(PC) Gay v. Shaffer et al, No. 3:2016cv05998 - Document 28 (N.D. Cal. 2018)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT, AND REFERRING CASE TO MAGISTRATE JUDGE FOR SETTLEMENT PROCEEDINGS by Judge Charles R. Breyer: Granting in part and denying in part 22 Motion for Summary Judgment. (lsS, COURT STAFF) (Filed on 5/4/2018)
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(PC) Gay v. Shaffer et al Doc. 28 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 OMAR SHARRIEFF GAY, E22575, 8 Plaintiff, 9 10 United States District Court Northern District of California 11 v. AMY PARSONS, et al., Defendant(s). 12 Case No. 16-cv-05998-CRB (PR) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND REFERRING CASE TO MAGISTRATE JUDGE FOR SETTLEMENT PROCEEDINGS (ECF No. 22) 13 14 Plaintiff, a prisoner at the California Men’s Colony (CMC) in San Luis Obispo, filed a 15 sworn and verified pro se complaint under 42 U.S.C. § 1983 alleging that in September 2015, 16 while he was incarcerated at the Correctional Training Facility (CTF) in Soledad, Board of Parole 17 Hearings (BPH) psychologists Amy Parsons and Gregory S. Goldstein interviewed him for a 18 psychological diagnostic evaluation in preparation for a subsequent parole suitability hearing and, 19 on account of his being African-American and Muslim, assessed him as high risk for future 20 violence in their report. Plaintiff claims this amounted to unlawful discrimination and retaliation. 21 Per order filed on June 28, 2017, the court found that plaintiff’s allegations, liberally 22 construed, appeared to state arguably cognizable claims under § 1983 for denial of equal 23 protection and for retaliation against defendants Parsons and Goldstein, and ordered the United 24 States Marshal to serve them. The court dismissed all other purported claims and defendants 25 under the authority of 28 U.S.C. § 1915A(b). 26 27 28 Defendants now move for summary judgment on the ground that there are no material facts in dispute and that they are entitled to judgment as a matter of law. They also claim that they are entitled to qualified immunity. Plaintiff has filed an opposition and defendants have filed a reply. Dockets.Justia.com BACKGROUND 1 2 The September 2015 risk assessment report prepared by Defendant Goldstein and reviewed by Defendant Parsons before plaintiff’s subsequent parole suitability hearing included a section 3 entitled “Assessment of Risk for Violence.” Compl. Ex. B (ECF No. 1-2) at 11. In that portion of 4 the report, defendants wrote that “Mr. Gay presents with several factors in the historical domain 5 which have been associated with future risk for violence.” Id. They noted that plaintiff had a 6 history of violent crime and other antisocial behavior that began at a young age, and increased in 7 severity until he was convicted in 1989 of the attempted murder of a police officer. According to 8 9 10 defendants, “Mr. Gay’s history of violence and other antisocial behavior are highly relevant risk factors for future violence.” Id. at 11-12. Plaintiff’s antisocial behavior included the following: Substance Abuse: The report notes that the records indicate that plaintiff’s substance abuse history involved the use of alcohol, marijuana and PCP. Plaintiff also was engaged in the United States District Court Northern District of California 11 selling narcotics and “associated violence related to that lifestyle.” Id. at 12. As a result, “Mr. 12 Gay’s history of substance use and his involvement in selling narcotics is a relevant factor in his 13 risk for future violence.” Id. 14 15 16 Negative Relationships and Violent Attitude: During his interview with defendants, plaintiff “noted that his father was involved in organized crime and acknowledged that his father extorted money from businesses in their area.” Id. He also explained that his father “instilled early in him that he should not accept the police’s authority, the government, or the rule of law.” Id. At 17 a young age, plaintiff sought out negative peers, became a gang member, pursued a criminal 18 lifestyle and engaged in ongoing violence. Plaintiff also made a targeted attack on a police officer 19 with the intent to commit murder. As a result, defendants concluded that plaintiff’s “history of 20 negative relationships and violent attitude, each present as highly significant factors in his risk for 21 future violence.” Id. History of Employment Problems: The report also noted that plaintiff did not have a 22 consistent work history as an adult in the community. Plaintiff “chose to forgo legitimate 23 employment and instead engaged in gang warfare and criminal behavior for financial gain.” Id. 24 And during his incarceration, plaintiff’s work history had not been especially strong. In 2013, 25 plaintiff received “Counseling Chronos” for “failure to report to