Davis v. Molina et al
Filing
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FINDINGS and RECOMMENDATIONS regarding Defendant's Motion for Summary Judgment 52 ; regarding Plaintiff's Motion for Judgment on the Pleadings 48 ; and regarding Defendant's Motion to Strike 66 signed by Magistrate Judge Barbara A. McAuliffe on 3/5/20/18. Referred to Judge Lawrence J. O'Neill; Objections to F&R's due within 14-Days. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHARLES T. DAVIS,
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Plaintiff,
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v.
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
(ECF No. 52)
A. MOLINA,
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Defendant.
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FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION FOR
JUDGMENT ON THE PLEADINGS
(ECF No. 48)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANT’S MOTION TO
STRIKE
(ECF No. 66)
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FOURTEEN DAY OBJECTION DEADLINE
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FINDINGS AND RECOMMENDATIONS
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Case No. 1:14-cv-1554 LJO-BAM (PC)
I.
Introduction
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Plaintiff Charles Davis is a state prisoner currently housed at the California Medical
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Facility in Vacaville, California. Plaintiff, proceeding pro se and in forma pauperis, initially filed
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this action in the Fresno County Superior Court. After it became apparent that Plaintiff was
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proceeding on civil rights claims brought pursuant to 42 U.S.C. § 1983, the action was removed
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to this Court. (ECF Nos. 1, 2). This action currently proceeds against Defendant Correctional
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Officer A. Molina for retaliation in violation of the First Amendment. (ECF Nos. 15, 17.)
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Currently, pending before the Court are Plaintiff’s motion for judgment on the pleadings
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(ECF No. 48); Defendant’s Motion for Summary Judgment (ECF No. 52); Plaintiff’s Opposition
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titled “Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and Plaintiff’s
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Cross-Motion for Summary Judgment or in the Alternative Summary Adjudication as alleged
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herein” (ECF No. 64); and Defendant’s Motion to Strike Plaintiff’s Cross-Motion for Summary
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Judgment as untimely. (ECF No.66).
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Local Rule 230(l).
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II.
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These motions are fully briefed and deemed submitted.
Background
The following summary identifies relevant undisputed facts as agreed to by the parties or
as determined by the Court based on a thorough review of the record.
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Plaintiff is currently housed at the California Medical Facility in Vacaville. He was
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housed at the Pleasant Valley State Prison in Coalinga, California when the events giving rise to
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this action took place.
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Plaintiff alleges that on August 25, 2011, he responded to a medical ducat required under
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Cal. Code of Regs., tit. 15, section 3014, and informed the officer on duty at the medical clinic
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that he did not want to see the doctor that day. (Defs.’ Statement of Undisputed Facts (“Defs.’
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Undisputed Facts”), ECF No. 52-2, ¶ 1). Plaintiff alleges that he was refusing treatment because
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he had previously been hurt by a physician at that clinic and he did not want to have a repeat
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experience. (Plaintiff’s Complaint (“Pl.’s Compl.”) ¶ 1 (ECF No. 2-1), Attachment 3 (Exhibit
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3)). As a result, Plaintiff signed a refusal of treatment form CDC-7225 which was delivered to on-
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duty physician assistant Randolph Wilson (“PA Wilson”).
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Despite Plaintiff’s refusal, PA Wilson ordered Defendant Molina to escort Plaintiff to the
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medical clinic so that PA Wilson could discuss with Plaintiff his refusal for treatment. (Defs.’
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Undisputed Facts ¶ 3). Plaintiff informed Defendant Molina that he had refused medical care,
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that he had turned in a refusal form, and that he did not want to see the doctor or be retained in a
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medical setting. (Pl.’s Compl. ¶ 4-5). Officer Molina reiterated that PA Wilson needed to speak
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with him and began escorting Plaintiff toward the medical clinic (Plaintiff was in a wheelchair).
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See Declaration of A Molina (“Molina Decl.”), at ¶ 5, (Doc. 52-3).
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Plaintiff alleges that
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Defendant Molina threatened him by stating “you can go to the doctor, or I will put the yard
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down; you choose.” (Pl.’s Compl. ¶ p. 5). Although Plaintiff did not physically resist the escort,
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Defendant Molina wheeled Plaintiff in his wheelchair to the medical clinic over Plaintiff’s verbal
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objections.
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On the way to the clinic, Plaintiff stated that he intended to file a staff complaint against
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Defendant Molina for forcing him to undergo medical treatment against his will. (Pl.’s Compl. at
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5).
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complaint by issuing a CDC-128-B chrono (“128-B informational chrono”). Id.
Defendant Molina responded that if Plaintiff filed a complaint, he would also write a
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Once the parties arrived at the medical clinic, PA Wilson met Plaintiff at the front door,
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and requested that Plaintiff follow him into his office. Plaintiff then wheeled himself to PA
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Wilson’s office. He apparently had his consult with PA Wilson and left the clinic on his own
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accord. Molina Decl. ¶ 9.
