 85.) Enumerated objections 1 through 3 address 20 the statute of limitations argument for dismissal of Uribe's supplemental state law tort claims as time- 21 barred under California Government Code § 945.6, rather than challenging any particular fact or item 22 of evidence offered in support of the Motion. (Id. at pp. 1-2.) The facts associated with Uribe's 23 government tort claims process and the timing of his lawsuit are actually undisputed. (See Dkt No. 1, 24 10:2-3; Dkt No. 71-9, p. 5.) Accordingly, Uribe’s Objections to enumerated items 1 through 3 are 25 OVERRULED and his Motion To Strike these items is DENIED. 26 2. Objection Nos. 4 Through 8 27 Objection No. 4 targets Defendants' Statement Of Undisputed Facts Nos. 5 and 6 referring to 28 Defendants' representations that, had Uribe's foot been smashed by the door as he alleges, he "would 12 E.D. California 1:08cv1285-DMS(NLS) 1 have been in real pain," and there is "no evidence of Plaintiff crying out, screaming in pain, or going man 2 down as a result of his foot being smashed." (Dkt No. 86, 2:13-19.) Objections 5 through 8 relate to 3 portions of the McKesson, Zaragosa, Martinez, and Tuzon Declarations describing their observations 4 as percipient witnesses to Uribe's demeanor and apparently uncompromised mobility at the time and 5 after the time he alleges his foot was hit by the door. (Dkt No. 1, 7:19-25). Uribe objects to that 6 evidence "on the grounds that it is conclusory, argumentative, and inadmissible opinion by lay 7 witnesses." (Dkt No. 85, 3:13-14.) He also disputes Defendants' representations he did not show pain, 8 contending elsewhere he cringed and grimaced in response to the incident, but Defendants did not 9 witness his reaction because they were laughing. He argues their statements and evidentiary proffers 10 should be stricken because they are "conclusory, argumentative, and [supported only by purportedly] 11 inadmissible opinion testimony by lay witnesses." (Id. at 3:5-6, 13-14.) The Court finds each declarant 12 merely states what he contends he personally witnessed. Such evidence is admissible, and it is for a trier 13 of fact to make credibility determinations when the parties present conflicting versions of the truth. 14 Accordingly, Uribe's evidentiary objections on the grounds presented are OVERRULED and his motion 15 to strike that evidence for purposes of deciding this Motion is DENIED. 16 3. Objection Nos. 9, 10, And 20 17 Uribe objects to and moves to strike certain statements in Defendants' Memorandum Of Points 18 and Authorities in support of their Motion. (Dkt No. 85.) However, points and authorities are, by 19 definition, argument, not evidence to be admitted or stricken. As Uribe merely disagrees with 20 Defendants' representations construing the facts and legal authority, those Objections are OVERRULED 21 and his motion to strike them on evidentiary grounds is DENIED. 22 4. Objection Nos. 11 Through 13 23 Uribe objects to Defendants' purportedly Undisputed Material Fact No. 17 and Paragraph 16 in 24 both the McKesson Declaration and the Zaragosa Declaration, each of which states that cells 201, 202, 25 and 203 were searched on the evening of February 22, 2007. Uribe objects to these statements on 26 grounds each is "conclusory, argumentative, and improper." He notes that at the time he filed his 27 Opposition, his Motion For Sanctions for alleged spoliation of evidence related to cell-search records 28 remained under submission with the Magistrate Judge, and he apparently anticipated some impropriety 13 E.D. California 1:08cv1285-DMS(NLS) 1 associated with the destruction of those records would be attributed to the Defendants As noted above, 2 however, that Motion was denied on grounds the cell-search log and search records for the relevant time 3 period were routinely destroyed in accordance with the institution's record's retention policy, with no 4 improper conduct attributable to these Defendants. In addition, Uribe's further objection that the 5 statements are "conclusory and argumentative" is without merit. Both McKesson and Zaragosa were 6 floor officers on duty during the time the incidents giving rise to the litigation occurred and each is 7 alleged to have personally participated in challenged conduct. Each makes an unequivocal statement 8 of fact under oath, not an argument or conclusion, of which each appears to have personal knowledge. 9 The Declarations are accordingly competent evidence for purposes of supporting their Motion. Uribe's 10 Objections merely highlight a disputed issue of fact. His Objections are OVERRULED, and his Motion 11 To Strike those portions of Defendants' evidentiary submissions is DENIED. 12 5. Objection No. 14 13 Uribe moves to strike the Martinez Declaration in its entirety on grounds it is "a sham 14 declaration." (Dkt No. 85, 4:26.) He argues the Declaration contradicts Martinez's sworn responses to 15 the interrogatories Uribe propounded to him because Martinez purportedly "evaded responding to 16 approximately 20 interrogatories by responding he did not recall to virtually all interrogatories and 17 effectively circumventing the discovery process." (Id. at 5:7-9.) He argues "the interest of fairness and 18 due process" require that "defendant J. Martinez not now be allowed to declare facts helpful only to him 19 regarding the day in question when it is in complete contradiction to his sworn-to responses to plaintiff's 20 interrogatories that he did not recall anything from the day in question." (Id. at 5:9-12.) Assuming, 21 arguendo and solely for purposes of deciding the summary judgment motion, that a finder of fact could 22 conclude "Defendant J. Martinez's credibility is seriously undermined" by belated recollections and 23 "should be disregarded, discounted, and rejected" (Id. at 5:14-15), as Uribe argues, it is up to the finder 24 of fact to decide what weight if any to give Martinez's testimonial evidence. Accordingly, Uribe's 25 objection is OVERRULED and the motion to strike the Martinez Declaration is DENIED, as on its face 26 it shows he has personal knowledge of the facts he states under oath. 27 28 6. Objection Nos. 15 Through 19 Uribe objects to and moves to strike a one-sentence paragraph in each of the McKesson, 14 E.D. California 1:08cv1285-DMS(NLS) 1 Zaragosa, Martinez, and Tuzon Declarations on grounds "defendants' expressed opinions and 2 conclusions have no foundation." (Dkt No. 85, 5:24-25.) The paragraph states in its entirety: "The floor 3 office door in question is heavy duty." Uribe also objects to Undisputed Material Fact No. 4, which 4 states “[t]he floor office door in question is heavy duty.” That characterization has no bearing on the 5 resolution of Defendants' summary judgment motion. 