Royal v. Knight et al
Filing
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ORDER GRANTING Defendants' 40 Motion for Summary Judgment signed by Magistrate Judge Barbara A. McAuliffe on 12/19/2013. CASE CLOSED. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARLIN LATTEREAL ROYAL,
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Plaintiff,
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v.
S. KNIGHT, et al.,
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Defendants.
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I.
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Case No.: 1:09-cv-01407-BAM (PC)
ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
(ECF No. 31)
Introduction
Plaintiff Marlin Lattereal Royal (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s
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first amended complaint, filed on August 19, 2010, against Defendant Knight for excessive force in
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violation of the Eighth Amendment and retaliation in violation of the First Amendment, and against
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Defendant Clark for failure to protect in violation of the Eighth Amendment. (ECF Nos. 15, 36.) The
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parties have consented to Magistrate Judge jurisdiction. (ECF Nos. 5, 34.)
Currently pending before the Court is Defendants’ motion for summary judgment filed on
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October 30, 2012.1 (ECF No. 40.) Plaintiff opposed the motion on February 11, 2013, and
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Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment. (ECF No.
41); see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988); Klingele v.
Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
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Defendants replied on February 19, 2013. (ECF Nos. 48, 49, 50.) The motion is deemed submitted.
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Local Rule 230(l).
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II.
Legal Standard for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a) summary judgment is appropriate when the
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movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
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judgment as a matter of law. Summary judgment must be entered, “after adequate time for discovery
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and upon motion, against a party who fails to make a showing sufficient to establish the existence of
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an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, the court is to liberally construe the
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filings and motions of pro se litigants. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). The
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“party seeking summary judgment always bears the initial responsibility of informing the district court
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of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to
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interrogatories, and admissions on file, together with the affidavits, if any, which it believes
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demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 (internal
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quotations and citations omitted).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party
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to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co.
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v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this
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factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to
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tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in
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support of its contention that the dispute exists. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586
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n.11.
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The parties bear the burden of supporting their motions and oppositions with the papers they
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wish the Court to consider and/or by specifically referencing any other portions of the record for
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consideration. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).
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The Court will not undertake to scour the record for triable issues of fact. Simmons v. Navajo County,
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Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010).
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In arriving at these findings and recommendations, the Court carefully reviewed and
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considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts
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and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference
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to an argument, document, paper, or objection is not to be construed to the effect that this Court did
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not consider the argument, document, paper, or objection. This Court thoroughly reviewed and
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considered the evidence it deemed admissible, material, and appropriate.
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A.
Summary of Relevant Allegations in First Amended Complaint
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Allegations against Defendant Knight
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Plaintiff alleges that on January 28, 2009, Defendant Knight became verbally and physically
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abusive. When his personal property was delivered, Plaintiff informed Defendant Knight that his
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television was missing. Defendant Knight told Plaintiff to shut up the fuck up or his property would
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be taken back. Plaintiff asked Defendant Knight not to speak to him that way. Defendant Knight
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replied, “I told you to shut the fuck up. Your [sic] an inmate. I do not have to respect you. If you say
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another word you will not get your present property today.” (ECF No. 15, p. 3.) Plaintiff replied,
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“I’m not a child. I’m a man. Please do not speak to me that way.” Defendant Knight became very
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loud and screamed, “Fuck this shit. Go back to your cell. I’m not giving you your property.” (Id.)
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While Plaintiff complied with the order, Defendant Knight grabbed Plaintiff’s right shoulder and
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screamed, “I told you you’re an inmate and I do not respect inmates.” (Id.) Defendant Knight pushed
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Plaintiff into the cell frame, instantly causing pain to Plaintiff’s shoulder, neck, head and back.
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Plaintiff was seen by medical, where it was confirmed that he had a swollen injured shoulder. Plaintiff
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was given Naproxen.
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On March 25, 2009, Defendant Knight came to Plaintiff’s cell and threatened that Plaintiff
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would be placed in the “hole” (Administrative Segregation) if he refused to withdraw a citizen
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complaint and a 602 complaint and if he refused to stop his family members from calling Warden
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Clark and Sergeant Turner. Plaintiff became worried and sent letters to his family.
