Brian C Dubrin v. County of San Bernardino et al

Filing 94

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Cormac J. Carney for NOTICE OF MOTION AND MOTION for Summary Judgment as to Entire Action 65 , Report and Recommendation (Issued) 90 . IT IS HEREBY ORDERED that the Motion for Summary Judgment is denied and that the Clerk serve copies of this Order on plaintiff and counsel for defendants. (dml)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRIAN C. DUBRIN, Plaintiff, 12 13 14 Case No. EDCV 15-589 CJC(JC) v. COUNTY OF SAN BERNARDINO, et al., 15 Defendant. ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative First Amended Complaint, all documents submitted by the parties in connection with the Motion for Summary Judgment filed by defendants County of San Bernardino and San Bernardino County Sheriff’s Department Sergeant Martinez, and all of the records in the case including the September 7, 2017 Report and Recommendation of United States Magistrate Judge (“Report and Recommendation” or “R&R”) and defendants’ objections to the Report and Recommendation (“Objections” or “Obj.”). The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made.1 The Court concurs 26 27 1 Unless otherwise indicated, this Court declines to consider new arguments raised and 28 new evidence presented for the first time in Objections to the Report and Recommendation and, in any event, finds that such new arguments are meritless and that such new evidence would not alter the outcome. See generally United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000), cert. denied, 534 U.S. 831 (2001). 1 with and accepts the findings, conclusions, and recommendations of the United 2 States Magistrate Judge and overrules the Objections. The Objections largely 3 mischaracterize the Report and Recommendation and much of the evidence in the 4 record and/or present conclusory arguments that are either immaterial to the issues 5 on summary judgment or essentially assert the same arguments plaintiff previously 6 raised, and which the Report and Recommendation properly concludes have no 7 merit. This Court more specifically addresses certain portions of the Objections 8 below.2 9 Defendants object that “the R&R discounted and refused to rule on any of 10 defendants’ [evidentiary] objections. . . .” (Obj. at 5). To the extent the Report and 11 Recommendation relied at all on evidence that was the subject of an evidentiary 12 objection, it actually recommended that “the [Evidentiary] Objections should be 13 overruled either on the merits or because consideration of the evidence in issue 14 does not alter the outcome, rendering the Objections moot.” (R&R at 3 n.4). 15 Defendants object “the R&R adopted plaintiff’s allegations concerning the 16 sole cause of his Hepatitis C infection, utterly ignoring [other conflicting 17 evidence]. . . .” (Obj. at 7-8) (citing R&R at “9:12-9 [sic] and 44:15-16”). This 18 objection – like so many of defendants’ others – both mischaracterizes the Report 19 and Recommendation and the record and reflects a fundamental misunderstanding 20 of the Court’s role on summary judgment. For example, the Report and 21 Recommendation did not “adopt[]” plaintiff’s allegations, as defendants assert. 22 Instead, the Report and Recommendation sections cited by defendants simply 23 provided a discussion of certain controverted facts identified by plaintiff and 24 explained how a reasonable jury could draw certain material inferences thereform 25 that were favorable to plaintiff’s case (i.e., “that Pimentel . . . could have been 26 infected with Hepatitis C and shared a common razor with plaintiff during the 27 28 2 The Court uses the same abbreviations for individuals and record citations that were defined in the Report and Recommendation. (See R&R at 2-3 nn.2-4). 2 1 Pertinent Time Period”) when such facts were viewed in the light most favorable to 2 plaintiff (the non-moving party) – as the Court must do on summary judgment. See 3 Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014). In any event, this objection 4 essentially raises a genuine dispute of material fact which must be resolved at trial, 5 and/or asks that the court weigh or assess the credibility of conflicting evidence, 6 which the Court may not do on summary judgment. See Porter v. California 7 Department of Corrections, 419 F.3d 885, 891 (9th Cir. 2005) (court does not 8 evaluate credibility or weigh conflicting evidence on summary judgment) (citation 9 omitted). 10 Defendants object to “the R&R’s reliance on the new inmate declarations 11 not served in discovery and filed only in an attempt to create a ‘sham issue of fact’ 12 was contrary to law.” (Obj. at 21, 29, 30). For example, defendants appear to 13 argue that declarations from inmates Pimentel, Cruz, and Taylor do not raise a 14 genuine dispute of material fact as to whether defendant Martinez was, in fact, 15 present in Unit 5 at any relevant time essentially because such declarations 16 purportedly “contain statements that were proven absolutely false” and improperly 17 attempt to establish “[defendant] Martinez’s position, role, location, or authority 18 within the Sheriff’s Department” not based on personal knowledge. (Obj. at 21-22, 19 29). Nonetheless, defendants cite no persuasive legal authority for their apparent 20 proposition that such declarations should not be considered simply because they 21 were prepared in opposition to a motion for summary