Giles v. Davis et al, No. 4:2018cv07466 - Document 30 (N.D. Cal. 2021)

Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re 21 MOTION for Summary Judgment filed by M. Voong, F. Jaugan, Y. Samara, R. Pearl, J. Cartwright, J. Arnold, A. Maxfield, B. VanMastrigt, J. Sangmaster, R. Shelton, G. Forncrook, R. Bloomfield. Signed by Judge Yvonne Gonzalez Rogers on 3/1/2021. ***Civil Case Terminated. (kcS, COURT STAFF) (Filed on 3/1/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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Giles v. Davis et al Doc. 30 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 1 of 23 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 OSSIE GILES, Case No. 18-cv-07466-YGR (PR) Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 5 v. 6 7 G. FORNCROOK, et al., Defendants. 8 9 United States District Court Northern District of California 10 I. INTRODUCTION Plaintiff, a state prisoner currently incarcerated at San Quentin State Prison (“SQSP”), 11 filed a pro se civil rights action pursuant to 42 U.S.C. § 1983. Dkt. 1. He seeks monetary 12 damages. Id. at 3.1 13 In its July 15, 2019 Order of Partial Dismissal and Service, the Court found Plaintiff’s 14 complaint stated cognizable Eighth and First Amendment violations against the following 15 Defendants at SQSP: Associate Wardens G. Forncrook and R. Broomfield2; Captain J. Arnold; 16 Lieutenants B. VanMastrigt and R. Shelton; Sergeants J. Sangmaster; Correctional Counselor II A. 17 Maxfield; Chief Disciplinary Officer Y. Samara; Correctional Officers F. Jaugan, and J. 18 Cartwright; Office of Appeals Chief M. Voong; and Psychologist R. Pearl (hereinafter 19 “Defendants”).3 Dkt. 6 at 2-4. 20 The parties are presently before the Court on Defendants’ motion for summary judgment. 21 22 23 24 25 26 27 28 1 Page number citations refer to those assigned by the Court’s electronic case management filing system and not those assigned by the parties. In his complaint, Plaintiff misspelled Defendant Broomfield’s last name as “Bloomfield.” Dkt. 1 at 2. The Court has since been informed that the correct spelling is “Broomfield.” Dkt. 10 at 2. 2 In its July 15, 2019 Order, the Court dismissed Plaintiff’s access to the courts claim against Defendant Sergeant Madding and the supervisory liability claim against Defendant Warden Ron Davis. Dkt. 6 at 4-5. The Court had also found a cognizable First Amendment claim for denial of access to established grievance procedures against Defendant Lieutenant M. Nelson. Id. at 4. However, on March 3, 2020, pursuant to a stipulation by the parties, the Court dismissed Plaintiff’s claims against Defendant Nelson. Dkt. 20. 3 Dockets.Justia.com Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 2 of 23 1 In their motion, Defendants contend that Plaintiff failed to exhaust his administrative remedies 2 under the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a), as to Plaintiff’s 3 First Amendment claims against Defendants Voong and Broomfield, and that they are entitled to 4 judgment as a matter of law as to the remaining claims. In the alternative, Defendants argue they 5 are entitled to qualified immunity. Plaintiff has filed an opposition to Defendants’ motion, and 6 Defendants have filed a reply. Dkts. 26, 28. Having read and considered the papers submitted and 7 being fully informed, the Court hereby GRANTS Defendants’ motion for summary judgment. 8 II. 9 A. United States District Court Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Factual Background The following background of Plaintiff’s claims is taken from the Court’s July 15, 2019 10 11 BACKGROUND Order: Plaintiff claims that on November 13, 2017, he filed a 602 inmate appeal, log no. SQ-A-17-3257, against Defendant Cartwright for “disrespect and defamation [by] calling Plaintiff a pedophil[e]” during a confrontation on November 8, 2017. Dkt. 1 at 8. Plaintiff claims that he exhausted this appeal to the third level of review, and that his appeals were “denied.” Id. at 8-14. Plaintiff claims that eight days after the confrontation, on November 16, 2017, he was placed in administrative segregation (“ad seg”) by Defendants VanMastrigt as well as Classification Committee members Defendants Forncrook and Maxfield “pending a [Rules Violation Report (“RVR”)] 115 outcome written by [Defendant] Cartwright whos[e] description of the incident was [en]titled [‘]force or violence threatening a peace officer[’] [and] also [alleged] a pattern of blatant disrespect towards him on multiple occasions [including] 6-23-2017, 7-12-2017, 7-27-2017 and 9-16-2017.” Id. at 6, 15-18. Plaintiff claims that there was “no documentation of these accusations . . . .” Id. at 15-18. Plaintiff claims that the charges on the RVR were “false.” Id. at 17. Plaintiff adds that Defendant Jaugan filed a “false supplemental report” to the RVR. Id. at 6, 17. Plaintiff indicates that Defendant Sangmaster approved both the RVR and supplemental reports, and that Defendant Arnold requested a mental health assessment. Id. at 30. Plaintiff claims that he had never been placed in ad seg during the thirty-one years he has been incarcerated. Id. at 23. On November 29, 2017, Plaintiff claims that Defendant Pearl, an SQSP psychologist, conducted an “RVR mental health assessment of Plaintiff,” and indicated that he “is adjusting with no significant psychiatric distress and if Plaintiff is found guilty [of the RVR] there are no apparent mental health factors or functioning deficits that should be consider[ed] when assessing a [Secure Housing Unit] term.” Id. at 19. In contrast, Plaintiff claims that he “ask[ed] for increases in both his medications” due to his “anxiety” and sleep 2 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 3 of 23 deprivations from being housed in ad seg. Id. at 26. 1 At Plaintiff’s December 4, 2017 disciplinary hearing, Defendant Shelton, the hearing official, found Plaintiff “guilty as charged based on a preponderance of evidence using [Defendant] Cartwright’s report RVR 115.” Id. at 29. Plaintiff claims that Defendant Shelton did not take into account Plaintiff’s “RVR supplemental witness report” or his “other witness statements [by] [Correctional Officers] M. Martinez [and] N. Faghirzaden [and] inmate’s statements.” Id. at 40. On December 5, 2017, Defendant Samara, as Chief Disciplinary Officer, affirmed the December 4, 2017 hearing results. Id. at 37-39. Plaintiff appealed the guilty finding at the Defendant 4, 2017 hearing, and pursued this appeal to the final level of appeal where it was denied. Id. at 43. 2 3 4 5 6 7 8 Plaintiff claims that based on the aforementioned actions, Defendants participated in “violation [his] First and Eight[h] Amendment [rights], which protects [him] against retaliation for filing a grievance and cruel and unusual punishment.” Id. at 7. Plaintiff adds that “[e]ach named supervisor[] had all relevant evidentiary documents available to them, which clearly shows retaliation, but they chose to ignore these documents and move forward with this illegal [ad seg] admittance of Plaintiff.” Id. 9 10 United States District Court Northern District of California 11 12 Dkt. 6 at 2-3. 