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On April 1, 2009, Defendant Knight carried out his threat by filing a bogus 115 Rule Serious
Violation Report. While confined in the program office, Defendant Knight bragged to Plaintiff that he
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had his television and that Plaintiff would never see it. Defendant Knight swore that if Plaintiff
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continued with the complaints, then he would hurt Plaintiff in isolation.
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Allegations against Defendant Clark
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In February and March 2009, Plaintiff filed a staff assault appeal/complaint/citizen complaint
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to the Warden, Defendant Clark. In March 2009, Plaintiff wrote a letter to Defendant Clark notifying
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him of a staff assault by Defendant Knight. Plaintiff’s mother and family members contacted
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Defendant Clark by telephone to express their concerns. Plaintiff’s mother was assured that threats
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and future assaults would stop, but Defendant Knight continued his threats, including isolation and
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television set denial.
Statement of Undisputed Material Facts (“UMF”)
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B.
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Defendant Knight
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1.
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In January 2009, Defendant Knight was a Search & Escort (S&E) officer in Facility D
at California Substance Abuse Treatment Facility (“SATF”). (Knight Dec. ¶ 2.)
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Among Defendant Knight’s duties as an S&E officer were escorting prisoners to and
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from their cells to medical, dental, or other appointments, or to new housing locations within SATF;
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and providing prisoners with their personal property after their return from administrative segregation.
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(Knight Dec. ¶ 3.)
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3.
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On January 22, 2009, Plaintiff was moved from a cell in the Administrative
Segregation Unit in Facility E to a cell in Facility D. (Knight Dec. ¶ 4.)
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Shortly after Plaintiff’s move to Facility D, he asked Defendant Knight about personal
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property that he had not yet received, and Defendant Knight told Plaintiff that he would see about his
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property. (Knight Dec. ¶ 5.)
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5.
On or around January 28, 2009, Defendant Knight located three boxes of Plaintiff’s
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personal property in the property office, put the boxes on a hand cart, and brought them to the Facility
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D office. (Knight Dec. ¶ 7.)
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Although Plaintiff disagrees with the date, he does not provide any admissible evidence to
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create a genuine dispute or to suggest a different date. The Court therefore treats this fact as
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undisputed.
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Once into the Facility D office with the boxes containing Plaintiff’s property,
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Defendant Knight asked the control booth officer to let Plaintiff into the Facility D office. (Knight
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Dec. ¶ 7.)
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When a prisoner takes possession of his property, he must sign a property inventory
receipt (Form CDCR 1083). (Knight Dec. ¶ 8.)
Plaintiff attempts to dispute this fact by contending that an inmate has the right to refuse to
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sign the form if his property is not all there or to note discrepancies. (ECF No. 49.) Plaintiff’s
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contention does not raise a genuine dispute regarding the requirement that inmates must sign the form
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when they take actual possession of their property. The Court therefore treats this fact as undisputed.
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8.
After looking at the property in the three boxes, Plaintiff told Defendant Knight that a
package was missing. (Knight Dec. ¶ 9.)
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Plaintiff refused to sign the property receipt. (Knight Dec. ¶ 10.)
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10.
At that time, Defendant Knight had other duties requiring his attention that precluded
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spending more time with Plaintiff concerning his personal property. (Knight Dec. ¶ 11.)
Plaintiff attempts to deny this fact by asserting that Defendant Knight had no other duties other
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than his immediate duty as a property officer. (ECF No. 49.) Plaintiff has not provided any credible
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evidence to support this statement. The Court therefore treats this fact as undisputed.
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Defendant Knight told Plaintiff that he did not have time then to discuss his property
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issues and gave him two options: take the property that was in the three boxes and sign the property
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receipt or take nothing. (Knight Dec. ¶ 12.)
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12.
Plaintiff did not agree to either option. (Knight Dec. ¶ 12.)
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13.
Plaintiff became agitated. (Knight Dec. ¶ 14.)
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Defendant Knight repeatedly ordered him to leave the office without any of his
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property and lock up. (Knight Dec. ¶ 15.)
