-CKD (PC) Leyva v. Moreno et al, No. 2:2008cv00076 - Document 69 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/19/11 recommending that defendant's 04/28/11 motion for summary judgment 53 be granted; and plaintiff's 05/11/11 motion for witnesses at trial 55 be denied as moot. Motion for Summary Judgment 53 and MOTION for Witnesses at Trial 55 referred to Judge Lawrence K. Karlton. Objections due within 21 days. (Plummer, M)
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-CKD (PC) Leyva v. Moreno et al Doc. 69 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSEPH M. LEYVA, 11 Plaintiff, 12 vs. 13 No. CIV S-08-0076 LKK CKD P MORENO, et al., 14 Defendant. 15 16 FINDINGS & RECOMMENDATIONS / I. Introduction 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 18 seeking relief under 42 U.S.C. § 1983. This case proceeds on the original complaint filed 19 December 5, 2007 and transferred to this district on January 11, 2008. (Dkt. No. 1 (“Cmplt.”).) 20 Plaintiff claims that defendant Mandeville ordered plaintiff transferred to Pelican Bay State 21 Prison in retaliation for plaintiff’s exercise of his First Amendment Rights. (See Dkt. Nos. 28, 22 30 (dismissing other claims).) Pending before the court is defendant Mandeville’s April 28, 2011 23 motion for summary judgment. Plaintiff has filed an opposition, and defendant has filed a reply. 24 For the following reasons, the undersigned recommends that defendant’s motion be granted. 25 \\\\ 26 \\\\ 1 Dockets.Justia.com 1 2 II. Summary Judgment Standards Under Rule 56 Summary judgment is appropriate when it is demonstrated that there exists “no 3 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 4 matter of law.” Fed. R. Civ. P. 56(c). 5 6 7 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 8 9 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the 10 nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary 11 judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers 12 to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be entered, 13 after adequate time for discovery and upon motion, against a party who fails to make a showing 14 sufficient to establish the existence of an element essential to that party’s case, and on which that 15 party will bear the burden of proof at trial. See id. at 322. “[A] complete failure of proof 16 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 17 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 18 whatever is before the district court demonstrates that the standard for entry of summary 19 judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 20 If the moving party meets its initial responsibility, the burden then shifts to the 21 opposing party to establish that a genuine issue as to any material fact actually does exist. See 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 23 establish the existence of this factual dispute, the opposing party may not rely upon the 24 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 25 form of affidavits, and/or admissible discovery material, in support of its contention that the 26 dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party 2 1 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 2 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 3 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 4 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 5 return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 6 1436 (9th Cir. 1987). 7 In the endeavor to establish the existence of a factual dispute, the opposing party 8 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 9 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 10 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary 11 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 12 genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 13 committee’s note on 1963 amendments). 14 In resolving the summary judgment motion, the court examines the pleadings, 15 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 16 any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 17 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the 18 court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 19 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 20 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 21 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 22 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 23 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 24 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 25 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 26 \\\\ 3 1 On September 10, 2008, the court advised plaintiff of the requirements for 2 opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. 