6 OVERRULED and the motion to strike that evidence is DENIED as better left for trial, if the weight 7 of the door ultimately is held to have any bearing at all on any material issue. 8 7. Accordingly, Uribe's objections are Objection No. 21 9 Uribe objects to Undisputed Material Fact Nos. 12 and 13 on the basis each is irrelevant. Uribe's 10 assertion he denies Defendants' Undisputed Fact Nos. 12 and 13, which are related to the contents of his 11 medical records in February and April 2007 (showing he was seen during that period only for eczema 12 and low blood pressure), is not sufficient support for his evidentiary objection arguing his medical 13 records around the time of his alleged foot injury are "irrelevant" and should be excluded on that basis. 14 This evidentiary objection is OVERRULED and Uribe’s motion to strike this evidence is DENIED. 15 E. Material Issues Of Fact Preclude Summary Judgment On The First Amendment Retaliation Claim 16 The foregoing determinations dispose of all of Uribe’s claims other than his First Amendment 17 retaliation claim. Uribe alleges: 18 19 20 21 22 23 24 25 Defendants CO's J. Mckesson, Martinez, Zaragosa, and A. Tuzon, individually and all of them collectively conspired to chill the effect of plaintiff's exercise of his First Amendment rights by arbitrarily assaulting and battering him and ultimately ran-sacking his cell, confiscating and destroying his personal property because he exercised his First Amendment rights to seek access to the legal process of the courts and beyond these tangible harms, the defendants' actions chilled his exercise of his First Amendment rights and did not reasonably advance a legitimate correctional goal, in violation of the First Amendment of the United States Constitution. (Dkt No. 1, 10:18-26.) 1. First Amendment Retaliation Legal Standards 26 "[A] prison inmate retains those First Amendment rights that are not inconsistent with his status 27 as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 28 417 U.S. 817, 822 (1974). "Of fundamental import to prisoners are their First Amendment 'right[s] to 15 E.D. California 1:08cv1285-DMS(NLS) 1 file prison grievances,' [citation], and to 'pursue civil rights litigation in the courts.'" Rhodes v. 2 Robinson, 408 F.3d 559, 567 (9th Cir. 2005)(quoting Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003) 3 and Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995)); see also Bradley v. Hall, 64 F.3d 1276, 4 1279 (9th Cir.1995)(prisoners have a constitutional right to meaningful access to the courts, and prison 5 authorities may not penalize or retaliate against an inmate for exercising that right). Allegations of 6 retaliation against a prisoner for exercising his First Amendment rights to speech, to petition the 7 government, or to file a prison grievance can support a Section 1983 claim. Rizzo v. Dawson, 778 F.2d 8 527, 532 (9th Cir. 1985). "And because purely retaliatory actions taken against prisoners for having 9 exercised those rights necessarily undermine those protections, such actions violate the Constitution 10 quite apart from any underlying misconduct they are designed to shield." Rhodes, 408 F.3d at 567; see 11 Austin v. Terhune, 367 F.3d 1167, 1170-71 (9th Cir. 2004); see also Pratt v. Rowland, 65 F.3d 802, 806 12 & n.4, 807 (9th Cir.1995)(retaliation claims "fall within the 'other protection[s] from arbitrary state 13 action' . . . because they are based upon protection of the prisoner's First Amendment rights, and not their 14 Due Process rights"). The prohibition against retaliatory punishment is "clearly established law" in the 15 Ninth Circuit for qualified immunity purposes. Schroeder, 55 F.3d at 461. 16 A valid retaliation claim is comprised of five essential elements: "(1) An assertion that a state 17 actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, 18 and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action 19 did not advance a legitimate correctional goal." Rhodes, 408 F.3d at 567-68. A prisoner suing prison 20 officials under Section 1983 for retaliation "must allege that he was retaliated against for exercising his 21 constitutional rights and that the retaliatory action does not advance legitimate penological goals, such 22 as preserving institutional order and discipline." Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 23 1994)(per curiam). A variety of conduct can be actionable as retaliatory if undertaken for an improper 24 purpose. See, e.g., Rizzo, 778 F.2d at 531-32 (holding prison officials could not transfer an inmate to 25 another prison in retaliation for the inmate's exercise of his First Amendment right to pursue federal civil 26 rights litigation, regardless of whether inmates have an independent right to be held at any particular 27 prison or in any given type of cell). The resulting injury need not be tangible to support the claim. Hines 28 v. Gomez, 108 F.3d 265, 267, 269 (9th Cir. 1997)(an injury asserted to be the chilling effect of an 16 E.D. California 1:08cv1285-DMS(NLS) 1 officer's false accusation on the prisoner's First Amendment right to file prison grievances is a 2 sufficiently substantial basis on which to found a retaliation claim); 3 In addressing retaliation claims, courts "should 'afford appropriate deference and flexibility' to 4 prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be 5 retaliatory" to avoid "excessive judicial involvement in day-to-day prison management, which 'often 6 squander[s] judicial resources with little offsetting benefit to anyone.'" Pratt, 65 F.3d at 807 (quoting 7 Sandin, 515 U.S. at 482.) 