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After refusing several of Defendant Knight’s orders to leave the office, Plaintiff finally
got up, and Defendant Knight escorted him to his cell. (Knight Dec. ¶ 16.)
Plaintiff attempts to deny this fact by general citation to his declaration. Plaintiff’s declaration
does not contain any information to dispute this fact. (ECF No. 48, pp. 30-31.)
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After Plaintiff was locked in his cell, Defendant Knight took the three boxes of his
property back to the property office. (Knight Dec. ¶ 18.)
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After Defendant Knight’s encounter with Plaintiff on January 28, 2009, Defendant
Knight had nothing more to do with Plaintiff’s property. (Knight Dec. ¶ 20.)
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Although Plaintiff attempts to dispute this fact by stating that Defendant Knight spitefully held
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his TV package by citing his 602 complaint, Plaintiff provides no credible evidence to raise a genuine
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dispute of fact.
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On January 29, 2009, Plaintiff submitted a Health Care Service Request, in which he
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complained that he could not control his breathing as a result of Defendant Knight’s pushing him in
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his cell. (Defs’ Ex. 3.)
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On January 31, 2009, Plaintiff saw a nurse concerning pain in his right shoulder and
difficulty in controlling his breathing. (Defs’ Ex. 3.)
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The nurse observed no wheezing or shortness of breath in Plaintiff, and no bruising or
dislocation in his right shoulder. (Defs’ Ex. 3.)
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X-rays taken of Plaintiff’s right shoulder on February 19, 2009, were negative for acute
displaced fracture or dislocation. (Defs’ Ex. 4.)
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On March 10, 2009, Plaintiff was notified that the x-ray results were within normal
limits and no physician follow up was required. (Defs’ Ex. 5.)
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On April 1, 2009, an inmate told Defendant Knight that Plaintiff had shown him an
affidavit and threatened him with physical harm if he didn’t sign it. (Knight Dec. ¶ 21.)
Plaintiff’s assertion that Defendant Knight lied, without more, is not sufficient to raise a
genuine dispute of material fact.
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As a result of information provided by the inmate, Defendant Knight issued a Rules
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Violation Report to Plaintiff, charging him with threatening an inmate, and resulting in Plaintiff’s
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placement in administrative segregation pending an investigation of the charge. (Knight Dec. ¶ 22.)
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On April 3, 2009, after Plaintiff had been placed in administrative segregation, another
inmate approached Defendant Knight with information that Plaintiff had pressured the inmate to sign
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an affidavit falsely stating that the inmate had witnessed an officer assault Plaintiff. (Knight Dec. ¶
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23.)
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Plaintiff admits that another inmate came forward, but denies pressuring the inmate. Plaintiff’s
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denial of the accusation and citation to the declaration of Inmate Elmore do not provide competent
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evidence to raise a genuine dispute of fact that an inmate approached Defendant Knight with
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information.
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26.
On April 9, 2009, Defendant Knight prepared a confidential memorandum to Captain
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Cronjager, including statements signed by the two inmates providing the information concerning
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Plaintiff’s attempts to coerce or threaten them into signing false affidavits. (Knight Dec. ¶ 24.)
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Although Plaintiff denies that he attempted to coerce or threaten inmates to sign affidavits, this
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does not raise a genuine dispute of material fact regarding the preparation of the confidential
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memorandum or the contents of the memorandum.
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27.
Occasionally, the evidence used to support a disciplinary charge against an inmate is
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confidential information from a source (typically, another inmate) whose identity, if disclosed, would
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put into jeopardy the informant’s safety and the security of the institution. (Declaration of Akin
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(“Akin Dec.”) ¶ 3.)
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When confidential information from an inmate is the basis for the disciplinary charge,
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the confidential information itself (usually in the form of a memorandum or chrono stating the
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information, the identity of the confidential source, and the circumstances from which the information
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was obtained) is not given to the inmate. (Akin Dec. ¶ 4.)
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29.
Instead of providing the confidential information to the inmate, the inmate is given a
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Confidential Information Disclosure (Form CDC 1030) that indicates that (1) receipt of confidential
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information that has been considered in the disciplinary charge, (2) the reasons that the information is
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considered reliable, (3) as much of the confidential information that can be disclosed without
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identifying its source, and (4) the reason why the source of the confidential information cannot be
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disclosed. (Akin Dec. ¶ 5.)
