Johnson v. Cate et al

Filing 124

FINDINGS and RECOMMENDATIONS to: Deny Plaintiff's 64 Motion for Summary Judgment, Grant Defendant Doran's 100 Cross-Motion for Summary Judgment, Grant, In Part, and Deny, In Part, Plaintiff's 113 Motion for Judicial Notice, Deny Defendant's Motions to Strike and Plaintiff's Notice of Errata ( 116 , 119 , 121 ), signed by Magistrate Judge Michael J. Seng on 3/19/2015, referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARRISON JOHNSON,
Plaintiff,

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v.

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FINDINGS AND RECOMMENDATIONS
TO:
DENY PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT

CATE, et al.,

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Case No. 1:10-cv-02348-LJO-MJS

Defendants.

(ECF NO. 64)
GRANT DEFENDANT DORAN’S CROSSMOTION FOR SUMMARY JUDGMENT

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(ECF NO. 100)
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GRANT, IN PART, AND DENY, IN PART,
PLAINTIFF’S MOTION FOR JUDICIAL
NOTICE

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(ECF NO. 113)
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DENY DEFENDANT’S MOTIONS TO
STRIKE AND PLAINTIFF’S NOTICE OF
ERRATA

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(ECF NOS. 116, 119, 121)
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FOURTEEN (14) DAY OBJECTION
DEADLINE

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26 I.

PROCEDURAL HISTORY

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Plaintiff is a state prisoner proceeding pro se in this civil rights action brought

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Amended Complaint against Defendant Doran on a Fourteenth Amendment Equal
Protection claim. (ECF Nos. 8 & 9.)

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Before the Court are Plaintiff’s June 16, 2014 motion for summary judgment
(ECF No. 64.) and Defendant Doran’s December 2, 2014 cross-motion for summary
judgment (ECF No. 100.). Both parties filed oppositions and replies. (ECF Nos. 100,
112, & 116.) Plaintiff filed a request for judicial notice of certain exhibits and a notice of
errata. (ECF Nos. 113 & 119.) Defendant objected to and moved to strike a number of
Plaintiff’s declarations. (ECF Nos. 116 & 121.) Plaintiff responded to these objections.
(ECF Nos. 120 & 122.) The matters are deemed submitted. Local Rule 230(l).
II.

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT
Any party may move for summary judgment, and “[t]he [C]ourt shall grant

summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Each party’s position, whether it be that a fact is disputed or undisputed, must be
supported by (1) citing to particular parts of materials in the record, including but not
limited to depositions, documents, declarations, or discovery; or (2) “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the fact.” Fed R. Civ.
P. 56(c)(1).
“Where the moving party will have the burden of proof on an issue at trial, the
movant must affirmatively demonstrate that no reasonable trier of fact could find other
than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007). If the burden of proof at trial rests with the nonmoving party, then the
moving party need only point to “an absence of evidence to support the nonmoving
party’s case.” Id. Once the moving party has met its burden, the nonmoving party must
point to "specific facts showing that there is a genuine issue for trial." Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
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In evaluating the evidence, “the [C]ourt does not make credibility determinations
or weigh conflicting evidence,” and “it draws all inferences in the light most favorable to
the nonmoving party.” Id.
III.

FACTUAL BACKGROUND
The Court finds the following relevant facts are undisputed:
Plaintiff was an inmate at Kern Valley State Prison (“KVSP”) from February 2009

until October 2012. He currently is an inmate at California State Prison – Los Angeles
County. Defendant K. Doran was the Inmate Assignments Lieutenant at KVSP during
the relevant time period.

Defendant’s position required her to ensure that inmate

assignments were filled and ethnically balanced.
Prior to an inmate receiving a job, he is placed on the eligibility waiting list. When
positions become available, Defendant reviews a computer printout of eligible inmates.
Defendant selects the first available inmate for the position.

requested another assignment, then Defendant will select the next eligible inmate for
the position.

If no eligible inmates are on the waiting list, the supervisor for the

assignment may hire someone for the position. Once an inmate is assigned a job, he is
removed from all waiting lists except for Education or Vocational positions.
Plaintiff held a porter job while at KVSP. Plaintiff was never on the waiting list to
become a library clerk between 2009 and 2012.

Defendant’s only interaction with

Plaintiff related to Plaintiff’s CDCR Form 602 grievance in which he requested that
inmate clerks in the C-Facility library be racially balanced.

Defendant denied the

grievance, informing Plaintiff that there were currently no vacant clerk positions, that she
could not un-assign a current inmate to the position non-adversely, and that when a
position opened, she would see if the African American inmate on the waiting list met
the requirements.

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If that inmate has

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IV.

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A.