8 constitutional rights does not confer the power to manage prisons or the capacity to second-guess prison 9 administrators, for which we are ill-equipped." Bruce, 351 F.3d at 1290. 10 2. "[F]ederal courts must remember that the duty to protect inmates' Defendants' Motion Grounds 11 To obtain summary judgment on a claim of retaliation, Defendants have the burden to 12 demonstrate that there are no genuine issues of fact supported by evidence as to at least one of the 13 essential elements of a retaliation claim and, as a result, the plaintiff cannot prevail on the claim. 14 Celotex, 477 U.S. at 323. Defendants claim entitlement to summary judgment as a matter of law 15 "because Plaintiff's federal retaliation claim does not amount to a constitutional violation." (Dkt No. 16 71-2, 2:5-8.) They "deny Plaintiff's claims concerning the alleged assault and battery, cell search, and 17 property confiscation," but despite those disputed material facts, they summarily contend Uribe lacks 18 evidence to support his allegations because "the record shows there was no assault and battery[;] that 19 the cell search was random, routine, and advanced legitimate correctional goals; and that Plaintiff's 20 property was properly confiscated." (Id. at 3:7-14.) Defendants rely on Scott v. Harris, 550 U.S. 372, 21 380 (2007) for the proposition "when opposing parties tell two different stories, one of which is blatantly 22 contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that 23 version of the facts for purposes of ruling on a motion for summary judgment." (Dkt No. 71-2, 3:8-11.) 24 Defendants thus invite the Court to ignore Uribe's countervailing evidence entirely and to consider the 25 "record" as comprised solely of their own submissions. The Court declines the invitation and finds the 26 three sworn Declarations submitted by Uribe in support of his Opposition, in addition to his own 27 Declaration (Dkt Nos. 81, 82, 83, and 84), appear to be made on personal knowledge by competent 28 declarants and are entitled to as much consideration for the purpose of deciding this Motion as are the 17 E.D. California 1:08cv1285-DMS(NLS) 1 Defendants' own Declarations. 2 3. 3 Standards Applied To Evidentiary Record a. Protected Activity Element 4 Defendants acknowledge "[p]risoners have a constitutionally protected right to pursue civil rights 5 litigation without retaliation." (Dkt No. 71-2, 4:12-14 (citing Rhodes, 408 F.3d at 567).) They further 6 concede, "[t]o the extent that Plaintiff's legal mail was in pursuit of his litigation activity, he was 7 engaged in a protected activity." (Dkt No. 71-2, 4:12-14.) However, they too-narrowly state Uribe's 8 First Amendment claim in summarizing his allegations. Uribe alleges Defendants accepted his legal 9 mail only after Officer Tuzon informed them of Uribe's intention. He further alleges Defendants were 10 motivated in their cell search and property confiscation not only by a desire to retaliate for his 11 persistence in seeking to have his legal mail processed, but also for his attempt to report to their 12 supervising sergeant they were refusing to accept his legal mail. Viewing the facts in the light most 13 favorable to the non-moving party, Uribe’s effort to report the incident may reasonably be construed as 14 an attempt to initiate a grievance. An inmate's reporting of officer misconduct, or the attempt to do so 15 verbally or in writing, constitutes speech or conduct entitled to First Amendment protection. In the 16 retaliation context, there is no "legal distinction . . . between the filing of a charge which is clearly 17 protected . . . and threatening to file a charge." Gifford v. Atchison, Topeka, & Santa Fe Ry. Co., 685 18 F.2d 1149, 1155-56 n.3 (9th Cir. 1982). The "conduct" which is protected in the context of both the 19 pursuit of litigation and the grievance procedures is the First Amendment right to petition for redress. 20 The Court finds the "protected activity" element of a retaliation claim is essentially undisputed and is 21 supported by the evidentiary record. 22 b. Adverse Action And Injury Elements 23 Defendants argue the alleged assault and battery, cell search, and property confiscation and 24 destruction do not satisfy the "adverse action" element of a retaliation claim. They argue summary 25 adjudication of Uribe's First Amendment claim is "appropriate because, as a matter of law, Plaintiff's 26 claimed adverse actions are not of sufficient severity to be considered clearly adverse," resulting in a 27 failure "to demonstrate a triable issue of fact on the essential element of harm." (Dkt No. 71-2, 5:13-15.) 28 They summarize as follows: 18 E.D. California 1:08cv1285-DMS(NLS) 1 An adverse action is defined as one which would chill or silence a person of ordinary firmness from future First Amendment activities or cause the prisoner to suffer more than minimal harm. Rhodes, 408 F.3d at 567-68, n. 11. Plaintiff's cognizable allegations of adverse actions are the alleged assault and battery, cell search, and confiscation and destruction of his property on February 22, 2007. (CR 1 Statement of Claim ¶ 26.) Failing to respond to Plaintiff's demand that his legal mail be immediately processed is not an inherently adverse activity. 2 3 4 5 (Dkt No. 71-2, 4:16-21.) 6 Courts apply an objective standard to find a triable issue of fact on this issue. "[A] plaintiff does 7 not have to show that 'his speech was actually inhibited or suppressed,' but rather that the adverse action 8 at issue 'would chill or silence a person of ordinary firmness from future First Amendment activities.'" 