work and not performing his 26 assigned task,” and in 2012, he was written up by correctional staff who suspected he was faking 27 an injury in order to avoid his work assignment. Id. According to defendants, plaintiff’s “choice 28 2 1 to forgo legitimate employment for criminal behavior and his history of employment problems while in prison present as highly relevant risk factors for future violence.” Id. 2 Defendants’ report also recounted that plaintiff, who attributed his behavior as a young 3 adult to his father’s teachings, was now a devout Muslim, “and has accepted Islamic law as his 4 moral compass, guiding his beliefs and actions.” Id. at 14. But according to defendants, plaintiff 5 did not “appear to have insight as to why he wholly embraced his father’s value system, Islamic 6 law, or any other system he chooses to embrace in the future.” Id. They added that plaintiff’s 7 8 “total commitment to whatever cause he sees fit in the future, and his lack of insight as to why he totally commits himself to that cause as he did on the day he committed the life crime, is a highly significant factor in Mr. Gay’s future risk for violence.” Id. 9 In the final section of the report, defendants concluded that “based upon an analysis of the presence and relevance of empirically supported risk factors, case formulation of risk, and 11 United States District Court Northern District of California 10 consideration of the inmate’s anticipated risk management needs if granted parole supervision 12 (i.e., intervention, monitoring), Mr. Gay represents a High risk for violence.” Id. at 16 (emphasis 13 14 in original). They noted that plaintiff had not programmed well during his incarceration and added the following observation: Overall, Mr. Gay has not spent a great deal of time while incarcerated attending self-help programming and his level of understanding of his antisocial personality characteristics which predispose him to violence is lacking. Furthermore, Mr. Gay’s continued oppositional attitude toward authority does not appear to be well contained and continues to be a highly relevant factor in his risk for future violence at this time. Lastly, Mr. Gay has not communicated an understanding of his total commitment to a particular belief system such as that of his father, his Islamic faith, or any other system he may adopt in the future. And this lack of understanding makes his susceptibility to possible negative influences unpredictable. 15 16 17 18 19 20 21 22 Id. / / 23 24 25 26 27 DISCUSSION A. Standard of Review Summary judgment is proper where the pleadings, discovery and affidavits show that there is “no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material 28 3 1 fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 2 The moving party for summary judgment bears the initial burden of identifying those 3 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 4 issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving 5 party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 6 reasonable trier of fact could find other than for the moving party. But on an issue for which the 7 8 9 opposing party will have the burden of proof at trial, [as is the case here,] the moving party need only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings to demonstrate the existence of a genuine dispute of material fact by “citing to specific parts of materials in the record” or “showing that the materials cited do not establish the absence 11 United States District Court Northern District of California 10 or presence of a genuine dispute.” Fed. R. Civ. P. 56(c). A triable dispute of material fact exists 12 only if there is sufficient evidence favoring the nonmoving party to allow a jury to return a verdict 13 14 15 for that party. Anderson, 477 U.S. at 249. If the nonmoving party fails to make this showing, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323. There is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249. If the 16 evidence is merely colorable, or is not significantly probative, summary judgment may be granted. 17 Id. at 249-50. 18 B. 19 20 Analysis Defendants argue that they are entitled to summary judgment and qualified immunity on plaintiff’s claims that defendants’ assessment of plaintiff as high risk for future violence amounted to denial of equal protection and to retaliation. Under Saucier v. Katz, 533 U.S. 194 (2001), the 21 court must undertake a two-step analysis when a defendant asserts qualified immunity in a motion 22 for summary judgment. The court first faces “this threshold question: Taken in the light most 23 favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated 24 a constitutional right?” 533 U.S. at 201. If the court determines that the conduct did not violate a 25 constitutional right, the inquiry is over and the officer is entitled to qualified immunity. 