13 14 B. The Court’s Initial Review of Complaint In its July 15, 2019 Order, the Court found “[w]hen liberally construed, Plaintiff’s 15 complaint state[d] a cognizable First Amendment and Eighth Amendment claims against 16 Defendants Cartwright and Jaugan for authoring false RVR and supplemental reports, 17 respectively, and for causing Plaintiff’s removal from his housing and placement into ad seg” for 18 forty-four days from November 15, 2017 through December 28, 2017. Id. at 3. The Court further 19 determined that the complaint stated “a cognizable claim against Defendants VanMastrigt, 20 Forncrook, Maxfield, Pearl, Sangmaster, Arnold, Shelton, and Samara for the violation of 21 Plaintiff’s right to due process insofar as he was removed from his housing and placed into ad seg 22 without evidentiary support, and for a violation of his First Amendment rights insofar as they were 23 involved in failing to rectify or correct the false RVR.” Id. Lastly, the Court found that the 24 allegations against Defendants Broomfield and Voong stated a cognizable First Amendment claim 25 for denial of access to established grievance procedures. Id. at 4. 26 27 C. Plaintiff’s Deposition Testimony During his deposition, Plaintiff stated that he never filed an administrative grievance in 28 3 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 4 of 23 1 connection with his claim that Defendants Broomfield and Voong denied him access to 2 established grievance procedures in violation of the First Amendment. Quinn Decl., Ex. A at 3 32:7-18. United States District Court Northern District of California 4 In discussing his retaliation claim, Plaintiff testified in his deposition that Defendants 5 Arnold, Sangmaster, Samara, Shelton, Pearl, Maxfield, Forncrook, and VanMastrigt retaliated 6 against him because they could have released him from ad seg but failed to do so. Id. at 22:12- 7 23:3; 28:23-29:4. According to Plaintiff, Defendant Cartwright retaliated against him by 8 “falsifying a document [i.e., the RVR] that led to [his] removal from GP [general population] and 9 place[ment] in [ad seg].” Id. at 33:2-4. Plaintiff added that Defendant Jaugan retaliated against 10 him by preparing a supplemental rules violation report that contained lies and “bolster[ed]” 11 Defendant Cartwright’s RVR. Id. at 29:8-25, 31:11-32:1. Plaintiff claimed that the Defendants 12 named above “could have stopped” his placement in ad seg, but “they stuck together on . . . 13 something that’s not the truth [Cartwright’s RVR].” Id. at 22:12-23:3. Plaintiff claimed that 14 many of the aforementioned Defendants did not communicate with him about the November 13, 15 2017 grievance against Defendant Cartwright. Id. at 18:10-11 (Defendant Pearl); 23:4-7 16 (Defendant Samara); 31:9-17, 32:2-6 (Defendant Jaugun); 33:5-15 (Defendant Cartwright). 17 Plaintiff further claimed that some of the remaining Defendants did not communicate with him 18 outside of their decisions relating to his placement in ad seg. Id. at 23:18-24 (Defendant 19 Sangmaster); 28:1-10 (Defendant Arnold). 20 Finally, Plaintiff confirmed that he never mentioned that he suffered from anxiety, sleep 21 deprivation, or any other “psychological or mental health issue that [he was] having in the ad seg” 22 to Defendant Pearl, an SQSP psychologist, on November 29, 2017, after he was moved to ad seg. 23 Id. at 15:21-18:11. In fact, after being transferred to ad seg, he met with another psychologist, Dr. 24 Bachnick (a non-party), and reported that he had “some adaptation to the ad seg unit,” “denied any 25 changes in appetite or sleep,” and complained only of weight-loss due to lack of food in his cell. 26 Id. at 18:25-19:17. Plaintiff also made the following statement to Dr. Bachnick: “[N]ow that I got 27 my legal paperwork, I can work on it without distraction, so it’s probably a good thing.” Id. at 28 19:2-6, 44:11-19. 4 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 5 of 23 D. 1 Defendant Cartwright’s Declaration Defendant Cartwright, who worked as an SQSP correctional officer in 2017, claims that on 2 3 4 November 8, 2017, Plaintiff “made a number of threatening remarks to [Defendant Cartwright], such as, ‘You’re nothing by a coward, you fucking bitch,’ and ‘I’ll beat your ass when I get out of here.’” Cartwright Decl. ¶ 2. Defendant Cartwright claims that he was “sick from work on both 5 November 9, 2017 and November 10, 2017, and was then off work between November 11, 2017 6 7 8 9 10 United States District Court Northern District of California 11 12 and November 14, 2017.” Id. ¶ 3. He returned to work on November 15, 2017, and “prepared a[n] [RVR] concerning the November 8, 2017 incident.” Id. ¶¶ 3-4. Defendant Cartwright states that “[l]ater that morning, after the report had been submitted, [Plaintiff] was moved from the institution’s general population to ad seg because of the threatening remarks that he made to [Defendant Cartwright] during the incident.” Id. ¶ 4. Defendant Cartwright states that “[f]ollowing the December 4, 2017 hearing, [Plaintiff] was found guilty of threatening staff during the November 8, 2017 incident.” Id. ¶ 7. 13 14 15 Defendant Cartwright states that he “did not learn [Plaintiff] had filed an administrative grievances against [him] until weeks after the incident.” Id. ¶ 6. Defendant Cartwright also claims that he “had no knowledge of the grievance when [he] prepared the [RVR].” Id. 16 17 18 III. DISCUSSION A. Legal Standard Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment 19 on some or all of the claims or defenses presented in an action. Fed. R. Civ. P. 56(a)(1). “The 20 court shall grant summary judgment if the movant shows that there is no genuine dispute as to any 21 material fact and the movant is entitled to judgment as a matter of law.” Id.; see Anderson v. 22 Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of 23 establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 24 25 317, 323 (1986); Fed. R. Civ. P. 56(c)(1)(A) (requiring citation to “particular parts of materials in the record”). If the moving party meets this initial burden, the burden then shifts to the non- 26 moving party to present specific facts showing that there is a genuine issue for trial. See Celotex, 27 477 U.S. at 324; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 28 5 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 6 of 23 1 United States District Court Northern District of California 2 (1986). The failure to exhaust administrative remedies is an affirmative defense that must be raised 3 in a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en 4 banc). The defendants have the initial burden to prove “that there was an available administrative 5 remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172; Williams v. 6 Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). If the defendants carry that burden, “the burden 7 shifts to the prisoner to come forward with evidence showing that there is something in his 8 particular case that made the existing and generally available administrative remedies effectively 9 unavailable to him.” Albino, 747 F.3d at 1172. The ultimate burden of proof remains with 10 defendants, however. Id. “If material facts are disputed, summary judgment should be denied, 11 and the district judge rather than a jury should determine the facts.” Id. at 1166. 12 A district court may only consider admissible evidence in ruling on a motion for summary 13 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 14 Submitted by Defendant in support of the motion for summary judgment are declarations from 15 Defendant Cartwright (dkt. 28-1, Cartwright Decl.) and Defendants’ attorney, Deputy Attorney 16 General Michael Quinn (dkt. 21-1, Quinn Decl.), as well as Plaintiff’s deposition (id., Ex. A). 17 Meanwhile, Plaintiff has filed his verified complaint and attached exhibits. Dkt. 1. The Court will 18 construe this filing as an affidavit under Federal Rule of Civil Procedure 56, insofar as it is based 19 on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. 