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30.
When a disciplinary charge was based on confidential information, the responsibilities
of the hearing officer for the disciplinary charge included assuring that the Confidential Disclosure
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form given to the inmate in lieu of the confidential document itself contained sufficient information to
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apprise the inmate of the nature of the evidence that would be used against him, and that the
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confidential information met the criteria for reliability set forth in title 15, section 3321 of the
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California Code of Regulations. (Akin Dec. ¶ 6.)
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31.
Evidence from confidential informants that did not meet the criteria in section 3321
would not be considered in deciding a disciplinary charge against an inmate. (Akin Dec. ¶ 7.)
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On May 20, 2009, Lieutenant Akin was the hearing officer for the disciplinary charge
against Plaintiff for making threats against an inmate. (Akin Dec. ¶ 8.)
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The evidence supporting the charge against Plaintiff consisted of only confidential
information from two inmates. (Akin Dec. ¶ 9.)
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Lt. Akin reviewed the information provided by the confidential sources and noted that
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the Confidential Disclosure forms did not supply Plaintiff with enough information to ensure his due
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process rights. (Akin Dec. ¶ 10.)
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35.
In addition, Lt. Akin was not satisfied that the confidential information met the criteria
for reliability set forth in section 3321(c). (Akin Dec. ¶ 11.)
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Because Lt. Akin determined that the Confidential Disclosure forms were deficient and
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the confidential information did not meet the criteria for reliability, he was unwilling to consider the
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confidential information in deciding the disciplinary charge against Plaintiff. (Akin Dec. ¶ 12.)
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37.
Because the disciplinary charge against Plaintiff was based solely on the confidential
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information, once Lt. Akin discarded that evidence, no evidence remained to support the charge.
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(Akin Dec. ¶ 13.)
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38.
Absent any evidence to support the charge against Plaintiff, Lt. Akin found him not
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guilty, dismissed the charge, and ordered that the Rules Violation Report be removed from his central
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file. (Akin Dec. ¶ 14.)
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39.
In rejecting the confidential information in Plaintiff’s disciplinary hearing, Lt. Akin
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made no finding on the veracity of the confidential information; the confidential information may have
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been true, but it did not comport with regulatory requirements. (Akin Dec. ¶ 15.)
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40.
None of the information Lt. Akin reviewed for Plaintiff’s disciplinary hearing
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suggested that the confidential information was fabricated or misrepresented by the informants or
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Defendant Knight, who first obtained and reported the information. (Akin Dec. ¶ 16.)
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Defendant Clark
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41.
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In 2009, Defendant Clark was the Warden at SATF in Corcoran, California.
(Declaration of Clark (“Clark Dec.”) ¶ 2.)
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Among Defendant Clark’s primary responsibilities as SATF’s Warden were overseeing
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the daily operations; assuring the security of the institution and the safety of staff, and preparing the
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budget. (Clark Dec. ¶ 3.)
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43.
As SATF’s Warden, two Chief Deputy Wardens, each of whom were responsible for
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different parts of the institution, and an Administrative Assistant, reported directly to Defendant Clark;
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seven to eight Associate Wardens reported to one or other of the two Chief Deputy Wardens. (Clark
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Dec. ¶ 4.)
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44.
As SATF’s Warden, Clark did not customarily receive or respond to letters or other
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written communications from inmates or their family members concerning issues they had with prison
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conditions or complaints about SATF’s staff, even when such communications were addressed to him.
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(Clark Dec. ¶ 5.)
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Plaintiff attempts to dispute this statement by claiming that Defendant Clark was informed by
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Plaintiff and his mother. (Ex. B to ECF No. 48.) The declaration of Plaintiff’s mother states,
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“Defendant Clark was informed on March 2009 of defendant (S. Knight) assault on my son and
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harassment, and refusing to give my son (television).” (ECF No. 48, p. 27, ¶ 4.) Defendants object
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based on lack of personal knowledge. Fed. R. Evid. 602. Defendants’ objection is SUSTAINED.