26 If the court determines that the conduct did violate a constitutional right, it then moves to the second step and asks “whether the right was clearly established” such that “it would be clear to 27 28 a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 201-02. Even if the violated right was clearly established, qualified immunity shields an officer from suit 4 1 when he makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances he confronted. Brosseau v. Haugen, 543 U.S. 194, 198 (2004); 2 3 Saucier, 533 U.S. at 205-06. If “the officer’s mistake as to what the law requires is reasonable . . . the officer is entitled to the immunity defense.” Id. at 205.1 4 1. “The Equal Protection Clause of the Fourteenth Amendment commands that no 5 6 7 8 9 Equal Protection State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). “Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citation omitted). They also are protected under the Equal Protection Clause from invidious 11 United States District Court Northern District of California 10 discrimination based on being an adherent of a minority religion. See Cruz v. Beto, 405 U.S. 319, 12 322 (1972). To state a claim under § 1983 for violation of the Equal Protection Clause, a prisoner 13 14 15 plaintiff must show that the defendants acted with an intent or purpose to discriminate against him based upon his membership in a protected class. Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). “Intentional discrimination 16 means that a defendant acted at least in part because of a plaintiff’s protected status.” Maynard v. 17 City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) (emphasis in original) (citation omitted). To 18 avoid summary judgment, a prisoner plaintiff must produce evidence sufficient to permit a 19 reasonable trier of fact to find by a preponderance of the evidence that the decision at issue was 20 motivated at least in part by his membership in a protected class. Serrano, 345 F.3d at 1082. Defendants argue that the September 2015 risk assessment report shows that plaintiff’s 21 status as an African-American Muslim did not impact their decision that plaintiff posed a high risk 22 for violence. They note that the report makes clear that they found plaintiff to be a high risk for 23 violence because plaintiff has a history of violence and antisocial behavior, and continues to 24 exhibit antisocial personality characteristics that predispose him to violence. Defendants did note 25 in the report that plaintiff’s father was a “‘Black Nationalist’ who considered himself a Muslim,” 26 27 28 Comp. Ex. B at 2, and that plaintiff reported that “he acted so violently because he devoted 1 Although the Saucier sequence is often appropriate and beneficial, it is not mandatory. A court may exercise its discretion in deciding which prong to address first, in light of the particular circumstances of each case. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). 5 1 himself completely to the internalized belief system instilled in him by his father,” id. at 14. But defendants’ expressed concern was not with plaintiff’s status as an African-American Muslim, but 2 rather with the fact that plaintiff “has not communicated an understanding of his total commitment 3 to a particular belief system such as that of his father, his Islamic faith, or any other system he may 4 adopt in the future. And this lack of understanding makes his susceptibility to possible negative 5 influences unpredictable.” Id. at 16. Under the facts presented in the September 2015 risk assessment report, no reasonable jury 6 7 could find that defendants’ decision that plaintiff posed a high risk for violence was motivated by plaintiff’s status as an African-American Muslim. See Anderson, 477 U.S. at 249. But plaintiff’s 8 9 detailed description of the psychological diagnostic evaluation and process that led to defendants’ decision is very different from that provided in the report. 10 In his sworn and verified complaint,2 plaintiff alleges that during the psychological United States District Court Northern District of California 11 diagnostic evaluation with defendants he “explained in detail his earliest childhood benefits, 12 introduction, and positive experiences and beliefs from his father’s Black Nationalistic and Pseudo 13 Islamic belief system.” Compl. ¶ 16. Plaintiff actually elaborated to Defendants, when asked, how 14 Plaintiff’s father was a member of a pro-Black Nationalist 15 organization having Pseudo-Islamic beliefs and practiced the social 16 and economic upliftment [sic] of African Americans through ‘Black 17 free enterprise, the establishment of Black-owned, Black-operated 18 businesses in the African American communities to the full 19 exclusion of the Jewish business monopoly in the African American communities at that time in the nineteen fifties and nineteen sixties. 