3 Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and 4 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 5 III. Discussion 6 A. Legal Standard 7 Plaintiff alleges that during a February 2004 classification hearing, defendant 8 Mandeville ignored his complaints about a prior improper disciplinary hearing and directed him 9 transferred to Pelican Bay State Prison in retaliation for those complaints. 10 To establish a First Amendment retaliation claim, plaintiff must show: (1) an 11 adverse action against him; (2) because of; (3) his protected conduct, and that such action; (4) 12 chilled his exercise of his First Amendment rights; and (5) the action did not reasonably advance 13 a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 14 Prisoners alleging retaliation claims must demonstrate that: (1) prison officials retaliated against 15 them for exercising their constitutional rights; and (2) the retaliation did not advance legitimate 16 penological interests, such as the preservation of institutional order, discipline, and security. 17 Barnett v. Centoni, 31 F.3d 813, 316 (9th Cir. 1994). Even if an inmate shows that the 18 defendants’ action was retaliatory, the inmate’s retaliation claim still fails unless he produces 19 significant probative evidence demonstrating that the retaliatory action did not advance a 20 legitimate penological interest. Id. at 815-16. “The plaintiff bears the burden of pleading and 21 proving the absence of legitimate correctional goals for the [retaliatory] conduct [at issue].” Pratt 22 v. Rowland, 65 F.3d 802, 806 (9th Cir.1995). 23 \\\\ 24 \\\\ 25 \\\\ 26 \\\\ 4 1 B. Factual Background 2 Plaintiff is serving a state prison term of 46 years to life for a 1997 conviction for 3 attempted murder. (Dkt. No. 53-4 (excerpts from plaintiff’s deposition) at 341.) The complaint 4 concerns events at California State Prison-Sacramento between April 2003 and January 2005, 5 when plaintiff was transferred to Pelican Bay State Prison. Plaintiff alleges that, on April 18, 6 20032, while waiting with a group of inmates (all identified by prison officials as Northern 7 Hispanic) to be escorted to his housing section, he was conversing with an inmate named 8 Sanchez when “Sanchez and plaintiff [were] unexpectedly attacked by two or three assailants.” 9 (Cmplt. at ¶¶ 1-7.) “While defending himself, plaintiff realized that the brunt of the assailants[’] 10 attack was directed at Sanchez. Upon realizing this plaintiff attempted to defend Sanchez.” (Id. 11 ¶ 8.) Plaintiff was handcuffed and escorted to a holding cell, and later correctional staff reported 12 that plaintiff had participated in the attack on Sanchez. (Id. at ¶¶ 9-13.) As a result, plaintiff 13 “was placed in administrative segregation and criminally prosecuted for the attempted murder of 14 Sanchez[.]” (Id. at ¶ 14.) The criminal charges against plaintiff were later dismissed. (Id. at ¶ 15 34.) 16 Following a September 15, 2003 disciplinary hearing at which he pled not guilty, 17 plaintiff was found guilty of attempting to murder Sanchez. (Id. at ¶¶ 22-26; see also Dkt. No. 58 18 at 33-35.) Plaintiff contends that he was denied due process of law at his disciplinary hearing 19 and was convicted based on “falsified” reports from prison staff. (Id. at ¶¶ 13-14, 16-26.) As a 20 result of his disciplinary conviction, he was assessed a 360-day loss of credits and placed in the 21 Administrative Segregation Unit from January 2004 to January 2005. (Id. at ¶¶ 26-27.) 22 On February 24, 2004, Plaintiff was seen by the prison classification committee. During this meeting Plaintiff once again 23 24 1 25 2 26 Record citations refer to page numbers assigned by the court’s docketing system. The complaint alleges that this incident occurred on April 19, 2003; however, documents attached to plaintiff’s opposition to summary judgment state that it occurred on April 18, 2003. (Dkt. No. 58 at, e.g., 49, 56-59.) 5 1 attempted to explain his innocence to the committee and relayed to them the due process violations committed during his [October 2003] 115 hearing. 2 3 R. Mandeville who headed this committee dismissed plaintiff’s allegations as irrelevant. Mandeville essentially explained to Plaintiff that he would find no sympathy from him or his staff that they were tired of playing games with the Northern Hispanics as a whole, and would continue to have them prosecuted and shipped to different prisons. He (Mandeville) called it ‘cleaning up house.’ Mandeville and the committee members decided Plaintiff would serve a 26 months SHU term, to be served at Pelican Bay State Prison. 4 5 6 7 8 . . . Mandeville stated that he was not concerned about any hardships Plaintiff might have, and that Plaintiff was leaving his prison. 9 10 ... 11 In January 2005, Plaintiff was transferred to Pelican Bay State Prison. 12 (Id. at ¶¶ 29-36.) 13 Plaintiff claims that his transfer to Pelican Bay was “committed in retaliation for 14 Plaintiff’s attempt to remove bias[ed] officers from his hearing and to vigorously defend the false 15 charges brought against him. These actions infringed on Plaintiff’s right to file or make prison 16 complaints and had a chilling effect on Plaintiff’s First Amendment rights.” (Id. at ¶ 45.) 17 C. Analysis 18 In moving for summary judgment, defendant argues that plaintiff has failed to 19 show a genuine factual dispute exists as to whether defendant retaliated against plaintiff for 20 protected First Amendment activity. 21 A key document, submitted by both plaintiff and defendant in their summary 22 judgment briefing, is a one-page report summarizing the February 25, 2004 classification 23 hearing. (Dkt. No. 53-5 at 9; Dkt. No. 58 at 49 (same) (“ICC report”).) Plaintiff acknowledged 24 in deposition testimony that the purpose of this hearing was to determine plaintiff’s Security 25 Housing Unit (SHU) term for attempted murder, not to revisit the September 2003 finding that 26 plaintiff was guilty of attempting to murder Sanchez. (Dkt. No. 53-4 at 8-10.) The hearing was 6 1 conducted by the Institutional Classification Committee (ICC), consisting of a chairman (Chief 2 Deputy Warden G. Stratton), Mandeville and two other prison officials, and recorder I. O’Brian. 3 (ICC report.) The hearing report stated that the committee 4 5 6 7 elects to: Retain in AD SEG pending transfer/MERD [minimum eligible release date]. . . . Assess and impose SHU term eff. 4/18/03, a 36 month aggravated determinate SHU term w/MERD of 7/18/05, RVR Log # C-03-04-049. Refer to CSR for SHU audit/transfer to PBSP-SHU/COR-SHU. RVR dated 4/18/03, Log # C-03-04-049, has been adjudicated and S was found guilty of Attempted Murder. . . . 8 9 This transfer recommendation is based on S’s active SHU term with MERD of 7/18/05. 10 ... 11 Aggravating factors: Yes, S’s prior disciplinary record includes acts of misconduct of the same or similar nature. Mitigating Factors: None. 12 13 (Id.) Thus, the ICC report indicates that the committee decided to impose a 36-month SHU term 14 based on plaintiff’s disciplinary conviction for attempted murder, aggravated by his prior 15 disciplinary record. 16 In deposition testimony, plaintiff acknowledged that, prior to the April 2003 17 incident concerning Sanchez, he received three Rule Violation Reports (RVRs), all resulting in 18 SHU terms. (Dkt. No. 53-4 at 31-34.) The RVRs were for possessing a weapon (a razor blade) in 19 1997 and three incidents of battery on an inmate in 1997 and 1998. (Id.; see also Dkt. No. 53-5 20 at 11-15 (RVR for July 22, 1998 battery).) A SHU term assessment worksheet filled out by I. 21 O’Brian (the recorder the ICC hearing) and signed on February 25, 2004 cites plaintiff’s 1998 22 battery on an inmate as “prior behavior of same or similar nature” as an aggravating factor 23 contributing to plaintiff’s three-year term in SHU. (Dkt. No. 53-5 at 17.) 24 The ICC report further indicates that the committee would “[r]efer to CSR” to 25 effect plaintiff’s transfer to either Pelican Bay or Corcoran State Prison. (ICC report.) In a 26 declaration attached to his motion for summary judgment, defendant states: “Because California 7 1 State Prison-Sacramento did not have a SHU, the ICC recommended to the Classification Staff 2 Representative (CSR) that Leyva be transferred to either Corcoran State Prison or Pelican Bay 3 State Prison for his SHU term. I did not order Leyva to be transferred to Pelican Bay State 4 Prison, nor did I have the power to do so. Transfers are ordered by the CSR. The CSR ordered 5 Leyva to be transferred to Pelican Bay State Prison for his SHU term.” (Dkt. No. 53-3 6 (“Mandeville Decl.”) at 2, ¶¶ 7-8.) 7 Based on the foregoing evidence, defendant argues that he and other members of 8 the ICC simply determined that plaintiff’s conviction for attempted murder, aggravated by 9 plaintiff’s disciplinary record, warranted a 36-month term in SHU, and recommended to a 10 Classification Staff Representative that plaintiff be transferred to either Pelican Bay State Prison 11 or Corcoran State Prison to serve out that term. (Dkt. No. 53-1 at 5-8.) 