9 Brodheim v. Cry, 584 F.3d 1262,1271 (9th Cir. 2009)(quoting Rhodes, 408 F.3d at 568-69 (to hold 10 otherwise "would be unjust" as it would "allow a defendant to escape liability for a First Amendment 11 violation merely because an unusually determined plaintiff persists in his protected activity")). Thus, 12 a viable "retaliation claim may assert an injury no more tangible than a chilling effect on First 13 Amendment rights." Brodheim, 584 F.3d at 1269-70 (quoting Gomez v. Vernon, 255 F.3d 1118, 1127 14 (9th Cir. 2001)). "[T]he mere threat of harm can be an adverse action, regardless of whether it is carried 15 out because the threat itself can have a chilling effect." Id. at 1270 (finding a genuine issue of material 16 fact whether the defendant prison official's hand-written warning message to the plaintiff that he should 17 be "careful" about what he writes and requests in his administrative grievances constituted an "adverse 18 action" because it intimated some form of punishment or other adverse action would follow from a 19 failure to comply with the warning); see also Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994)("a 20 threat of retaliation is sufficient injury if made in retaliation for an inmate's use of prison grievance 21 procedures"). 22 With respect to the delay in processing his legal mail action–a claim based upon allegations 23 Defendant McKesson told Uribe they did not have to accept his legal mail–Defendants represent 24 "Plaintiff demanded that his legal mail be immediately processed; that Plaintiff's legal mail was not 25 immediately processed because it was not time for legal mail; and that Plaintiff's legal mail was 26 eventually processed on February 22, 2007." (Dkt No. 71-2, 4:22-25 (citations to Undisputed Facts 27 document omitted).) However, the gravamen of Uribe's retaliation claim is not that his legal mail was 28 19 E.D. California 1:08cv1285-DMS(NLS) 1 rejected to his judicial detriment, but rather that he suffered threats and adverse punitive responses from 2 Defendants for his attempts to exercise his First Amendment rights to have that mail accepted for 3 processing. Moreover, the Court notes in passing that Defendants' representation "it was not time for 4 legal mail" when Uribe first presented himself at the office at 3:00 p.m. is actually a disputed fact, with 5 Uribe declaring "there is no set time for sending out legal mail," Defendants McKesson, Martinez, and 6 Zaragosa were in the office talking with the door closed, and, as substantiated in Defendant Martinez's 7 interrogatory responses, inmates are allowed to knock at the office door. (Dkt No. 81, Exh. G, p. 68.) 8 Uribe further disputes Defendants' representation he "demanded" that his legal mail "be immediately 9 processed." (Uribe Decl., Dkt No. 81, ¶ 4.) 10 In addition, Defendants purport to support their arguments with cases which in fact support a 11 conclusion opposite to that for which they are offered. For example, Defendants cite Rhodes, 408 F.3d 12 559. (Dkt No. 71-2, 5:3-6.) 13 14 15 16 In Rhodes itself, we made this clear [i.e., that assertion of an injury no more tangible than a chilling effect on First Amendment rights can sustain a retaliation claim] by noting that an allegation that a person of ordinary firmness would have been chilled is sufficient to state a retaliation claim, and that, "since harm that is more than minimal will almost always have a chilling effect[, a]lleging harm and alleging the chilling effect would seem under the circumstances to be no more than a nicety. 17 Brodheim, 584 F.3d at 1270, 1271 ("The power of a threat lies not in any negative actions eventually 18 taken, but in the apprehension it creates in the recipient of the threat"). 19 Uribe expressly alleges both actual and threatened harm. He alleges actual harm in the form of 20 an assault and battery with the door associated with the rejection of his second tender of legal mail for 21 processing, Defendants' acceptance of his legal papers on his third attempt to present them only after 22 Uribe manifested his intent to complain about the officers' conduct to their sergeant, and a cell search 23 and personal property confiscation immediately following these incidents. He alleges threatened harm 24 in the form, among others, of allegations Defendant McKesson told him the cell search and property 25 confiscation were what Uribe could expect for telling him how to do his job, and a threat to escort him 26 to the sergeant's office in handcuffs to report Uribe was trying to escape. Uribe supports those 27 allegations with his own Declaration and those of three other inmate witnesses, including one who states 28 20 E.D. California 1:08cv1285-DMS(NLS) 1 he decided not to file his own legal mail after witnessing what happened to Uribe. (Solano Decl., Dkt 2 No. 84, 3:21-23 ("After watching all this transpire, I chose not to send out my legal mail because I feared 3 I would be subjected to the same retal[]iation, intimidation, and disrespect that plaintiff was subjected 4 to.").) 5 On the alleged assault and battery adverse action issue, Defendants dispute that Martinez 6 slammed the office door on Uribe's foot and "den[y] causing him any physical injury, pain, or suffering," 7 contrary to Uribe's Complaint allegations. They contend they are entitled to summary judgment with 8 respect to that alleged conduct "because no reasonable juror could find that Plaintiff actually suffered 9 an assault and battery." (Dkt No. 71-2, 5:18-23.) However, Uribe supports his Complaint allegations 10 not only with his own Declaration, but also with the sworn Declarations of inmates Victor Solano and 11 Carlos Quiroz. They declare, respectively, they saw Martinez "attempt to slam the door in plaintiff's face 12 but caught his foot first" (Dkt No. 84, 3:1-6) and saw him "quickly tr[y] to slam the door closed while 13 Uribe was still in the door way," seeing "Uribe move back with his upper body but his right leg or foot 14 was hit by the door." (Dkt No. 82, 2:12-15.) In addition, Uribe's cellmate, Fernando Monges, declares 15 he saw Uribe massage his right foot after the cell search was over, saw the skin behind his big toe was 16 red, and was told by Uribe that officer Martinez had slammed the door on it. (Dkt No. 83, 3:12-16.) In 17 their Reply to Uribe's Opposition, Defendants doggedly insist "the record shows that there was no assault 18 and battery" without addressing Uribe's evidence. (Dkt No. 88, 2:13.) They merely repeat the general 19 proposition, inapplicable to the state of the record on this issue, "[w]hen opposing parties tell two 20 different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could 21 believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for 22 summary judgment," again citing Scott, 550 U.S. at 380. (Id. at 2:10-13.) The Court must consider the 23 evidence presented by both sides to determine whether it creates a genuine issue for trial. Anderson, 477 24 U.S. at 255. Viewing all the evidence presented, and construing the facts in the light most favorable to 25 the non-moving party, the Court finds a trier of fact must resolve the assault and battery question. 