20 21 Id. ¶ 80. But defendants responded angrily to his description of his community members by 22 referring to them as a “bunch of gorillas and thugs in suits and bow ties.” Id. ¶ 81. And in their 23 risk assessment report, they stated that plaintiff had “noted that his father was involved in 24 organized crime, and acknowledged that his father extorted money from businesses in their area. 25 Mr. Gay also explained that his father instilled early in him that he should not accept the police’s 26 2 27 28 A verified complaint may be treated as an opposing affidavit or declaration where, as here, plaintiff states under penalty of perjury that the allegations are true and correct, and the allegations are based on his personal knowledge. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn. 10-11 (9th Cir. 1995). 6 1 authority, the government, or the rule of law.” Id. Ex. B at 2. Plaintiff refutes this by alleging that 2 “at no time did Plaintiff report or acknowledge to said Defendants that Plaintiff’s father ‘was 3 involved in organized crime and extortion.’” Id. ¶ 82. Defendants “prejudicially changed lawful 4 economic ‘free enterprise’ by Black people into ‘organized crime’ and ‘extortion’ and ‘Black 5 Muslims’ into being ‘organized criminals.’” Id. ¶ 83. Plaintiff further alleges that defendants asked him “racially charged anti-Islamic” questions 6 and called him “racially charged anti-Islamic” names. Id. ¶ 17. At one point during the 7 evaluation, Defendant Parsons looked directly at plaintiff and said, “‘talk about radical Black Islamic terrorist.’” Id. ¶¶ 20, 21. At another point during the evaluation, Defendant Goldstein said, 9 “‘with everything going on in the world, at home with Moslems, we don’t know if you are just 10 another radical Islamic terrorist.” Id. ¶ 14. Goldstein added, “‘Parsons and I are just trying to 11 United States District Court Northern District of California 8 understand in your own words a little about your history as a Moslem, who are you today? What 12 particular ideology do you follow? Malcolm X? Luis Farrakhan? Osama Bin Laden? Who are you today?’” Id. ¶ 15. And when plaintiff noted that he had “self-esteem not conceit” in response to a 13 14 question about whether he thought highly of himself, id. ¶ 23, Goldstein asked, “‘is that the sort of teachings you learned from those criminals and Black Nationals growing up as a child?” id. ¶ 24. 15 Plaintiff objected to the characterization of Black Nationalists as criminals, but Goldstein 16 continued, “‘I bet they taught you a lot of that militant garbage and nonsense like Black Power, 17 Black Pride, smashing up Jewish liquor stores, huh?” Id. ¶ 27. 18 19 20 Viewing the evidence in the light most favorable to plaintiff as the nonmoving party, plaintiff has alleged sufficient facts to permit a reasonable trier of fact to find by a preponderance of the evidence that defendants’ decision that he posed a high risk for violence was motivated at least in part by his status as an African-American Muslim. Although defendants point to various 21 permissible findings and observations in support of their decision, the fact remains that plaintiff 22 has alleged under penalty of perjury that defendants made specific, racially and anti-Islamic tinged 23 remarks during the evaluation, and this is sufficient evidence of discriminatory intent to create a 24 genuine issue of material fact as to whether defendants’ actions violated the Equal Protection 25 Clause. See Serrano, 345 F.3d at 1082-83 (prisoner’s declaration that hearing officer made specific racial comments at disciplinary hearing in response to prisoner’s own infusion of race into 26 27 the hearing – specifically, hearing officer remarked that he “[didn’t] know how black people think” and that “he was treating [prisoner] like all the rest . . . and that [prisoner] was ‘not O.J. 28 7 1 Simpson or Johnnie Chocran’” – was enough to create a triable issue of fact on prisoner’s § 1983 claim that decision not to allow live witness testimony at hearing was racially motivated). 2 Defendants are not entitled to summary judgment on plaintiff’s equal protection claim. 3 See id. at 1083. Nor are they entitled to qualified immunity at this stage in the proceedings. 4 Whether defendants may be said to have made a “reasonable mistake” of fact or law entitling them 5 to qualified immunity, Saucier v. Katz, 533 U.S. 194, 205 (2001), will depend on the resolution of 6 disputed facts and the inferences that may be drawn therefrom. See Santos v. Gates, 287 F.3d 7 8 9 846, 855 n.12 (9th Cir. 2002). 