12 In his opposition to summary judgment, plaintiff emphasizes two points: first, that 13 he was wrongfully convicted for the attempted murder of inmate Sanchez in proceedings that 14 violated due process; second, that while defendant Mandeville knew in February 2004 that 15 plaintiff’s Central File contained “exonerating evidence,” defendant “chose to do nothing” and 16 “made no mention to the other I.C.C. members of the violations or his duty to rectify a 17 constitutional wrong.” (Dkt. No. 58 (“Opp.”) at 11.) Similarly, plaintiff contends that 18 defendant’s “duties as Chief Disciplinary Office Reviewer “ required him to “ensure inmates 19 rights are protected and rectify any wrong doing when such transpires. [Citation.] . . . Instead he 20 spearheaded the recommendation of transfer (knowing CSR would approve any recommendation 21 submitted by a ICC).” (Id. at 10.) Plaintiff submits as attachments his April 18, 2003 RVR for 22 the attack on Sanchez, documents concerning the investigation into whether plaintiff participated 23 in the attack, and documentation of the September 15, 2003 hearing at which plaintiff was found 24 guilty of attempted murder. (Dkt. No. 58 at 23-35.) He also submits a signed statement from 25 inmate Sambrana dated September 20, 2003 stating that plaintiff was “an innocent bystander” to 26 the attack on Sanchez. (Id. at 41.) Thus, plaintiff appears to argue that defendant “retaliated” 8 1 against him at the February 2004 classification hearing by refusing to revisit the question of 2 whether plaintiff’s disciplinary conviction for attempted murder was supported by sufficient 3 evidence; instead, defendant recommended that plaintiff be transferred to serve out the SHU term 4 his conviction warranted. 5 Drawing all reasonable inferences in plaintiff’s favor, this does not amount to a 6 First Amendment retaliation claim.3 Plaintiff has not shown that defendant recommended him 7 for an SHU term and/or transfer based on protected conduct, nor that defendant chilled plaintiff’s 8 exercise of his First Amendment rights. The ICC’s recommendation reasonably advanced a 9 legitimate correctional goal, given that plaintiff recently had been convicted of attempted murder 10 and had served prior SHU terms for battery on inmates. As to defendant’s alleged statements 11 that he and his staff “were tired of playing games with the Northern Hispanics” and would 12 continue to have them transferred as a way of “cleaning up house,” the Ninth Circuit has held 13 that “verbal harassment or abuse . . . is not sufficient to state a constitutional deprivation under 14 42 U.S. § 1983.” Oltarzewski v..Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Moreover, these 15 statements do not establish a genuine issue as to any material fact. The undersigned will 16 therefore recommend that defendant’s motion be granted. 17 Accordingly, IT IS HEREBY RECOMMENDED THAT: 18 1. Defendant’s April 28, 2011 motion for summary judgment (Dkt. No. 53) be 19 granted; and 20 21 2. Plaintiff’s May 11, 2011 motion for witnesses at trial (Dkt. No. 55) be denied as moot. 22 3 23 24 25 26 As to whether plaintiff’s attempted murder conviction was supported by sufficient evidence and/or entailed due process violations, that question is not before the court and does not appear cognizable in a § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 483-484 (1994) (requiring that prisoners first obtain reversal or expungement of disciplinary convictions via habeas petition or other means before challenging them in a civil rights action where success in the civil rights action would implicitly question the validity of the litigant’s conviction or the duration of his sentence). In deposition testimony, plaintiff acknowledged that his conviction has not been overturned by writ of habeas corpus. (Dkt. No. 53-4 at 14.) 9 1 These findings and recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 3 one days after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Such a document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 6 shall be served and filed within fourteen days after service of the objections. The parties are 7 advised that failure to file objections within the specified time may waive the right to appeal the 8 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 Dated: December 19, 2011 10 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 11 12 13 14 2 15 leyv0076.msj 16 17 18 19 20 21 22 23 24 25 26 10