26 On the allegedly retaliatory cell search adverse action issue, Defendants represent it "was a 27 permissible routine and random search that was not clearly adverse to Plaintiff." (Dkt No. 71-2, 6:19- 28 20.) There can be no dispute that routine cell searches conducted for the purpose of preserving 21 E.D. California 1:08cv1285-DMS(NLS) 1 institutional order, discipline, and security further those legitimate penological goals. See Hudson v. 2 Palmer, 468 U.S. 517, 529 (1984)("Random searches of inmates, individually or collectively, and their 3 cells and lockers are valid and necessary to ensure the security of the institution and the safety of inmates 4 and all others within its boundaries"). In reliance on Hudson, Defendants summarily contend "no 5 reasonable juror could find that the routine and random search of Plaintiff's cell on February 22, 2007, 6 was clearly adverse to him." (Dkt No. 71-2, 6:19-7:4, 9:2-28; see also Reply, Dkt No. 88, 2:26-3:4.) 7 However, their argument subsumes the ultimate adjudicative (and disputed) fact that the search at issue 8 actually was "routine and random" rather than in retaliation for Uribe's exercise of a constitutional right. 9 Uribe offers both circumstantial and direct evidence from which a reasonable trier of fact could conclude 10 Defendants were reacting punitively to his repeated attempts to deliver legal mail and his expressed 11 desire to speak with their supervising sergeant about their obstruction of his attempts to have his legal 12 mail processed. He declares Defendants immediately rose to follow him away from the prison office 13 to his cell after finally accepting his legal mail following two prior rejections. A disputed issue of fact 14 also exists as to whether Uribe's was the only cell searched on that date. Uribe claims so, McKesson 15 "thinks" he searched four or more cells (Dkt No. 81, Exh. H, p. 79), and the log record of cell searches 16 for the relevant period of time is unavailable. 17 Moreover, the resolution of disputed issues of material fact regarding the manner and duration 18 of the search and the alleged personal property confiscation and destruction will likely inform the 19 determination whether the search was retaliatory. Defendants posit, as if it were undisputed, the ultimate 20 adjudicative fact that the Uribe cell search that night was routine and random and conducted solely for 21 "contraband and disallowed items." (Dkt No. 71-2, 7:6-10.) Defendants also deny they left the cell in 22 the disarray Uribe alleges. McKesson states he does not recall exactly what items he removed from 23 Uribe's cell, but maintains "only contraband was confiscated" during the "routine search," not any 24 personal property. (Dkt No. 81, Exh. B, p. 19, Exh. C, p. 25.) Defendants rely on a copy of the February 25 22, 2007 Cell Search Receipt, listing as the confiscated items: "excess toilet supplies, excess sheets and 26 pillows, tennis shoes, altered television cable, glue, paper bags, paper clips, and dangerous razors." 27 (McKesson Decl. Attach. 1, Dkt No. 71-4, p. 6.) They characterize Uribe's contention the receipt 28 document is incomplete and "falsified" as "based on pure speculation and conjecture." (Dkt No. 88:6-8.) 22 E.D. California 1:08cv1285-DMS(NLS) 1 However, in their sworn Declarations, Uribe and his cellmate, Fernando Monges, identify specific items 2 of Uribe's personal property taken during the search they contend was not "contraband" or "excess", or 3 was not accounted for on the property receipt.8 (Dkt No. 81, 7:17-26.) 4 Uribe's cellmate substantiates Uribe's representations that when they were permitted to return to 5 their cell after about twenty minutes, Uribe's personal tennis shoes and hobby materials were missing. 6 (Dkt No. 83, 3:5-10.) He also declares he saw McKesson "still rummaging through our property" on the 7 way back to the cell. (Id. at 2:21-23.) "When I walked into the cell I saw most of Uribe's property in 8 shambles; everything was on the floor and it appeared to be stepped on[, w]hile in contrast, my property 9 was only slightly moved but left where it was found." (Id. at 3:2-4.) In their Reply, Defendants 10 summarily state "[i]n any event, the confiscation and deprivation of Plaintiff's personal property is at 11 most de minimus, and certainly not so egregious that a reasonable juror could find that such conduct was 12 clearly adverse to him." (Dkt No. 88, 3:9-11; see also Dkt No. 71-2, 7:17-19.) It appears to the Court 13 that if Uribe proves his allegations, reasonable jurors could find an unwarranted confiscation of a 14 prisoner's permissible personal property constitutes an action "clearly adverse" to the prisoner, however 15 meager the property or "de minimus" the deprivation may seem from the vantage point of free persons. 16 Finally, Uribe supports with evidence adequate to avoid summary judgment on the adverse action 17 and injury elements of his retaliation claim allegations that Defendants McKesson and Martinez 18 threatened him with harm in the course of the incidents. See Brodheim, 584 F.3d at 1270; see also 19 Burgess, 39 F.3d at 218 ("a threat of retaliation is sufficient injury if made in retaliation for an inmate's 20 use of prison grievance procedures"). 