2. Retaliation To prevail on a First Amendment retaliation claim, a prisoner must show: (1) that a state actor took some adverse action against a prisoner (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the prisoner’s exercise of his First Amendment rights, and 11 United States District Court Northern District of California 10 (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 12 F.3d 559, 567-68 (9th Cir. 2005). The prisoner must prove all the elements of a retaliation claim, 13 14 15 including the absence of legitimate correctional goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). Plaintiff does not. Plaintiff claims that defendants decided that he posed a high risk for violence in retaliation for his status as an African-American Muslim. But this is a reiteration of plaintiff’s equal 16 protection claim rather than a stand-alone First Amendment retaliation claim. To be sure, it is well 17 established in this circuit that the right to equal protection includes the right not to be retaliated 18 against because of the protected status of the person to whom one offers assistance with the filing 19 of a grievance or complaint. See Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) 20 (noting that jury instructions correctly explained that right to equal protection of the laws includes right not to be subjected to retaliation because one offers assistance to a Black person). In order to 21 prove such an equal protection violation, a plaintiff must show that the individual defendants 22 retaliated against him at least in part because of the protected status of the person to whom 23 plaintiff offered assistance with the filing of a grievance or complaint. See id. at 1404-05 (jury 24 verdict for white plaintiff on equal protection claim under § 1983 reversed where there was no 25 evidence that defendants retaliated against plaintiff because he assisted Black job applicant who 26 was passed over for job). But plaintiff makes no such claim, let alone such showing. Nor does plaintiff set forth any evidence showing all the elements of a First Amendment retaliation claim. 27 See Rhodes, 408 F.3d at 567-68; Pratt, 65 F.3d at 806. 28 8 Defend dants are enti itled to summ mary judgme and qual ent lified immun on plaint nity tiff’s 1 reta aliation claim See Celo Corp., 477 U.S. at 3 m. otex 4 323; Saucier, 533 U.S. at 201. , t 2 3 / / 4 5 CONCLU USION For the foregoing re easons, defendants’ mot tion for summ mary judgm (ECF No 22) is ment o. 6 GR RANTED IN PART and DENIED IN PART. De N N efendants ar entitled to summary ju re udgment and d 7 qua alified immu unity on plaintiff’s retaliation claim, but are not entitled to su ummary jud dgment or 8 9 10 United States District Court Northern District of California 11 qua alified immu unity on plaintiff’s equal protection c l claim at this stage in the proceeding s e gs. The cou finds that referral of this case to a magistrate judge for se urt t t ettlement pro oceedings is in order and he o ereby REFER this matter to Magist RS trate Judge Illman for settlement pro oceedings. All other proce l eedings are stayed. s A settle ement confer rence shall ta place wi ake ithin 90 days of the date of this orde or as soon s e er, n 12 the ereafter as is convenient to Magistrat Judge Illm te man’s calend dar. Magistr Judge Ill rate lman shall 13 coo ordinate a tim and date for the conf me ference with all intereste parties and their rep ed d/or presentatives s 14 15 and within ten (10) days after the conc d, n clusion of th conference file a repo regarding the he e, ort g con nference. The cle shall prov a copy of this order to Magistra Judge Illm erk vide o r ate man. 16 IT IS SO ORDER S RED. 17 Da ated: May 4, 2018 18 19 20 ___ __________ ___________ __________ ________ CH HARLES R. BREYER Un nited States D District Judg ge 21 22 23 24 25 26 27 28 9 1 2 3 4 UNITED STATES D D DISTRICT C COURT 5 NORTHER DISTRIC OF CALI RN CT IFORNIA 6 7 OMAR SHAR O RRIEFF GA AY, Case No. 3 3:16-cv-0599 98-CRB Plaintiff, 8 v. CERTIFIC CATE OF S SERVICE 9 10 AMY PARSO A ONS, et al., Defendants s. United States District Court Northern District of California 11 12 13 I, the un ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S. ee ice Dis strict Court, Northern Di istrict of Cal lifornia. 14 15 16 17 18 That on May 4, 201 I SERVE a true and correct cop n 18, ED d py(ies) of the attached, b placing by said copy(ies) in a postage paid envelo addressed to the pers i ope d son(s) herein nafter listed, by dep positing said envelope in the U.S. Mail, or by pla d n M acing said co opy(ies) into an inter-off delivery o ffice y rec ceptacle loca in the Cl ated lerk's office. . 19 20 21 Om Sharrieff Gay ID: Emar f -22575 California Men Colony - West II ns' San Luis Obisp CA 9340 n po, 09 22 23 24 25 26 27 Da ated: May 4, 2018 Su usan Y. Soon ng Cl lerk, United States Distr Court d rict By y:_________ ___________ _______ La ashanda Sco Deputy C ott, Clerk to the H Honorable CH HARLES R. BREYER 28 10 0
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