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This is a conclusory statement lacking foundation and personal knowledge. As such, this statement is
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not competent evidence sufficient to raise a genuine dispute of fact.
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Plaintiff’s declaration states that “Defendant Clark (Warden) had knowledge of Knight’s
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threats and harassment prior to Knight excessive force attack.” (ECF No. 48, p. 30, ¶ 7.) Defendants’
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object based on lack of personal knowledge. Fed. R. Evid. 602. Defendants’ objection is
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SUSTAINED. This statement is conclusory and lacks both foundation and personal knowledge.
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Plaintiff further declares, “Plaintiff’s mother has call Defendant Clark in reference to
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Defendant S. Knight threats and harassment on Plaintiff.” (ECF No. 48, p. 31, ¶ 15.) Defendants’
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again object based on lack of personal knowledge. Fed. R. Evid. 602. Defendants’ objection is
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SUSTAINED. Plaintiff’s statement lacks foundation, lacks personal knowledge, provides no
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information regarding the date of the call or whether Plaintiff’s mother spoke to Defendant Clark
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directly, and is not supported by the declaration of his mother. Plaintiff’s declaration does not
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provide evidence to raise a genuine dispute.
45.
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When Defendant Clark was SATF’s Warden, his Administrative Assistant customarily
reviewed each letter or other written communication addressed to him from inmates or their family
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members and, if she found that a response was appropriate, would forward the writing to the Facility
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Captain where the concerned inmate was housed with a request that the Captain respond to the inmate
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or family member who authored the letter or other writing. (Clark Dec. ¶ 6.)
46.
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Based on Defendant Clark’s custom and practice, he would not have personally
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received, reviewed, or responded to, any letters from Plaintiff or his family members in 2009 or any
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time that he served as SATF’s Warden. (Clark Dec. ¶ 7.)
Plaintiff claims that Defendant Clark was placed on notice and cites pages 4 and 5 of Exhibit
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A. Page 5 of Exhibit A is a letter to Plaintiff from Stephen Smith, an Administrative Assistant, dated
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March 10, 2009. Mr. Smith stated that the letter was “written in response to a recent letter, addressed
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to Warden Clark, which ha[d] been forwarded to [him] for response.” (ECF No. 48, p. 21.) This
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evidence does not raise a genuine dispute regarding Defendant Clark’s custom and practice. It also
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does not demonstrate that Defendant Clark was “on notice” as the letter does not indicate that
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Defendant Clark received the letter and personally forwarded it to Mr. Smith.
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III.
Discussion
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A. Excessive Force
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Plaintiff claims that Defendant Knight used excessive force in violation of the Eighth
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Amendment when Defendant Knight pushed Plaintiff into a cell frame on January 28, 2009.
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The relevant inquiry for this claim is “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian,
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503 U.S. 1, 6-7, 112 S. Ct. 995, 998 (1992); Whitley v. Albers, 475 U.S. 312, 320, 106 S. Ct. 1078,
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1085 (1986). In making this determination, the court may evaluate “the need for the application of
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force, the relationship between the need and the amount of force that was used, [and] the extent of
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injury inflicted.” Whitley, 475 U.S. at 321, 106 S. Ct. at 1085; Marquez v. Gutierrez, 322 F.3d 689,
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692 (9th Cir. 2003).
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However, “not every malevolent touch by a prison guard gives rise to a federal cause of
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action.” Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 1178 (2010) (quoting Hudson, 503 U.S.
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at 9, 112 S. Ct. at 1000). The Eighth Amendment’s prohibition of cruel and unusual punishments
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“necessarily excludes from constitutional recognition de minimis uses of physical force, provided that
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the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 37-38. “An inmate
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who complains of a push or shove that causes no discernible injury almost certainly fails to state a
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valid excessive force claim.” Id. at 38.
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Here, the parties dispute whether Defendant Knight pushed Plaintiff into the cell frame.