20 McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). However, Plaintiff has not verified his 21 opposition and declaration because he failed to sign them under penalty of perjury.4 Dkt. 26 at 25. 22 23 24 25 26 27 28 The Court notes that even if it considered Plaintiff’s allegations in his opposition to the extent such allegations are based on his personal knowledge and set forth specific facts admissible in evidence, see Schroeder, 55 F.3d at 460 & nn.10-11, the result would not change. Plaintiff’s opposition fails to address key arguments made by Defendants, including that: (1) authoring alleged false RVR reports does not violate the First and Eighth Amendments; (2) housing an inmate in ad seg for forty-four days does not amount to a violation of the Eighth Amendment; and (3) his First Amendment claim against Defendants Broomfield and Voong are unexhausted. See Dkt. 26. Further, even if Plaintiff’s unverified opposition seems to ignore his deposition testimony and alleges that Defendants retaliated against him for filing a grievance, id. at 9, the Court explains below that he still fails to show evidence that any of the Defendants expressed any animus towards Plaintiff or his history of filing administrative appeals, including the November 13, 2017 grievance against Defendant Cartwright, see DISCUSSION Part III.C.1. 6 4 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 7 of 23 1 2 B. Exhaustion Under the PLRA 1. Overview The PLRA amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with 3 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 4 confined in any jail, prison, or other correctional facility until such administrative remedies as are 5 6 7 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of all “available” remedies is mandatory; those remedies need not meet federal standards, nor must they be “plain, speedy, and effective.” Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739-40 8 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably 9 money damages, exhaustion is a prerequisite to suit. Booth, 532 U.S. at 741. A prisoner “seeking 10 only money damages must complete a prison administrative process that could provide some sort United States District Court Northern District of California 11 of relief on the complaint stated, but no money.” Id. at 734. 12 The PLRA requires proper exhaustion of administrative remedies. Woodford v. Ngo, 548 13 U.S. 81, 83 (2006). “Proper exhaustion demands compliance with an agency’s deadlines and 14 other critical procedural rules because no adjudicative system can function effectively without 15 imposing some orderly structure on the course of its proceedings.” Id. at 90-91. Thus, 16 compliance with prison grievance procedures is required by the PLRA to properly exhaust. Id. 17 18 The PLRA’s exhaustion requirement cannot be satisfied “by filing an untimely or otherwise procedurally defective administrative grievance or appeal.” Id. at 83. 19 The regulations that set out the features of the administrative remedies process for 20 California prisoners underwent a substantial restructuring in 2020.5 On March 25, 2020, and 21 effective June 1, 2020, California Code of Regulations Title 15, sections 3084 through 3084.9 22 were repealed and replaced with renumbered and amended provisions at sections 3480 through 23 3487. The regulations in effect for several years before June 1, 2020, provided CDCR inmates 24 and parolees the right to appeal administratively “any policy, decision, action, condition, or 25 omission by the department or its staff that the inmate or parolee can demonstrate as having a 26 27 28 5 As explained below, the relevant time-frame for Plaintiff’s claims is from November through December of 2017, therefore, the amended regulations from 2020 were not yet in effect. 7 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 8 of 23 1 material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, 2 § 3084.1(a) (repealed eff. June 1, 2020). Inmates also had the right to file administrative appeals 3 alleging misconduct by correctional officers. See id. United States District Court Northern District of California 4 From January 28, 2011,6 until June 1, 2020, the regulations provided a three-level system 5 for an inmate to exhaust administrative remedies: first level appeal, second level appeal, and third 6 level appeal. Cal. Code Regs. tit. 15, § 3084.7 (repealed eff. June 1, 2020). In order to exhaust 7 available administrative remedies within this system during November to December 2017, the 8 relevant time frame of Plaintiff’s claims, a prisoner must proceed through several levels of appeal: 9 (1) informal resolution, (2) formal written appeal on a CDCR 602 inmate appeal form (“602 10 appeal”), (3) second level appeal to the institution head or designee, and (4) third level appeal to 11 the Director of the CDCR (i.e., Director’s Level). See id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 12 1235, 1237 (S.D. Cal. 1997). This satisfies the administrative remedies exhaustion requirement 13 under § 1997e(a). See id. at 1237-38. 14 Here, Defendants contend that Plaintiff failed to properly exhaust his available 15 administrative remedies as to his First Amendment claim against Defendants Voong and 16 Broomfield. Dkt. 21 at 14. Specifically, in support of this argument, Defendant notes that during 17 Plaintiff’s deposition, “[Plaintiff] stated that he never filed an administrative grievance in 18 connection with his claim that Defendants Broomfield and Voong denied him access to 19 established grievance procedures in violation of the First Amendment.” Id. at 11 (Quinn Decl., 20 Ex. A, 32:7-18). 21 2. Analysis Relating to First Amendment Claim Against Defendants Broomfield and Voong 22 Although non-exhaustion under Section 1997e(a) is an affirmative defense, a prisoner’s 23 concession to non-exhaustion is a valid ground for dismissal. See Wyatt v. Terhune, 315 F.3d 24 1108, 1119-20 (9th Cir. 2003) (prisoner’s concession to non-exhaustion is valid ground for 25 26 27 28 6 The regulations pertaining to the inmate appeal process were initially amended effective January 28, 2011. Again, Plaintiff’s claims took place in 2017, which is after January 28, 2011. Therefore, the amended regulations effective from January 28, 2011 through June 1, 2020 were in effect and govern his grievances. 8 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 9 of 23 1 dismissal, as long as no exception to exhaustion applies), overruled on other grounds in Albino v. 2 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). Accordingly, a claim may be dismissed without 3 prejudice if it is clear from the record that the prisoner concedes that he did not exhaust 4 administrative remedies. See id. The Ninth Circuit has interpreted Section 1997e(a) to mean that 5 an action must be dismissed unless the prisoner exhausted his available administrative remedies 6 before he or she filed suit, even if the prisoner fully exhausts while the suit is pending. See 7 McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). 