21 Here, defendant Mc[K]esson threatened plaintiff with falsely charging him with attempted escape by threatening to tell the sergeant that plaintiff was attempting to escape from the housing unit when in fact plaintiff was trying to exit the housing unit, with defendant Tuzon's knowledge, to report their actions to the sergeant. Uribe Decl. ¶ 9; Quiroz Decl. ¶ 8. Defendant Martinez also threatened plaintiff with additional punitive cell 22 23 24 25 26 27 28 8 "However, this receipt fails to show plaintiff's hobby materials, e.g. color pencils, color markers, and pastels, and his personal T-shirts and socks that Mc[K]esson also took that were not contraband. Uribe Decl. ¶ 13; Monges Decl. ¶ 8. And although it does show that plaintiff's tennis shoes and dominoes set were taken, it falsely claims they were contraband but fails to clearly state why or that the items were in fact plaintiff's authorized personal property, i.e. not state-issued or altered property and were not contraband. Uribe Decl. ¶ 13; Monges Decl. ¶ 8; and DUF, Mc[K]esson Decl. at attachment 1." (Dkt No. 79, 22:9-19.) 23 E.D. California 1:08cv1285-DMS(NLS) 1 2 searches if plaintiff continued or persisted in wanting to sent out legal mail to the courts. Uribe Decl. ¶ 11; Monges Decl. ¶ 5. As such, defendants' claims that plaintiff did not suffer any adverse action should be rejected. 3 (Dkt No. 79, 23:13-20; Dkt No. 81, ¶ 9.) 4 The cell search and property confiscation immediately followed. Uribe offers the Declaration 5 of inmate Solano, who watched the events giving rise to this action and decided thereafter not to send 6 out some legal mail he had intended to submit, to show "a person of ordinary firmness other than himself 7 was chilled by defendants' conduct against plaintiff." (Dkt No. 79, 27:18-22; Solano Decl. ¶ 10.) 8 Defendants summarily contend, again without regard to Uribe's proffered evidence, "[b]ecause 9 Plaintiff has failed to demonstrate a triable issue of fact on the essential element of harm, the absence 10 of adverse actions results in a failure to establish an essential element of his case–that the exercise of 11 his constitutional right was actually chilled or that he suffered more that minimal harm–summary 12 judgment is appropriate." (Dkt No. 71-2, 8:23-26.) The Court finds Uribe has produced sufficient 13 evidence to preclude summary adjudication of the "adverse action" element of his First Amendment 14 retaliation claim. The Court similarly finds a reasonable fact-finder could conclude the threat of future 15 cell searches and property confiscations should the inmate pursue legal filings or seek to complain to 16 supervising officers about Defendants' obstructionism would chill or silence a person of ordinary 17 firmness from pursuing those First Amendment activities, precluding summary adjudication of the injury 18 element as well. 19 c. Motivation Element 20 Uribe has the burden to show the exercise of his First Amendment rights was the "substantial" 21 or "motivating" factor behind Defendants' alleged misconduct in assaulting him, conducting an allegedly 22 retaliatory cell search, and allegedly confiscating and destroying his personal property. Rhodes, 408 F.3d 23 at 567-68; Brodheim, 548 F.3d at 1271; see Hartman v. Moore, 547 U.S. 250, 259 (2006)(a Section 1983 24 plaintiff "must show a causal connection between a Defendant's retaliatory animus and subsequent injury 25 in any sort of retaliatory action"); see also Pratt, 65 F.3d at 807. 26 Defendants argue Uribe's retaliation claims "must be dismissed because he has not alleged any 27 facts that would suggest a nexus between his First Amendment activity and the alleged retaliatory actions 28 24 E.D. California 1:08cv1285-DMS(NLS) 1 of Defendants Martinez, McKesson, Tuzon and Zaragoza." (Dkt No. 71-2, 8:4-6.) "While their acts 2 may have followed Plaintiff's First Amendment activity," retaliation "is not established by showing 3 adverse activity by Defendants after Plaintiff's protected activity." (Id. at 7:27-28, 8:6-7, (citing Huskey 4 v. San Jose, 204 F.3d 893, 899 (9th Cir. 2000)(retaliation claim cannot rest on "the logical fallacy of post 5 hoc, ergo propter hoc)).) They contend Uribe "only speculates that a retaliatory motive drove their 6 behavior," a premise that is "insufficient as a matter of law." (Id. at 8:6-8.) 7 However, in order to preserve a right to trial on this element of a retaliation claim, a plaintiff 8 need only "put forth evidence of retaliatory motive, that, taken in the light most favorable to him, 9 presents a genuine issue" as to the legitimacy of Defendants' intent. Brodheim, 584 F.3d at 1271 (citing 10 Bruce, 351 F.3d 1289). Without expressing any opinion on the ultimate merits, the Court finds Uribe's 11 Declaration in opposition to the Motion and the Declarations of three fellow prisoners who represent 12 they were percipient witnesses to material portions of Defendants' allegedly retaliatory conduct, the 13 contents of which are discussed above, satisfy the showing required to avoid summary judgment. Uribe 14 also quotes statements purportedly made by Martinez and McKesson from which, if believed, a 15 reasonable trier of fact could infer the decisions to search Uribe's cell, to confiscate his property, and the 16 foot jamming incident were motivated by retaliation for Uribe's persistence in attempting to file legal 17 papers and for his attempt to report Defendants' alleged obstructionist conduct to their supervising 18 sergeant. (Dkt Nos. 81-84.) 19 All the conduct giving rise to Uribe's First Amendment cause of action occurred at about 3:00 20 p.m. and sometime within the 7:00 p.m. hour on February 22, 2007. It is undisputed Defendants 21 accepted Uribe's legal mail "[o]nly after defendant J. Mc[K]esson was told by defendant Tuzon that 22 plaintiff was attempting to exit the housing unit to personally report their misconduct – another protected 23 activity–to their supervisor, the sergeant, did defendant J. Mc[K]esson decide to take plaintiff's legal 24 mail and sign it. . . ." (Dkt No. 79, 24:25-28.) From that fact, Uribe argues they "in turn decided to 25 punish plaintiff for his persistence in wanting to get his legal mail signed." (Id. at 24:28-25:1.) 