judgment. Moreover, such 22 declarations are not, as defendants also appear to argue, improper for opposing 23 summary judgment simply because they contain witness statements that are 24 contradicted by other evidence in the record. To the contrary, a non-moving party 25 cannot defeat summary judgment without presenting evidence that contradicts the 26 moving party’s facts – such as “[a]n affidavit or declaration used to . . . oppose a 27 motion. . . .” Fed. R. Civ. P. 56(c)(1); Anderson v. Liberty Lobby, Inc., 477 U.S. 28 242, 256 (1986). Such declarations are also not objectionable under the “sham 3 1 affidavit” rule. In general, a party may not generate a declaration with “helpful 2 facts” that directly contradict prior harmful evidence in the same party’s own 3 interrogatory responses or deposition testimony “solely in order to create a genuine 4 issue of material fact” to avoid summary judgment. School District No. 1J, 5 Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993) 6 (citations omitted), cert. denied, 512 U.S. 1236 (1994); see id. (noting sham 7 affidavit rule “should be applied with caution”) (citing Kennedy v. Allied Mutual 8 Insurance Co., 952 F.2d 262, 266 (9th Cir. 1991)). The cases cited in the 9 Objections do not support defendants’ assertion that “the ‘sham issue of fact’ 10 doctrine . . . precludes a party from creating an issue of fact with an affidavit that 11 contradicts prior discovery” (Obj. at 21), where, as here, no showing has been 12 made that the affidavits contradict prior discovery responses of the proffering 13 party. 14 Similarly, defendants appear to challenge the Report and Recommendation 15 determination that a reasonable jury could infer that WVDC officials maintained a 16 custom or practice of failing properly to process inmate grievances and/or 17 retaliating against grieving inmates, asserting that the inmate declarations the 18 Report and Recommendation cited in support “cannot be based on [such inmates’] 19 personal knowledge of seeing plaintiff attempt to grieve any issues because none of 20 these inmates were [sic] housed in the same cell or even the same housing segment 21 to be able to see each other.” (Obj. at 22-23, 30) (citing MSJ Exs. 3, 14-16) 22 (emphasis added). Defendants’ argument is not supported by the exhibits 23 defendants cite, which reflect the housing assignments for only three of the six 24 inmates who provided the declarations referenced in the Report and 25 Recommendation. (See R&R at 61-62) (citing Opp. Decl. 1 at 2; Opp. Decl. 4 ¶¶ 26 8-9; Opp. Decl. 10 at 1-2; Opp. Decl. 13 ¶¶ 8-9; Opp. Decl. 15 ¶ 4; Opp. Decl. 16; 27 Opp. Decl. 17 ¶ 4; Opp. Decl. 18 ¶ 2). In any event, at most defendants raise a 28 dispute of fact for trial and/or essentially challenge the weight and/or the 4 1 credibility of conflicting evidence testimony such inmates could provide at trial, 2 which again is improper on summary judgment. 3 Defendants argue that the Report and Recommendation improperly 4 “establish[ed] the scope of [defendant] Martinez’[s] role [at WVDC]” based on 5 allegations in the verified First Amended Complaint which contained 6 “impermissible hearsay.” (Obj. at 10-11) (citing R&R at 6:24-27). The excerpt 7 from the Report and Recommendation cited by defendants, however, does not 8 “establish” anything about defendant Martinez’s role at WVDC, and merely 9 describes certain facts “[p]laintiff allege[d]” to provide context in the Report and 10 Recommendation’s statement of facts. (See R&R at 6) (citing FAC ¶ 20). To the 11 extent defendants intended to argue that the Report and Recommendation 12 improperly relied on the alleged hearsay statements when finding that “a 13 reasonable jury could infer that defendant Martinez took ‘adverse action’ against 14 plaintiff for repeatedly complaining to WVDC deputies about the Unit 5 Razor 15 Policy[,]” such an argument also lacks merit since, as the Report and 16 Recommendation essentially reflects, the record contains sufficient evidence to 17 support such an inference even without the challenged statements. (R&R at 51) 18 (citing, in part, SUF ¶ 13; FAC ¶ 19; MSJ Ex. 3). 19 Defendant Martinez objects that “the R&R concluded that [defendant] 20 Martinez specifically housed or approved of the housing of an HIV-positive 21 inmate, McClain, with plaintiff for retaliatory purposes based on impermissible 22 double-hearsay and ‘circumstantial’ evidence.” (Obj. at 11, 34, 36) (citing R&R at 23 8:25-9:1, 51:27-52:3). In the verified First Amended Complaint, plaintiff attests 24 that one of the deputies who escorted McClain to Unit 1 Ad-Seg affirmatively told 25 plaintiff that McClain “was HIV/AIDS positive” and that “[defendant] Martinez” 26 wanted the deputy to tell plaintiff to “have fun with the razor now[.]” (FAC ¶ 26). 27 Nonetheless, the objections to plaintiff’s evidence submitted with defendants’ 28 Reply in support of the instant summary judgment motion did not challenge any 5 1 allegations in the verified First Amended Complaint on hearsay grounds, and thus 2 such an evidentiary challenge has now been waived. See Fireguard Sprinkler 3 Systems, Inc. v. Scottsdale Insurance Co., 864 F.2d 648, 651 n.2 (9th Cir.1988) 4 (failure to object to allegedly defective evidence waives the objection for purposes 5 of summary judgment); Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1094 (9th 6 Cir. 1990) (“For purposes of summary judgment, the court had to consider [certain] 7 testimony, even if it was hearsay, because [the defendant] failed to object.”) (citing 8 id.). In any event, the record reflects that, to the extent the evidence is hearsay at 9 all and/or is not subject to an exception, it may be considered on summary 10 judgment where, like here, such evidence could be presented in an admissible form 11 at trial. See JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 12 (9th Cir. 2016) (“[A]t summary judgment a district court may consider hearsay 13 evidence submitted in an inadmissible form, so long as the underlying evidence 14 could be provided in an admissible form at trial, such as by live testimony.”) 