8 United States District Court Northern District of California 9 Here, the record shows that Plaintiff concedes that he did not exhaust his administrative remedies as to one of his First Amendment claims before filing the instant suit. During his 10 deposition, Plaintiff stated that he never filed an administrative grievance in connection with his 11 claim that Defendants Broomfield and Voong denied him access to established grievance 12 procedures in violation of the First Amendment. Quinn Decl., Ex. A, 32:7-18. Therefore, the 13 Court finds that Plaintiff has failed to exhaust his administrative remedies against Defendants 14 Broomfield and Voong as to Plaintiff’s First Amendment claim against them. The record in this 15 case demonstrates that Plaintiff had the opportunity and ability to properly exhaust this First 16 Amendment claim—but he concedes that he failed to do so. Accordingly, the Court GRANTS 17 Defendants’ motion for summary judgment as to his First Amendment claim Defendants 18 Broomfield and Voong, which is subject to dismissal without prejudice. See McKinney v. Carey, 19 311 F.3d 1198, 1200-01 (9th Cir. 2002) (proper course in claims dismissed due to failure to 20 exhaust administrative remedies is dismissal without prejudice to refiling). 21 22 23 C. Analysis of Remaining Claims 1. First Amendment Retaliation Claims As mentioned above, Plaintiff claims that Defendants retaliated against him for filing an 24 administrative grievance. “Within the prison context, a viable claim of First Amendment 25 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action 26 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 27 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 28 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 9 United States District Court Northern District of California Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 10 of 23 1 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) 2 (prisoner suing prison officials under section 1983 for retaliation must allege that he was retaliated 3 against for exercising his constitutional rights and that the retaliatory action did not advance 4 legitimate penological goals, such as preserving institutional order and discipline); Barnett v. 5 Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (same); Rizzo v. Dawson, 778 F.2d 527, 6 532 (9th Cir. 1985) (contention that actions “arbitrary and capricious” sufficient to allege 7 retaliation). The prisoner must show that the type of activity he was engaged in was 8 constitutionally protected, that the protected conduct was a substantial or motivating factor for the 9 alleged retaliatory action, and that the retaliatory action advanced no legitimate penological 10 interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring retaliatory motive from 11 circumstantial evidence). 12 a. Defendants VanMastrigt, Forncrook, Maxfield, Pearl, Sangmaster, Arnold, Shelton, and Samara 13 Plaintiff claims that Defendants VanMastrigt, Forncrook, Maxfield, Pearl, Sangmaster, 14 Arnold, Shelton, and Samara violated his First Amendment rights insofar as they were involved in 15 failing to rectify or correct the false RVR and in retaliation against Plaintiff for filing an 16 administrative grievance against Defendant Cartwright. There is no evidence of causation, 17 however. 18 The second element of a retaliation action, causation, requires showing that the prison 19 official intended to take the adverse action out of “retaliatory animus” to “silence and punish” the 20 inmate for his or her protected speech, as opposed to for some other reason. Shepard v. Quillen, 21 840 F.3d 686, 698-91 (9th Cir. 2016) (finding genuine issue of material fact as to whether 22 defendant sent inmate to ad seg with intent to (1) follow Cal. Code Regs. tit. 15, § 3335(a) or 23 24 25 (2) retaliate for inmate’s complaint about staff misconduct). Evidence probative of retaliatory animus includes the prison official’s expressed opposition to the speech and evidence that the prison official’s proffered reason for the adverse action was false or pretextual. Id. at 690. 26 Retaliatory motive may also be shown by proximity and time coupled with inconsistency with 27 previous actions. Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003). Mere speculation that 28 10 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 11 of 23 1 defendants acted out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2 2014) (citing cases) (affirming grant of summary judgment where no evidence that defendants 3 knew about plaintiff’s prior lawsuit, or that defendants’ disparaging remarks were made in 4 reference to prior lawsuit). United States District Court Northern District of California 5 There is no evidence that any of the aforementioned Defendants expressed any animus 6 towards Plaintiff or his history of filing administrative appeals, including the November 13, 2017 7 grievance against Defendant Cartwright. Plaintiff stated in his deposition that these Defendants 8 retaliated against him because they could have released him from ad seg but failed to do so. 9 Quinn Decl., Ex. A at 22:12-23:3; 28:23-29:4. Thus, Plaintiff’s deposition testimony revealed that 10 his retaliation claim against these Defendants does not involve prison officials who took adverse 11 action against him because he engaged in “protected conduct,” i.e., filing the November 13, 2017 12 grievance against Defendant Cartwright. See id. Furthermore, in his deposition, Plaintiff claimed 13 that many of the aforementioned Defendants did not communicate with him about the November 14 13, 2017 grievance against Defendant Cartwright. Id. at 18:10-11 (Defendant Pearl); 23:4-7 15 (Defendant Samara); 31:9-17, 32:2-6 (Defendant Jaugun); 33:5-15 (Defendant Cartwright). 16 Plaintiff also claimed that some of the remaining Defendants did not communicate with him 17 outside of their decisions relating to his placement in ad seg. Id. at 23:18-24 (Defendant 18 Sangmaster); 28:1-10 (Defendant Arnold). Thus, no evidence exists showing that prior to these 19 Defendants’ alleged retaliatory actions (i.e., failing to rectify or correct the false RVR), they knew 20 about his November 13, 2017 grievance against Defendant Cartwright. As such, Plaintiff seems to 21 only rely upon speculation that these Defendants had a retaliatory motive, which is not sufficient. 22 See Wood, 753 F.3d at 904. Accordingly, Defendants VanMastrigt, Forncrook, Maxfield, Pearl, 23 Sangmaster, Arnold, Shelton, and Samara are entitled to summary judgment on Plaintiff’s First 24 Amendment retaliation claim, and the motion for summary judgment as to this claim is 25 GRANTED. 26 27 28 b. Defendants Cartwright and Jaugan Plaintiff claims that Defendants Cartwright and Jaugan retaliated against Plaintiff for filing the November 13, 2017 grievance against Defendant Cartwright. Specifically, Defendant 11 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 12 of 23 1 Cartwright falsified an RVR that led to Plaintiff’s placement in ad seg, and Defendant Jaugan 2 prepared a false supplemental rules violation report that bolstered Defendant Cartwright’s RVR. 3 See Dkt. 1 at 16, 17. 4 5 United States District Court Northern District of California 6 However, there is similarly no evidence of causation, namely that Plaintiff’s prior November 13, 2017 grievance caused Defendants Cartwright’s and Jaugan’s actions. First, as to Defendant Jaugan, this Defendant was not named in the November 13, 2017 7 grievance, and there is no evidence that he knew about it. In his deposition, Plaintiff stated that he 8 never communicated with Defendant Jaugan about the November 13, 2017 grievance or about any 9 inmate appeal for that matter. Quinn Decl., Ex. A at 31:15-17. Furthermore, Plaintiff claims that 10 he never had any conversations or interacted with Defendant Jaugan at any time. Id. at 32: 2-6. 11 Thus, no evidence exists showing that Defendant Jaugan expressed any retaliatory animus towards 12 Plaintiff. 