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However, even if the Court assumes that Defendant Knight pushed Plaintiff into the cell frame, the
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Court finds that the amount of force was de minimis and does not rise to the level of a constitutional
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violation. At best, Defendant Knight pushed Plaintiff a single time, which did not result in bruising or
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other discernible injury. (UMF 19-21.) Plaintiff’s assertion that he suffered injury by reference to
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pain medication and his shoulder popping out of place does not raise a genuine dispute of material
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fact. (ECF No. 48, p. 1.) Plaintiff does not provide medical records supporting his assertions; the
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available medical records identify only a one-time prescription for Ibuprofen and the absence of any
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physical injury to Plaintiff’s shoulder. (Defs’ Ex. 3.) Plaintiff also contends that he endured mental
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pain and suffering as a result of the incident, but Plaintiff’s psychiatric records do not support this
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contention. Rather, according to the records, Plaintiff’s psychiatric complaints stemmed from his
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purported loss of property. (Ex. A to ECF No. 48, p. 16.)
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The Court therefore concludes that the single push by Defendant Knight, which did not result
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in injury, fails to rise to the level of an Eighth Amendment violation. See, Wilkins, 559 U.S. at 38,
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Hudson, 503 U.S. at 9; see also Washington v. Duncan, 2011 WL 2020703, *2 (N.D. Cal. May 2,
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2011) (inmate pushed a single time against a chain-link fence, resulting only in a scratch or abrasion,
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did not rise to the level an Eighth Amendment violation). Defendants’ motion for summary judgment
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shall be granted on Plaintiff’s Eighth Amendment claim against Defendant Knight.
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B. Retaliation
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Plaintiff claims that Defendant Knight retaliated against him by filing a false Rule Violation
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Report.
Within the prison context, a viable claim of First Amendment retaliation consists of five
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elements: “(1) An assertion that a state actor took some adverse action against an inmate (2) because
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of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his
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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”
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Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108,
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1114 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
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A plaintiff suing for retaliation under section 1983 must allege that “he was retaliated against
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for exercising his constitutional rights and that the retaliatory action does not advance legitimate
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penological goals, such as preserving institutional order and discipline.” Barnett v. Centoni, 31 F.3d
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813, 816 (9th Cir. 1994). The plaintiff does not need to show actual inhibited or suppressed speech,
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but that there was a chilling effect upon his speech. Rhodes, 408 F.3d at 569. The burden is on the
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plaintiff to plead and prove the absence of any legitimate correctional goals for the alleged conduct.
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Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
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Plaintiff has not raised a genuine dispute of material fact sufficient to withstand summary
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judgment on his claim of retaliation against Defendant Knight. As indicated by Defendants, Plaintiff
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has established only two of the five elements necessary for his retaliation claim. The undisputed
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evidence establishes that Defendant Knight took an adverse action against Plaintiff by charging him
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with a rule violation and Plaintiff engaged in protected conduct by filing a complaint about Defendant
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Knight’s treatment.
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However, Plaintiff has not established the required element that the adverse action was taken
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because of Plaintiff’s protected conduct. Although the timing of the incidents can properly be
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considered as circumstantial evidence of retaliatory intent, see, e.g., Soranno’s Gasco, Inc. v. Morgan,
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874 F.2d 1310, 1316 (9th Cir.1989), there is no additional evidence to raise a genuine dispute
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regarding the motive for the Rule Violation Report. Plaintiff has not submitted any admissible
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evidence to raise a genuine dispute of fact regarding Defendant Knight’s declaration that he received a
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report from an inmate that Plaintiff had shown the inmate an affidavit and threatened the inmate with
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physical injury if he did not sign it and that Defendant Knight submitted the Rules Violation Report
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for this reason. (UMF 23-24.) Plaintiff claims that Defendant Knight lied in the report, but does not
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provide any evidentiary support. (ECF No. 48, p. 30, ¶ 6) (“Defendant Knight lied in Rule Violation
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Report 115 by first claiming threaten his informant’s [sic] then changing plaintiff threaten inmates in
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report (Elmore) and (Robbins) to sign affidavit.”) Plaintiff’s declaration is devoid of any statement
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under penalty of perjury that he did not threaten or pressure any inmates to sign an affidavit.
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Plaintiff believes that dismissal of the disciplinary charge supports his claim and defeats
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summary judgment. Plaintiff’s belief is unsupported. Although the undisputed evidence reflects that
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Lt. Akin dismissed the charge because he was not satisfied that the information met the criteria for
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reliability, Lt. Akin made no finding on the veracity of the confidential information. (UMF 39.)