15 (citing Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), cert. denied, 16 541 U.S. 937 (2004)). 17 Defendants appear to object to the Report and Recommendation’s finding 18 that a reasonable jury could conclude that the Unit 5 Shaving Post Orders 19 “effectively ensured that the communal razors provided in Unit 5 would not be 20 properly disinfected[,]” in part, based on evidence which suggests that individual 21 inmates were never told about – and thus never used – the State Barbering Method 22 to disinfect a shared razor. (Obj. at 12; see R&R at 40 (citing MSJ Ex. 9 at 2)). 23 Defendants assert “[t]he R&R [] states that inmates have no knowledge of the 24 grooming standards other than what is included in the Inmate Rules and Regulation 25 provided during orientation[,]” and request leave to submit additional evidence 26 (i.e., “the Inmate Orientation Video) and ask the Court to take judicial notice of 27 other evidence which reflects that inmates were, in fact, aware of what was 28 required of them under the applicable regulations and policies regarding inmate 6 1 grooming. (Obj. at 12-13) (citing R&R at 12:19-21) (emphasis added).3 2 Nonetheless, the actual language in the Report and Recommendation cited by 3 defendants merely states that the SBSD Brochure does not address inmate facial 4 hair grooming beyond a very limited description, not that inmates were necessarily 5 otherwise generally unaware of WVDC grooming standards. (R&R at 12) (citing 6 MSJ Ex. 9 at 2). In any event, at most defendants raise a dispute of fact for trial 7 and/or challenge the weight and/or the credibility of conflicting evidence 8 Defendants object that “the R&R inaccurately concluded that 36 inmates 9 share 90 minutes of tier time during which all 36 inmates vie for a single 10 communal razor[,]” and seek leave to “submit additional documentation” which 11 purportedly reflects that “there is sufficient time for Ad-Seg inmates to disinfect 12 and use [communal] razors during their unfettered tier time . . . .” (Obj. at 14-15) 13 (citing R&R at 37:8-38:18). To the extent defendants have not mischaracterized 14 the Report and Recommendation, they appear to take issue with the Report and 15 Recommendation’s finding that “there is also sufficient evidence to support a 16 reasonable inference that inmates had very little time to shave” and thus may not 17 have been able and/or willing to disinfect a communal razor after each use, despite 18 the Unit 5 Shaving Post Orders which required as much. (Obj. at 13-15; see R&R 19 at 38 (citing MSJ Ex. 5 at 38, 44; MSJ Supp. Ex. 1b; MSJ Supp. Ex. 4 at 20-21)). 20 Nonetheless, the evidence defendants proffer is largely duplicative of other 21 uncontroverted evidence already in the record (i.e., that plaintiff was required to 22 shave with a single, communal razor in Unit 5), and at best, raises a dispute of 23 24 25 26 27 28 3 Defendants represent that they had not previously addressed the issue of “inmate[] knowledge of the rules, grooming standards, and availability of [related regulations or other information]” because the issue “was not raised by plaintiff in the pleadings or Opposition.” (Obj. at 12). Such assertion is puzzling, however, since defendants’ statement of uncontroverted facts describes MSJ Ex. 9 as “Inmate Rules and Regulations and Orientation Video,” and defendants’ attorney attested that such exhibit contained “true and correct copies of the documents provided to inmates upon their entry at [WVDC].” (SUF ¶ 34; Ivicevic Decl. ¶ 9). 7 1 material fact for trial as to the issue. 2 Defendants object that “the R&R incorrectly took judicial notice [of 3 information on the CDC web site] that Hepatitis C can be transmitted via an 4 electric razor,” and essentially point to other information on the CDC web site 5 which purportedly reflects that sharing electric razors is actually unlikely to 6 transmit Hepatitis C. (Objections at 15-16, 25-26) (emphasis in original). Taking 7 judicial notice of the additional information identified by defendants would not 8 alter the outcome of this matter. Defendants’ objection simply highlights 9 conflicting evidence on a material fact in dispute (i.e. whether a reasonable jury 10 could infer that plaintiff contracted Hepatitis C by sharing a communal razor at 11 WVDC), and thus fails to satisfy defendants’ burden on summary judgment to 12 demonstrate the absence of a genuine dispute of material fact. 13 IT IS HEREBY ORDERED that the Motion for Summary Judgment is 14 denied and that the Clerk serve copies of this Order on plaintiff and counsel for 15 defendants. 16 IT IS SO ORDERED 17 DATED: September 29, 2017 18 19 ________________________________________ 20 HONORABLE CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 8

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