13 Next, as to Defendant Cartwright, who was named in the November 13, 2017 grievance, 14 Plaintiff claims that he never discussed that grievance or any inmate appeal with Defendant 15 Cartwright. Id. at 33: 5-15. Plaintiff claims that other than their interaction on November 8, 2017, 16 he did not have any other conversations or interactions with Defendant Cartwright. Id. at 33:8-15. 17 According to Defendant Cartwright’s declaration, he did not know that Plaintiff filed a grievance 18 against him “until weeks after the incident” and he “had no knowledge of the grievance when [he] 19 prepared the [RVR].” Cartwright Decl. ¶ 6. Defendant Cartwright claims that he submitted the 20 RVR (based on the November 8, 2017 incident) on November 15, 2017 because he had been either 21 sick or off work during that one week interim. Id. ¶ 3. Defendant Cartwright also points out that 22 once he submitted the RVR, Plaintiff was moved to ad seg because of the “threatening remarks 23 that he had made to [Defendant Cartwright] during the incident.” Id. ¶ 4. Thus, evidence exists 24 that Defendant Cartwright’s action of preparing the RVR was not motivated by Plaintiff’s 25 protected speech, but rather by broader prison-security purposes. 26 To the extent that Plaintiff argues that Defendants Jaugan’s and Cartwright’s actions took 27 place after Plaintiff filed the November 13, 2017 grievance, mere timing is not enough to show 28 retaliatory motive. Retaliation is not established simply by showing adverse activity by defendant 12 United States District Court Northern District of California Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 13 of 23 1 after protected speech; rather, Plaintiff must show a nexus between the two. See Huskey v. City of 2 San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on logical fallacy of post 3 hoc, ergo propter hoc, i.e., “after this, therefore because of this”). As explained above, Plaintiff 4 has failed to show such a nexus. Absent additional evidence tying Defendants Jaugan’s and 5 Cartwright’s actions to Plaintiff’s protected speech, his claim of retaliatory motive is merely 6 speculative and does not amount to a constitutional violation. See id. (summary judgment proper 7 against plaintiff who could only speculate that adverse employment decision was due to his 8 negative comments about his supervisor six or seven months earlier); see also Wood, 753 F.3d at 9 904. Accordingly, Defendants Jaugan and Cartwright are entitled to summary judgment on 10 Plaintiff’s retaliation claim, and Defendants’ motion for summary judgment is GRANTED as to 11 this claim. 12 13 2. Eighth Amendment Claim For Filing False RVRs Plaintiff alleges that Defendants Jaugan and Cartwright are liable for being deliberately 14 indifferent to Plaintiff’s mental health needs by writing false RVRs that led to his placement in ad 15 seg, which caused him to suffer anxiety and sleep deprivation. 16 Deliberate indifference to serious medical needs, or in this case mental health needs, 17 violates the Eighth Amendment’s prohibition against cruel and unusual punishment. See Estelle v. 18 Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 19 overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 20 1997) (en banc). The analysis of a claim of “deliberate indifference” to serious medical needs 21 involves an examination of two elements: (1) the existence of a prisoner’s serious medical needs 22 and (2) the establishment of a deliberately indifferent response by the defendants to those needs. 23 McGuckin, 974 F.2d at 1059. 24 A serious medical need exists if the failure to treat a prisoner’s condition could result in 25 further significant injury or the “wanton infliction of unnecessary pain.” Id. (citing Estelle, 429 26 U.S. at 104). A prison official is deliberately indifferent if he or she knows that a prisoner faces a 27 substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate 28 it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of 13 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 14 of 23 1 facts from which the inference could be drawn that a substantial risk of serious harm exists,” but 2 “must also draw the inference.” Id. If a prison official should have been aware of the risk, but 3 was not, then the official has not violated the Eighth Amendment, no matter how severe the risk. 4 Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002) overruled on other grounds by 5 Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). In order for deliberate indifference 6 to be established, therefore, there must be a purposeful act or failure to act on the part of the 7 defendant and a resulting harm. See McGuckin, 974 F.2d at 1060. 8 United States District Court Northern District of California 9 Here, Plaintiff presents no evidence indicating that Defendants Jaugun and Cartwright knew of Plaintiff’s mental health needs. In his deposition, Plaintiff confirmed that he never 10 mentioned that he suffered from anxiety, sleep deprivation, or any other “psychological or mental 11 health issue that [he was] having in the ad seg” to Defendant Pearl on November 29, 2017, after he 12 was moved to ad seg. Quinn Decl., Ex. A at 15:21-18:11. As mentioned above, after being 13 transferred to ad seg, he met with another psychologist and reported that he had “some adaptation 14 to the ad seg unit,” “denied any changes in appetite or sleep,” and complained only of weight-loss 15 due to lack of food in his cell. Id. at 18:25-19:17. 16 Furthermore, to state a claim for deliberate indifference, Plaintiff must allege that 17 Defendants Jaugun and Cartwright were subjectively aware that filing the allegedly false RVRs 18 would risk a substantial and dangerous impact on Plaintiff’s mental stability, and consciously 19 disregarded that risk. However, as mentioned, Plaintiff has not alleged any facts suggesting that 20 Defendants Jaugun and Cartwright knew or even should have known of the fragility of Plaintiff’s 21 mental state, such that they could demonstrate indifference to that condition. Plaintiff does not 22 allege sufficient facts to establish liability with respect to either Defendant Jaugun or Defendant 23 Cartwright. Liability may be imposed on an individual defendant under section 1983 only if the 24 plaintiff can show that the defendant proximately caused the deprivation of a federally protected 25 right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another of a 26 constitutional right within the meaning of section 1983 if he does an affirmative act, participates in 27 another’s affirmative act or omits to perform an act which he is legally required to do, that causes 28 the deprivation of which the plaintiff complains. Id. at 633. Here, Plaintiff alleges that 14 United States District Court Northern District of California Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 15 of 23 1 Defendants Jaugun and Cartwright completed the alleged false RVRs. After Plaintiff was placed 2 in ad seg, he claimed to suffer from anxiety and sleep deprivation from being housed in ad seg. 3 However, nothing in the record shows that Defendants Jaugun and Cartwright could have known 4 about Plaintiff’s mental health concerns at the time they completed the RVRs. 5 Furthermore, Defendants argue that Plaintiff cannot support a section 1983 claim against 6 Defendants Jaugun and Cartwright simply on the allegation that these Defendants authored false 7 RVRs, as there is no protected Constitutional right to be free from false disciplinary charges. Dkt. 8 21 at 16 (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (no constitutional claims 9 based on falsity of disciplinary charges); Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986) 10 (“The prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly 11 accused of conduct which may result in the deprivation of a protected liberty interest.”); Hanrahan 12 v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (allegations of a false or fabricated disciplinary 13 charge against an inmate fail to state a claim under section 1983); Buckley v. Gomez, 36 F. Supp. 14 2d 1216, 1222 (S.D. Cal. 1997) (prisoners have no constitutional right to be free from wrongfully 15 issued disciplinary reports); Harvey v. Burris, No. C 14-4133-RS(PR), 2015 WL 8178572, *3 16 (N.D. Cal. Dec. 8, 2015) (allegations that defendants filed false disciplinary report did not give 17 rise to section 1983 claim)). The Court agrees with Defendants. 