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DISCUSSION
Equal Protection

The Equal Protection Clause of the Fourteenth Amendment requires that persons
who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 439 (1985). An equal protection claim may be established in two ways.
The first method requires a plaintiff to show that the defendant has intentionally
discriminated against the plaintiff on the basis of the plaintiff's membership in a
protected class. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.
2001); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (“Intentional
discrimination means that a defendant acted at least in part because of a plaintiff’s
protected status.”). Under this theory of equal protection, the plaintiff must show that
the defendant's actions were a result of the plaintiff's membership in a suspect class,
such as race, religion, or alienage. Ball v. Massanari, 254 F.3d 817, 823 (9th Cir.
2001).
If the action in question does not involve a suspect classification, a plaintiff may
establish an equal protection claim by showing that similarly situated individuals were
intentionally treated differently without a rational relationship to a legitimate state
purpose. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San Antonio Indep.
Sch. Dist. v. Rodriguez, 411 U.S. 1, 40 (1973); SeaRiver Mar. Fin. Holdings, Inc. v.
Mineta, 309 F.3d 662, 679 (9th Cir. 2002). To state an equal protection claim under this
theory, a plaintiff must allege that: (1) the plaintiff is a member of an identifiable class;
(2) the plaintiff was intentionally treated differently from others similarly situated; and (3)
there is no rational basis for the difference in treatment. Willowbrook, 528 U.S. at 564.
1.

Parties’ Arguments

Defendant argues that Plaintiff does not have standing to state an Equal
Protection claim because he has failed to prove an actual injury. Plaintiff never applied
for a law library clerk position. He stated that he did not want the assignment and did
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not want to be on the waitlist. As a “Pre-Transfer” designee (meaning he was soon to
be transferred out of KVSP) he was not eligible for that position. Plaintiff’s race was
never a factor in any of these matters. Plaintiff has not proven Defendant acted with
discriminatory intent or purpose.
Plaintiff contends his grievance requesting that an African American be assigned
to the library clerk position implied he wanted the position, and as such he has standing.
Plaintiff disputes that his Pre-Transfer status prevented him from becoming a library
clerk, but argues that even if it did, he was removed from that status in January 2010,
and never placed on the clerk waitlist or given the position. Finally, Plaintiff argues that
no black inmates worked in the law library from November 8, 2009 to 2012, and
Defendant’s failure to provide a legitimate penological explanation for this fact
demonstrates her discriminatory intent.
2.

Analysis

Plaintiff lacks standing to state an Equal Protection claim.
At a bare minimum, standing requires that Plaintiff Ashow that [he] suffered an
injury in fact, there was a causal connection between the injury and the conduct
complained of, and the injury is likely to be redressed by a favorable decision.” Davis v.
Yageo Corp., 481 F.3d 661, 673 (9th Cir. 2007) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)).
Plaintiff concedes that an inmate would need to be on the eligibility waiting list in
order to receive a library clerk position and that he was not on the list during the
relevant time period. Plaintiff has not demonstrated that he personally was injured by
the lack of African American library clerks or that Defendant denied him an available
position or a position on the waiting list.
Even if Plaintiff’s grievance could be construed as a request for the position or to
be placed on the waiting list, which Defendant disputes, neither of these results was
available. There were no vacant positions at the time, and Plaintiff does not dispute that
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he held a porter job while at KVSP and that inmates with a job assignment are removed
from all waiting lists except for Education or Vocational positions.
The Court therefore recommends that Plaintiff’s motion for summary judgment be
DENIED and Defendant’s cross-motion for summary judgment be GRANTED.
B.

Mental and Emotional Distress

Defendant argues that Plaintiff is not entitled to damages for mental or emotion
injuries because he has not proven a physical injury.

See 42 U.S.C. § 1997e(e).

Plaintiff agrees that he has not suffered any physical injury but contends that he
nonetheless would be entitled to compensatory damages for the violation of his
constitutional rights.
As discussed above, Plaintiff has not suffered any injury. Therefore, he is not
entitled to damages.
C.

Injunctive Relief

Defendant argues that Plaintiff is not entitled to injunctive relief because he no
longer is an inmate at the prison where she works and there is no evidence that he will
return to that facility. Plaintiff does not respond to this argument.
It is undisputed that Plaintiff is no longer housed at KVSP, rendering moot
injunctive relief against Defendant. See Preiser v. Newkirk, 422 U.S. 395, 402-03
(1975); see also Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). Exposure to
past harm is not a basis for injunctive relief. See City of Los Angeles v. Lyons, 461 U.S.
95, 101–02 (1983) (“[p]ast exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” (quotations and citation omitted)).
D.

Qualified Immunity

Defendant argues that she should be granted qualified immunity because she did
not violate Plaintiff’s constitutional rights and acted reasonably under the circumstances.
Plaintiff argues that Defendant Doran is not immune from liability because there is
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evidence that she violated his constitutional rights.

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Government officials enjoy qualified immunity from civil damages unless their
conduct violates “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
In ruling upon the issue of qualified immunity, one inquiry is whether, “[t]aken in the light
most favorable to the party asserting the injury, do the facts alleged show the
[defendant's] conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201
(2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009) (“Saucier
procedure should not be regarded as an inflexible requirement”). The other inquiry is
“whether the right was clearly established.” Id. The inquiry “must be undertaken in light
of the specific context of the case, not as a broad general proposition . . . .” Id. “[T]he
right the official is alleged to have violated must have been ‘clearly established’ in a
more particularized, and hence more relevant, sense: The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Id. at 202 (citation omitted). In resolving these issues, the Court
must view the evidence in the light most favorable to Plaintiff and resolve all material
factual disputes in favor of Plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir.
2003).