26 "[T]iming can properly be considered as circumstantial evidence of retaliatory intent." Pratt, 65 F.3d 27 at 808; see also Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 (9th Cir. 1989)(certain types of 28 circumstantial evidence, such as the timing of events, may be probative of whether defendants acted with 25 E.D. California 1:08cv1285-DMS(NLS) 1 retaliatory intent). Uribe represents: "All three defendants immediately followed plaintiff to his cell and 2 proceeded to ransack it, illegally confiscate plaintiff's authorized personal property, and left his cell in 3 shambles" (Dkt No. 79, 25:1-3), supported by his Declaration and that of his cellmate. His cell was 4 searched by "at least two correctional officers and with partial assistance by a third for approximately 5 twenty minutes, as opposed to a routine cell search done by one officer per cell for an average of a five- 6 minute search." (Id. at 25:8-11; see Uribe Decl. ¶ 9; Solano Decl. ¶ 7; Quiroz Decl. ¶ 10; Monges Decl. 7 ¶ 7.) 8 Uribe produces additional evidence to support the causal connection element of his retaliation 9 claim, contrary to Defendants' representations, in the form of his witnesses' sworn statements that 10 "Mc[K]esson specifically told [Monges] that he was searching their cell because plaintiff insisted that 11 he sign and process his legal mail," that "Martinez also admitted that the punitive cell search was done 12 . . . because [Uribe] wanted to get his legal mail signed and processed . . . [and] that the cell search is 13 what happens to inmates like plaintiff who exercise their right to access the courts," going "so far as to 14 threaten plaintiff with additional punitive cell searches if plaintiff continued to request that his legal mail 15 be signed by them." (Dkt No. 79, 26:8-25 (citing Monges. Decl. ¶¶ 5-6, Solano Decl. 8, Uribe Decl. ¶ 16 11).) Uribe also argues reasonable inferences of retaliatory motive may be drawn from the evidence 17 most of the property searched, thrown on the floor, and stepped on was his, with his cellmate's property 18 being barely disturbed. (Dkt No. 79, 20:17-23; see Uribe Decl. ¶ 12; Monges Decl. ¶¶ 6-7.) The Court 19 concludes Uribe has carried his burden to raise triable issues of material fact on the motivation element 20 of his retaliation claim. 21 d. Legitimate Penological Goal Element 22 "The plaintiff bears the burden of pleading and proving the absence of legitimate correctional 23 goals for the conduct of which he complains." Pratt, 65 F.3d at 806 (citing, inter alia, Rizzo, 778 F.2d 24 at 532); see Bruce, 351 F.3d at 1288. Defendants again urge the Court to leap to an ultimate adjudicative 25 conclusion, inappropriate for this proceeding, and to grant summary judgment in their favor on the 26 ground "Plaintiff has failed to establish an essential element of his case–the absence of any legitimate 27 correctional goals–"for the cell search and deprivation of Uribe's personal property. (Dkt No. 71-2, 9:24- 28 27.) However, it is sufficient to avoid summary judgment for the plaintiff to produce evidence creating 26 E.D. California 1:08cv1285-DMS(NLS) 1 a triable issue of material fact on this element. Without deciding the merits of Uribe's First Amendment 2 retaliation claim, the Court finds its review of the evidence discussed above in connection with the other 3 essential elements forecloses summary adjudication of this element, as well. Uribe has carried his 4 evidentiary burden to create a genuine issue as to whether Defendants' alleged conduct was undertaken 5 in furtherance of legitimate penological objectives. For all the foregoing reasons, Defendants’ Motion 6 on this claim is DENIED. 7 F. 8 Defendants argue "Officers Martinez and Tuzon are entitled to summary judgment because they 9 did not personally participate in part or all of the allegedly retaliatory conduct of February 22, 2007." 10 11 12 13 14 15 16 17 18 19 20 Dismissal Of Defendants Martinez and Tuzon (Dkt No. 71-2 (emphasis removed).) Defendant Martinez is the officer Uribe alleges slammed the office door on his foot. Uribe declares: I heard J. Mc[K]esson tell J. Martinez to "slam the door on this stupid motherfucker [plaintiff]!" With my peripheral vision I saw the door thrown at me by J. Martinez – who was sitting behind the opened door – and I did get scared and shocked and reflexively cringed and jumped back but in the process my right foot was smashed between the door and door way. I did experience sudden stabbing pain on my right toe and toe knuckle behind the toe for several minutes and as I grimaced and pulled by foot out, J. Martinez fully closed the door . . . I was not only injured, but was also offended by having the door slammed in my face and hitting my foot instead. I respectfully requested that my legal mail be signed and sent out and then left and returned according to their instructions only to be met with hostility, profanity, contempt, intimidation and the injury to my person. (Uribe Decl., Dkt No. 81, ¶¶ 6-7.) 21 As that entire incident is disputed, and the Parties have produced conflicting evidence to support 22 their divergent versions of events, the dismissal of Defendant Martinez would not be appropriate in this 23 proceeding. In addition, it is undisputed Martinez accompanied Defendants McKesson and Zaragosa 24 when they followed Uribe back to his cell. While Martinez may not have physically entered Uribe's cell 25 or participated hands-on in the confiscation of his personal property, Uribe has produced sufficient 26 evidence that Martinez was present during the cell search, observed some portions of it, and may on that 27 basis be found to have participated personally in facilitating the search Uribe challenges as a retaliatory 28 adverse action. Furthermore, the Uribe, Monges, and Solano Declarations also substantiate Uribe's 27 E.D. California 1:08cv1285-DMS(NLS) 1 allegations that Defendant Martinez "threatened plaintiff with additional punitive cell searches if plaintiff 2 continued with requests to have his legal mail signed and sent out." (Dkt No. 79, 32:26-18; Uribe Decl. 3 ¶ 11; Monges Decl. ¶¶ 5-6; Solano Decl. ¶ 8.) The Court concludes summary judgment for Defendant 4 Martinez accordingly must be DENIED. 5 Officer Tuzon declares: "I did not personally participate in the alleged assault and battery, the 6 cell search, or the confiscation and destruction of Plaintiff's personal property." (Dkt No. 71-7, ¶ 9.) 