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Plaintiff has not created a triable issue concerning the motive for the actions of Defendant Knight.
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As a final matter, in his opposition, Plaintiff has not disputed the Defendants’ position
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regarding the remaining elements of his retaliation claim. Specifically, Plaintiff has not disputed that
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charging an inmate with a rules violation for threatening inmates serves the legitimate prison goal of
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preventing conflict and violence among prisoners. Plaintiff also does not argue that his rights were
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chilled by Defendant Knight’s disciplinary charge against him.
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For these reasons, Defendants’ motion for summary judgment shall be granted on Plaintiff’s
First Amendment retaliation claim against Defendant Knight.
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C. Failure to Protect Claim
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Plaintiff contends that Defendant Clark failed to protect Plaintiff in violation of the Eighth
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Amendment. A prison official may be held liable under the Eighth Amendment “only if he knows that
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inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable
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measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). “[T]he official must be both
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aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,
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and he must also draw the inference. Id. at 837.
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Plaintiff alleges that Defendant Clark failed to protect him from staff misconduct by Defendant
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Knight after Plaintiff and his mother had communicated with Defendant Clark. However, the
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undisputed evidence reflects that Defendant Clark did not personally receive or respond to
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communications from inmates or their families. (UMF 44-45.) Based on his custom and practice, he
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would not have personally reviewed, or responded to any letters from Plaintiff or his family members.
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(UMF 46.)
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Plaintiff has not presented any competent evidence to raise a genuine dispute that Defendant
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Clark received any written or oral communications from Plaintiff or his mother. Neither Plaintiff nor
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his mother attests to direct communications with Defendant Clark. As discussed above, Plaintiff’s
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mother declared that “Defendant Clark was informed on March 2009 of defendant (S. Knight) assault
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on my son and harassment, and refusing to give my son (television).” (ECF No. 48, p. 27, ¶ 4.)
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Similarly, Plaintiff declared that “Defendant Clark (Warden) had knowledge of Knight’s threats and
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harassment prior to Knight excessive force attack.” (ECF No. 48, p. 30, ¶ 7.) Plaintiff also declares
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that “Plaintiff’s mother has call Defendant Clark in reference to Defendant S. Knight threats and
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harassment on Plaintiff.” (ECF No. 48, p. 31, ¶ 15.) These statements are not based on personal
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knowledge or corroborated by other evidence. Instead, they are conclusory assertions and do not raise
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a genuine dispute of fact sufficient to defeat summary judgment. Rivera v. Nat'l R.R. Passenger
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Corp., 331 F.3d 1074, 1078 (9th Cir.2003) (“Conclusory allegations unsupported by factual data
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cannot defeat summary judgment.”).
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Plaintiff attempts to support his claim that Defendant Clark was on notice by reference to a
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letter that he received from Stephen Smith. (ECF No. 48, Ex. A.) Mr. Smith stated that the letter was
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“written in response to a recent letter, addressed to Warden Clark, which ha[d] been forwarded to
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[him] for response.” (ECF No. 48, p. 21.) At best, this statement in the letter supports Defendant
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Clark’s position that he did not personally respond to letters. It does not establish that Defendant
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Clark personally received the letter or that he was on notice of any action by Defendant Knight.
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In sum, Plaintiff has failed to raise a triable issue of fact demonstrating that Defendant Clark
knew of any risk of harm to Plaintiff from Defendant Knight and failed to protect Plaintiff from such
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harm. Accordingly, Defendants’ motion for summary judgment shall be granted on Plaintiff’s Eighth
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Amendment claim against Defendant Clark.
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IV.
Conclusion and Order
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For the reasons discussed above, IT IS HEREBY ORDERED as follows:
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1. Defendants’ motion for summary judgment, filed on August 10, 2012, is GRANTED; and
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2. The Clerk of the Court is directed to enter summary judgment in favor of Defendants
Knight and Clark and close this file.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
December 19, 2013
A. McAuliffe
_
UNITED STATES MAGISTRATE JUDGE
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