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

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Qualified immunity protects “all but the plainly incompetent or those who

Given the Court’s recommendation that Defendant’s motion for summary
judgment be granted, the Court need not address the issue of qualified immunity.
V.

MOTION FOR JUDICIAL NOTICE
In relation to his opposition to Defendant’s cross-motion for summary judgment

and his reply to his motion for summary judgment, Plaintiff asks the Court to take
judicial notice of four exhibits: three different sections of the California Code of
Regulations and a KVSP Post Order regarding inmate assignments. (ECF No. 113.)
Defendant did not respond to the request.
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Federal Rule of Evidence 201 authorizes the Court to take notice of facts that
are “not subject to reasonable dispute because . . . [they] can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned. Fed. R.
Evid. 201(a)-(b)(2).

This authority includes laws, city ordinances, and opinion

letters. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022,
1025 n.2 (9th Cir. 2006). The Court did not consider or find relevant the California
Code sections in Exhibits B and C, and therefore the Court declines to take judicial
notice of those documents. The Court takes judicial notice of Exhibits A and D, which
discuss the process for filling vacant paid inmate assignments and the duties and
responsibilities of an inmate assignment Lieutenant.
VI.

MOTIONS TO STRIKE
Plaintiff submitted a declaration with his opposition to Defendant’s cross-motion

for summary judgment and reply to his motion for summary judgment. (ECF No. 112.)
Defendant objects and moves to strike paragraphs 11, 13, 14, 15, and 16 of Plaintiff’s
declaration on grounds that: 1) whether anyone informed Plaintiff that he was qualified
to be on the clerk’s waiting list is irrelevant given there were no vacant positions at the
time of Plaintiff’s grievance; 2) Plaintiff’s synopsis of what other inmates would testify to
at trial is inadmissible hearsay; and 3) Plaintiff lacks personal knowledge of the fact that
there were available clerk positions in 2010, that Defendant failed to fill them with an
African American, and that she began excluding African American’s from the library
after a sexual misconduct and racketeering incident. (ECF No. 116.)
Plaintiff responds that: 1) whether anyone informed him that he qualified to be on
the clerk’s waiting list disputes Defendant’s contention that he was required to request
placement on the list; 2) he has now attached a declaration from one of the inmates
who plans to testify along with his own declaration in support of the other inmate’s
proposed testimony; and 3) he has personal knowledge of the other facts as evidenced
by one of his fellow inmate’s attached affidavits and the exhibits attached to his
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opposition to Defendant’s motion for summary judgment.

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On January 30, 2015, Plaintiff filed a Notice of Errata, requesting that two
additional declarations be considered in support of his opposition to Defendant’s motion
for summary judgment and correcting the inmate ID number for inmate Burch who
submitted one of the declarations on behalf of Plaintiff. (ECF No. 119.) Defendant
objects to the evidence as irrelevant, inadmissible character evidence, inadmissible
hearsay, and not based on personal knowledge. (ECF No. 121.) Plaintiff responds that
the declarations are evidence of Defendant’s discriminatory intent, that they are
admissible to show plan or design, and that they are made on the personal knowledge
of what he witnessed and what inmate Burch heard inmate Braggs tell him. (ECF No.
122.)

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None of these declarations are relevant to the issue of Plaintiff’s standing in the
case, which is the basis for the Court’s recommendation to grant Defendant’s crossmotion for summary judgment and deny Plaintiff’s motion for summary judgment.
Plaintiff concedes that he was required to be on a waitlist to be considered for the library
clerk position, and that he was never on such a waitlist. Defendant’s objections are well
taken but the declarations have no bearing on these undisputed facts. Therefore, the
Court recommends that Defendant’s motions and Plaintiff’s notice of errata be DENIED
as unnecessary.
VII.

CONCLUSION AND RECOMMENDATIONS
The Court finds that there is no genuine issue of material fact as to Defendant

Doran’s liability.

Based on the foregoing, the Court HEREBY RECOMMENDS that

Defendant’s cross-motion for summary judgment (ECF No. 100.) be GRANTED and
Plaintiff’s motion for summary judgment (ECF No. 64.) be DENIED.
The Court also recommends that Plaintiff’s motion for judicial notice of Exhibits A
and D to his motion (ECF No. 113) be GRANTED and Exhibits B and C be DENIED.

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Finally, the Court recommends Defendant’s motions to strike and Plaintiff’s notice
of errata be DENIED. (ECF Nos. 116, 119, 121.)

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These Findings and Recommendations are submitted to the United States
District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
Within

fourteen

(14)

days

after

being

served

with

these

Findings

and

Recommendations, any party may file written objections with the Court and serve a
copy on all parties. Such a document should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” Any reply to the objections shall be served
and filed within fourteen (14) days after service of the objections. The parties are
advised that failure to file objections within the specified time may result in the waiver of
rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter
v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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Dated:

March 19, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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