18 False charges alone are not actionable under section 1983 because falsely accusing a 19 person of misconduct does not violate a right secured by the Constitution or laws of the United 20 States. For a false accusation to be potentially actionable, the false charge must implicate some 21 constitutional right, such as the Fourteenth Amendment’s right to due process. An allegation of a 22 false charge that results in discipline that is not severe enough to amount to a deprivation of a 23 protected liberty interest under Sandin7—i.e., by imposing an atypical and significant hardship or 24 by inevitably affecting the duration of confinement—does not state a claim under section 1983. 25 See Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002) (no section 1983 claim was stated 26 for allegedly false charges because disciplinary confinement imposed was too short to amount to 27 28 7 Sandin v. Conner, 515 U.S. 472, 484 (1995). 15 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 16 of 23 1 atypical and significant hardship under Sandin). Even if the false charge does result in discipline 2 that amounts to the deprivation of a protected liberty interest under Sandin, a section 1983 claim is 3 not stated if the inmate is afforded the procedural protections required by federal law at the 4 disciplinary hearing. See Smith, 293 F.3d at 654; Sprouse, 870 F.2d at 452; Freeman, 808 F.2d at 5 951. United States District Court Northern District of California 6 In essence, Plaintiff claims in a conclusory fashion that Defendant Jaugun and Cartwright 7 were deliberately indifferent to his mental health needs based on their completion of the 8 aforementioned false RVRs. However, sweeping conclusory allegations will not suffice. See 9 Leer, 844 F.2d at 634. Based on these conclusory allegations, Plaintiff cannot demonstrate that 10 Defendants Jaugun and Cartwright were deliberately indifferent to Plaintiff’s mental health needs 11 based solely on these Defendants’ alleged submission of false RVRs. 12 Therefore, Defendants’ motion for summary judgment is GRANTED as to the Eighth 13 Amendment claim against Defendants Jaugun and Cartwright for deliberate indifference to 14 Plaintiff’s mental health needs based on filing false RVRs. 3. Eighth Amendment and Due Process Claims Relating to Plaintiff’s Placement in Ad Seg 15 16 a. Eighth Amendment Claim 17 Plaintiff claims that Defendants VanMastrigt, Forncrook, Maxfield, Pearl, Sangmaster, 18 Arnold, Shelton, and Samara violated Plaintiff’s Eighth Amendment rights for removing him from 19 his housing and transferring him to ad seg without adequate procedural protections or evidentiary 20 support. 21 22 The Eighth Amendment forbids “cruel and unusual punishments.” U.S. Const. amend. VIII. But, the “transfer of an inmate to less amenable and more restrictive quarters for non- 23 punitive reasons is well within the terms of confinement ordinarily contemplated by a prison 24 sentence.” Hewitt v. Helms, 459 U.S. 460, 468 (1983) overruled on other grounds by Sandin, 515 25 U.S. 472. Additionally, an indeterminate stay in ad seg, without more, does not constitute cruel 26 and unusual punishment in violation of the Eighth Amendment. See Anderson v. County of Kern, 27 45 F.3d 1310, 1315-16 (9th Cir. 1995) (no contact with any other inmate in ad seg, either for 28 16 United States District Court Northern District of California Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 17 of 23 1 exercise, day room access or otherwise not cruel and unusual punishment), cert. denied, 516 U.S. 2 916 (1995). 3 Here, taking the facts in the light most favorable to Plaintiff, as to his allegations relating 4 to deprivations while he was held in ad seg for forty-four days from November 15, 2017 through 5 December 28, 2017, the Court finds that Plaintiff has not presented any evidence to raise a triable 6 issue of fact as to whether the alleged deprivations came anywhere near amounting to cruel and 7 unusual punishment, so as to establish an Eighth Amendment violation. Cf. Madrid v. Gomez, 889 8 F. Supp. 1146, 1227-30, 1260-65 (N.D. Cal. 1995) (overall harsh conditions of Pelican Bay State 9 Prison’s Security Housing Unit do not violate the Eighth Amendment for the non-mentally ill 10 inmates therein). Therefore, the Court GRANTS Defendants’ motion for summary judgment as to 11 Plaintiff’s Eighth Amendment claim relating to his placement in ad seg. 12 13 b. Due Process Claim Plaintiff claims his due process rights were violated by Defendants VanMastrigt, 14 Forncrook, Maxfield, Pearl, Sangmaster, Arnold, Shelton, and Samara (1) based on their failure to 15 correct the allegedly false RVRs, and (2) insofar as he was removed from his housing and 16 transferred to ad seg without adequate procedural protections or evidentiary support. 17 The requirements of due process apply only to the deprivation of interests encompassed by 18 the Fourteenth Amendment’s protection of liberty and property. Board of Regents v. Roth, 408 19 U.S. 564, 569 (1972). A protected liberty interest may be created either by the Due Process 20 Clause of its own force or by states through statutes or regulations. Sandin, 515 U.S. at 483-84. 21 The hardship associated with ad seg, such as loss of recreational and rehabilitative programs or 22 confinement to one’s cell for a lengthy period of time, is not so severe as to violate the Due 23 Process Clause itself. See Toussaint v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir. 1986) 24 abrogated in part on other grounds by Sandin, 515 U.S. at 482-83. 25 Prisoners retain their right to due process subject to the restrictions imposed by the nature 26 of the penal system. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Although prison disciplinary 27 proceedings do not require the full panoply of rights due a defendant in a criminal prosecution, the 28 Due Process Clause requires certain minimum procedural protections if (1) state statutes or 17 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 18 of 23 1 regulations narrowly restrict the power of prison officials to impose the deprivation, and (2) the 2 liberty in question is one of “real substance.” Sandin, 515 U.S. at 477-87; Wolff, 418 U.S. at 556- 3 57 n.19. United States District Court Northern District of California 4 “[R]eal substance” will generally be limited to freedom from (1) restraint that imposes 5 “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” 6 or (2) state action that “will inevitably affect the duration of [a] sentence.” Sandin, 515 U.S. at 7 484-87. 