7 Uribe's Declaration substantiates that Tuzon's only involvement in the conduct giving rise to this action 8 was to tell him to "go lock up" when he was attempting "to step out of the building to go talk to the 9 sergeant to get my legal mail signed because the floor officers were refusing to do it," to "close the grill 10 gate so I could not go speak to the sargeant," to tell "the other defendants of my attempt to exit the 11 housing unit to talk to the sergeant–their supervisor," and then to "open[] our cell door so the defendants 12 could search the cell." (Dkt No. 81, ¶¶ 8, 11.) 13 In his verified responses to Uribe's Interrogatories, Tuzon states, not inconsistently with Uribe's 14 version of the events, he opened Uribe's cell following the evening meal on February 22, 2007 because 15 the facility was not on lockdown, Uribe told him he had legal mail, and Defendant Tuzon told him to 16 go ahead and walk to the facility office. (Dkt No. 81, Exh. I, pp. 84-85.) Thereafter, Uribe went back 17 to his cell, changed into his dress blues, and wanted to leave his cell to go see the sergeant to ask him 18 to process his legal mail because the floor officers would not do it. While it is permissible for inmates 19 to report staff misconduct verbally to other correctional staff in addition to using the CDC 602 appeal 20 process (id. at p. 88), Tuzon told Uribe the sergeant was not going to process his legal mail because it 21 was not his job, and that the floor officers would process his legal mail during their shift. "Shortly 22 thereafter, one of the floor officers called plaintiff back into the E2 office to process his mail." (Id. at 23 pp. 85-87.) Tuzon's report to the floor officers must be reasonably construed as causing, not obstructing, 24 the ultimate acceptance of Uribe's legal mail as he desired, albeit allegedly not without further 25 intimidation and threats from the others, as discussed above. 26 Uribe has the burden to "set forth specific facts as to each individual defendant's" causal role in 27 the alleged constitutional violation. See Johnson, 588 F.2d at 743. The evidentiary record demonstrates 28 that Tuzon's involvement in the alleged interference with a protected activity was limited to ordering 28 E.D. California 1:08cv1285-DMS(NLS) 1 Uribe back to his cell when he attempted to leave the housing unit and then reporting to the floor officers 2 that Uribe had attempted to leave the housing unit for the purpose of talking to the sergeant about their 3 refusal to accept his legal papers. The totality of Tuzon's participation in the cell search incident was 4 to open the cell when the other officers asked him to do so. Uribe does not contend he had authorization 5 to "step out of the building" to follow the group of inmates released to attend a particular group meeting 6 when Officer Tuzon sent him back to his cell. He imputes the motive for Defendant Tuzon's calling him 7 back, supported only by speculation, was that he sought to prevent Uribe from speaking to the sergeant 8 in an effort to interfere with his rights to court access and to report other officers' violations of his rights. 9 "Sweeping conclusory allegations will not suffice to prevent summary judgment." Leer, 844 F.2d at 634. 10 Uribe also alleges "defendant Tuzon knew of the other defendants' conduct and failed to act to prevent 11 them and instead aided and abetted them and is therefore also liable for plaintiff's injuries" (Dkt No. 79, 12 30:25-27), and also argues by closing the grill gate and preventing him from "utilizing another 13 opportunity to get his legal mails signed and by ordering plaintiff to go back to his cell and lock it up," 14 Defendant Tuzon was "aiding defendants' conduct" (Id. at 31:11-13). 15 contentions do not provide any evidentiary support for a finding Defendant Tuzon personally 16 participated in a constitutional violation, as required for Section 1983 liability. Tuzon remained in the 17 control booth, over forty feet away from where Uribe and his cellmate were confined, while other of the 18 Defendants searched their cell, he did not witness the search itself, and he did not see Defendant 19 Martinez talking to Uribe or overhear what was said while he and his cellmate were in the shower 20 holding cell. (Dkt No. 81, Exh. I, p. 88.) However, his summary 21 The Court finds no evidence to support Uribe's claim Officer Tuzon personally participated in 22 the alleged assault with the office door or the cell search and property confiscation conduct. The Court 23 further finds no evidentiary basis for any reasonable inference Tuzon apprised the other correctional 24 officers on duty of Uribe's movements and intentions for an improper purpose. There is no evidence he 25 had any personal involvement in obstructing or chilling Uribe's access to the courts, and his refusal to 26 allow Uribe to leave the facility that night in the circumstances described cannot support a reasonable 27 finding the decision lacked a legitimate correctional goal. The Court finds no evidence to support 28 Uribe's claim Tuzon was personally involved in the alleged retaliatory acts in any manner that could 29 E.D. California 1:08cv1285-DMS(NLS) 1 satisfy all the elements of a First Amendment retaliation cause of action against him. See Rhodes, 408 2 F.3d at 567-68. Accordingly, Defendant Tuzon is GRANTED summary judgment in his favor. 3 III. CONCLUSION AND ORDER 4 For all the foregoing reasons, IT IS HEREBY ORDERED: 5 1. 6 7 Summary judgment is GRANTED as to Defendant Tuzon, and he is DISMISSED as a party to this action. 2. Defendants' Motion for dismissal of the pendant state law claims is GRANTED as a 8 matter of law on grounds those are barred by the six-month statute of limitation for initiating a lawsuit 9 following the State's rejection of the tort claims against these public employees pursuant to California 10 11 12 13 14 Government Code § 945.6(a)(1). 3. Defendants' Motion For Summary Judgment on the First Amendment claim is DENIED as to Defendants McKesson, Martinez, and Zaragosa. IT IS SO ORDERED. DATED: January 3, 2011 15 16 17 HON. DANA M. SABRAW United States District Judge 18 19 20 21 22 23 24 25 26 27 28 30 E.D. California 1:08cv1285-DMS(NLS)

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