8 As mentioned above, the hardship associated with ad seg, such as loss of recreational and 9 rehabilitative programs or confinement to one’s cell for a lengthy period of time, is not so severe 10 as to violate the Due Process Clause itself. Toussaint, 801 F.2d at 1091-92. Thus, Plaintiff has no 11 constitutional right or interest independently protected by the Due Process Clause to be free from 12 placement in ad seg. Id. The Ninth Circuit, however, has held that California statutes and prison 13 regulations create a liberty interest in freedom from ad seg which is protected by due process. Id. 14 at 1098. Title 15 of the California Code of Regulations § 3335(a) permits placement in ad seg 15 where the presence of an inmate in the general population poses a threat to his own safety and/or 16 to an ongoing investigation of serious misconduct or criminal activity. Cal. Code. Regs. tit. 15, 17 § 3335(a). Section 3339(a) provides that release from segregation shall occur at the earliest 18 possible time. Id., § 3339(a). Toussaint held that, when read together, these regulations create a 19 liberty interest in freedom from ad seg. 801 F.2d at 1098. 20 Therefore, before a prisoner may be placed in ad seg for the violation of prison rules, he or 21 she must be afforded five procedural protections. First, “written notice of the charges must be 22 given to the disciplinary-action defendant in order to inform him of the charges and to enable him 23 to marshal the facts and prepare a defense.” Wolff, 418 U.S. at 564. Second, “[a]t least a brief 24 period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare 25 for the appearance before the [disciplinary committee].” Id. Third, “there must be a ‘written 26 statement by the factfinders as to the evidence relied on and reasons’ for the disciplinary action.” 27 Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Fourth, “the inmate facing 28 disciplinary proceedings should be allowed to call witnesses and present documentary evidence in 18 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 19 of 23 1 his defense when permitting him to do so will not be unduly hazardous to institutional safety or 2 correctional goals.” Id. at 566. Fifth, 3 [w]here an illiterate inmate is involved . . . or where the complexity of the issues makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or . . . to have adequate substitute aid . . . from the staff or from a[n] . . . inmate designated by the staff. 4 5 6 Id. at 570. 7 In Superintendent v. Hill, 472 U.S. 445, 455 (1985), the Supreme Court held that 8 disciplinary proceedings do not satisfy due process requirements unless there is “some evidence” 9 in the record to support the findings of the prison disciplinary board. The Ninth Circuit requires 10 that “some evidence” also support a decision to place an inmate in segregation for administrative 11 United States District Court Northern District of California reasons. See Toussaint, 801 F.2d at 1104-05 (citing Hill, 472 U.S. at 455). Ascertaining whether 12 the standard is satisfied does not require examination of the entire record, independent assessment 13 of the credibility of witnesses or weighing of the evidence. Id. Instead, the relevant question is 14 whether there is any evidence in the record that could support the conclusion reached. Id. 15 First, Plaintiff’s fails to state a claim for the violation of due process against the 16 aforementioned Defendants based on their failure to correct the allegedly false RVRs because 17 Plaintiff fails to identify the liberty interest to which he was entitled and that he was deprived of 18 based on their actions. Also, Plaintiff has not claimed that any of these Defendants had 19 knowledge that the charges listed on the RVR against Plaintiff were false. Therefore, this claim 20 does not provide a basis for a due process violation. 21 Second, Plaintiff holds each of the aforementioned Defendants liable for various reasons. 22 Defendant VanMastrigt as well as Classification Committee members Defendants Forncrook and 23 Maxfield violated his due process rights by approving the Administrative Segregation Unit 24 25 Placement Notice that resulted from Defendants Jaugan’s and Cartwright’s false RVRs. Dkt. 1 at 6, 15-19. Defendant Sangmaster endorsed the “false allegations” by approving the RVRs, and 26 Defendant Arnold endorsed the false RVRs by classifying the RVR and requesting a mental health 27 assessment. Id. at 6, 30. Defendant Shelton was the RVR Hearing Officer who found Plaintiff 28 19 United States District Court Northern District of California Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 20 of 23 1 guilty of Threatening Staff and signed the Disciplinary Hearing Results. Id. at 6, 30-37. 2 Defendant Samara was the Chief Disciplinary Officer who affirmed and signed the Disciplinary 3 Hearing Results. Id. at 6, 37-39. Finally, Defendant Pearl was the psychologist who conducted 4 Plaintiff’s mental health assessment and prepared the mental health assessment report. Id. at 6, 19. 5 It seems that Plaintiff claims that these Defendants signed documents which contained false or 6 fabricated charges stemming from the false RVR, but did nothing to correct them and prevent his 7 placement in ad seg. Id. at 6; Quinn Decl., Ex. A at 22:12-23:3. However, as stated above, 8 Plaintiff fails to show that these Defendants were aware that the RVRs stemming from the 9 November 8, 2017 incident contained any fabrications. Plaintiff has thus provided no basis on 10 which a jury could find that Defendants VanMastrigt, Forncrook, Maxfield, Pearl, Sangmaster, 11 Arnold, Shelton, and Samara knowingly signed or approved a false or fabricated report. 12 Meanwhile, Defendant Cartwright has provided a declaration in which he stated under 13 penalty of perjury that on November 8, 2017, he witnessed Plaintiff make “a number of 14 threatening remarks to [Defendant Cartwright], such as, ‘You’re nothing by a coward, you fucking 15 bitch,’ and ‘I’ll beat your ass when I get out of here.’” Cartwright Decl. ¶ 2. Defendant 16 Cartwright claims that he was sick or off work for the next week and when he returned to work on 17 November 15, 2017, he “prepared a[n] [RVR] concerning the November 8, 2017 incident.” Id. 18 ¶¶ 3-4. While Plaintiff refutes Defendant Cartwright’s version of the events on November 8, 19 2017, Plaintiff agrees that he was present during the incident but claims that Defendant Cartwright 20 called Plaintiff a “pedophil[e]” during that confrontation. Dkt. 1 at 8. Again, aside from 21 disagreeing with Defendant Cartwright’s version of the November 8, 2017 incident, Plaintiff does 22 not present any more evidence other than his conclusory statement that the RVRs written by 23 Defendants Jaugan8 and Cartwright were “false.” Id. at 6, 17. As mentioned above, sweeping 24 25 26 27 28 The Court notes that Defendant Jaugan’s supplemental RVR does not relate to the November 8, 2017 incident. Dkt. 1 at 17. Instead, it relates to an April 2017 incident, during which he had a conversation with Plaintiff during which “[Plaintiff] would make rude remarks to [Defendant Jaugan] . . . in regards to [his] accent.” Id. Plaintiff said, “This Mother Fucker shouldn’t be working at the desk, you can’t even understand him.” Id. During another incident in August 2017, Defendant Jaugan claims that while he made his announcements, Plaintiff “would come out of his cell and say, ‘You are not in charge! This is Luna’s unit so go Fuck yourself.’” Id. Plaintiff does not specifically address in what way the aforementioned statements made by 20 8 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 21 of 23 1 conclusory allegations will not suffice. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) 2 (“When the nonmoving party relies only on its own affidavits to oppose summary judgment, it 3 cannot rely on conclusory allegations unsupported by factual data to create an issue of material 4 fact.”). United States District Court Northern District of California 5 Third, any decisions relating to the threatening staff RVR were made by Defendant 6 Shelton, the senior hearing officer. Dkt. 1 at 30-39. In reaching the decision to find Plaintiff 7 guilty, Defendant Shelton relied on the report prepared by Defendant Cartwright, the incident 8 package prepared by Defendant VanMastrigt, Plaintiff’s “plea, verbal and written statements,” the 9 Investigative Employee report, and the mental health assessment report prepared by Defendant 10 Pearl. Id. at 35. It was then the job of the Defendant Shelton, the Investigative Employee, and the 11 SQSP Investigative Services Unit, not any of the other aforementioned Defendants, to investigate 12 further into the threatening staff RVR. See Dkt. 1 at 30-39. The record shows that at the hearing 13 for the threatening staff RVR, Plaintiff received advance written notice of the charges, at least 14 twenty-four hours of preparation time, a written statement from the committee explaining the basis 15 for its decision, and the opportunity to present evidence in his defense and call witnesses9. See id. 16 Plaintiff was given a hearing on his threatening staff RVR on December 4, 2017. See id. Thus, it 17 seems that Plaintiff received all the due process protections required by Wolff. 18 Plaintiff claims that during the RVR hearing, Defendant Shelton did not take into account 19 Plaintiff’s “RVR supplemental witness report” or his “other witness statements [by] [Correctional 20 Officers] M. Martinez [and] N. Faghirzaden [and] inmate’s statements.” Dkt. 1 at 40. It seems 21 that Plaintiff wished for such evidence to bolster his claim that the charges in the RVR were false. 22 However, although an inmate has the right under Wolff to present documentary evidence in 23 support of his defense, that right is limited by correctional and institutional concerns. See Wolff, 24 418 U.S. at 566. A legitimate correctional concern is the prompt resolution of disciplinary 25 26 27 28 Defendant Jaugan were false. However, the Court considers Defendant Jaugan’s supplement RVR to the extent that it was submitted in support of the threatening staff RVR. The record shows that Plaintiff “elect[ed] not to call witness(es) for his RVR hearing.” Dkt. 1 at 31. 21 9 United States District Court Northern District of California Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 22 of 23 1 charges. See generally id. (“Prison officials must have the necessary discretion to keep the 2 hearing within reasonable limits”). Thus, while Wolff requires that an inmate be allowed to 3 present evidence, it does not command that he be allowed unlimited time in which to do so or to 4 make a request that the hearing officer consider evidence not already gathered. In addition, it may 5 seem that Plaintiff’s denial of the charges and that his supporting evidence could create triable 6 issues of fact. They do not do so, however, because both the Court and a properly-instructed jury 7 must apply the same rule from Superintendent v. Hill to determine whether there was a due 8 process violation. The question for the Court—or for a jury—is not whether Plaintiff was guilty 9 of the offense; instead, the question is whether there was “some evidence” to support Defendant 10 Shelton’s decision. Review of this disciplinary decision illustrates the very limited nature of the 11 “some evidence” inquiry, as the reviewing court (or a jury considering such a claim) cannot 12 reweigh the evidence but instead must consider only whether there was “some evidence” in the 13 record to support the senior hearing officer’s conclusion. Superintendent v. Hill does not permit 14 such a re-weighing of the evidence by the Court or by a jury, and instead commands that the 15 decision be upheld if “there is any evidence in the record that could support the conclusion 16 reached by the disciplinary board.” 472 U.S. at 455-56. On the evidence in the record, a 17 reasonable juror could find that there was “some evidence” to support Defendant Shelton’s 18 disciplinary decision. 19 Lastly, the Court notes that on November 15, 2017, Plaintiff was placed in ad seg due to 20 the pending threatening staff RVR stemming from the November 8, 2017 incident. Dkt. 1 at 18. 21 An investigation regarding the November 8, 2017 incident was ongoing, and thus Plaintiff was 22 housed in ad seg until that investigation was complete. See id. As explained above, Title 15 of 23 the California Code of Regulations § 3335(a) permits placement of an inmate in ad seg if that 24 inmate’s presence in the general population would threaten an ongoing investigation of serious 25 misconduct or criminal activity. See Cal. Code. Regs. tit. 15, § 3335(a). Here, the record contains 26 “some evidence” to support the prison officials’ decision to place Plaintiff in ad seg during that 27 time, i.e., prior to the RVR hearing. See Toussaint, 801 F.2d at 1104. The Court notes that after 28 his threatening staff RVR hearing, Defendant Shelton found Plaintiff guilty and assessed a sixty22 Case 4:18-cv-07466-YGR Document 30 Filed 03/01/21 Page 23 of 23 1 day forfeiture of credits. See Dkt. 1 at 35, 37. The record further shows that at Plaintiff’s 2 Classification Committee Chrono hearing on December 28, 2017, the committee elected to assess 3 Plaintiff and to impose “a 3 month 16 day mitigated [ad seg] term for [the] RVR dated 4 11/08/17 . . . ,” but it “elect[ed] to suspend the remainder of the [ad seg] term effective 5 12/28/2017.”10 Dkt. 1 at 51. As mentioned, Plaintiff was therefore released from ad seg on 6 December 28, 2017. In sum, Defendants are entitled to summary judgment on the due process claim because United States District Court Northern District of California 7 8 (1) Plaintiff has failed to provide any evidence showing that Defendants fabricated charges against 9 him; and (2) Plaintiff received all necessary due process protections during his detention in ad seg. 10 Accordingly, their motion for summary judgment is GRANTED as to this claim. 11 IV. 12 CONCLUSION For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED as to 13 all claims.11 Dkt. 21. Plaintiff’s unexhausted claim—his First Amendment claim against 14 Defendants Voong and Broomfield—is DISMISSED without prejudice to refiling after exhausting 15 California’s prison administrative process. See McKinney, 311 F.3d at 1200-01. 16 The Clerk of the Court shall terminate all pending motions and close the file. 17 This Order terminates Docket No. 21. 18 IT IS SO ORDERED. 19 Dated: March 1, 2021 20 ______________________________________ JUDGE YVONNE GONZALEZ ROGERS United States District Judge 21 22 23 24 25 26 27 28 The Court notes that Plaintiff’s claims in his complaint relate only to his initial placement and retention in ad seg as a result of the threatening staff RVR as opposed to the mitigated (and suspended) ad seg term imposed by the committee on December 28, 2017. See Dkt. 1. 10 The Court’s finding that Defendants are entitled to summary judgment as a matter of law on Plaintiff’s above-referenced claims obviates the need to address their alternative argument regarding an entitlement to qualified immunity. 23 11

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