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Several hours later, at approximately 11:30 a.m., Plaintiff returned to the clinic and
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requested Defendant Molina’s name. Defendant Molina provided his name and, at the same time,
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told Plaintiff that he would be preparing a 128 informational chrono to document the incident.
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Molina Decl. ¶ 10. Plaintiff responded by stating “Oh, retaliation. I’ll write you up for that too.
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I’ll add that to my complaint.” Later that day, Defendant Molina prepared a 128-B informational
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chrono which included his recollection of the subject incident. (Pl.’s Compl. Exh. 3).
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Plaintiff later filed a formal appeal (staff complaint) about the subject incident. (Pl.’s
Plaintiff’s appeal stated that PA Wilson and Defendant Molina falsely
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Compl., Exh. 1).
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imprisoned Plaintiff in the medical clinic to force unwanted treatment against his will. Plaintiff’s
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appeal was ultimately denied. Plaintiff’s underlying lawsuit followed.
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III.
Defendant’s Motion to Strike Plaintiff’s Motion for Summary Judgment
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In response to Defendant’s motion for summary judgment, Plaintiff filed his opposition
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titled, “Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and Plaintiff’s Cross
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Motion for Summary Judgment or in the Alternative Summary Adjudication as alleged herein”
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(ECF No. 64). Defendant moves to strike Plaintiff’s cross-motion for summary judgment as
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untimely because it was filed on October 30, 2017, over a year after the deadline set by this Court
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for filing dispositive motions in this action. See (ECF No. 66); see also (ECF No. 21) (Discovery
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and Scheduling Order, setting September 18, 2015 as the deadline for filing dispositive motions).
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Defendant is correct that Plaintiff’s motion for summary judgment was untimely filed
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under this Court’s Discovery and Scheduling Order. Accordingly, Defendant’s motion to strike
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will be GRANTED IN PART. Because this Court must liberally construe pro se pleadings, the
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arguments and evidence submitted in support of Plaintiff’s putative cross-motion for summary
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judgment, (ECF No. 30), will be considered in tandem with, and as part of, Plaintiff’s opposition
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to Defendant’s motion for summary judgment.
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IV.
Defendant’s Motion for Summary Judgment
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Defendant’s Argument
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In moving for summary judgment, Defendant Molina argues that the undisputed facts
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establish that he is entitled to judgment as a matter of law because: (1) Defendant’s preparation of
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a 128-B general, informational, chrono does not constitute an adverse action, (2) Defendant had a
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legitimate correctional reason for preparing the chrono, and (3) Defendant is entitled to qualified
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immunity.
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Defendant admits that he issued the 128-B informational chrono in response to Plaintiff’s
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complaints, but Defendant explains that the 128-B issued here was purely informational and does
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not subject Plaintiff to any disciplinary action. According to Defendant, both Title 15 and the
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Department Operations Manual require that all incidents involving the use of force be
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documented and reported. Although incidents involving the use of force are generally
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documented on a Form 837, because Defendant did not use any force on Plaintiff, Defendant used
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a 128-B informational chrono to document his recollection of the incident in the event Plaintiff
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did allege that Defendant used force in transporting Plaintiff to the medical clinic. This was a
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legitimate correctional reason for Defendant’s conduct. Defendant also argues that he is entitled
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qualified immunity as to this retaliation claim.
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Plaintiff’s Opposition
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Plaintiff responds that it is undisputed that Defendant Molina prepared the chrono after
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Plaintiff first informed Defendant Molina that he would be submitting a staff complaint about
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Defendant’s conduct in forcing him to the medical clinic against his wishes. According to
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Plaintiff, Defendant Molina’s explicit statements demonstrate that the issuance of the 128-B
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chrono clearly violated Plaintiff’s exercise of his First Amendment right to participate in the
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grievance process. Notwitstanding Defendant Molina’s omission, Plaintiff also contends that a
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128-B informational chrono does amount to an adverse action because it is considered by the
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Parole Board when making parole decisions.
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III.
LEGAL STANDARD
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Summary judgment is appropriate when the pleadings, disclosure materials, discovery,
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and any affidavits provided establish that “there is no genuine dispute as to any material fact and
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the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is
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one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a
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reasonable [trier of fact] could return a verdict for the nonmoving party.” Id.
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The party seeking summary judgment “always bears the initial responsibility of informing
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the district court of the basis for its motion, and identifying those portions of the pleadings,
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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
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Catrett, 477 U.S. 317, 323 (1986). The exact nature of this responsibility varies depending on
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whether the issue on which summary judgment is sought is one in which the movant or the
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nonmoving party carries the ultimate burden of proof. See Soremekun v. Thrifty Payless, Inc., 509
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F.3d 978, 984 (9th Cir. 2007). If the movant will have the burden of proof at trial, it must
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“affirmatively demonstrate that no reasonable trier of fact could find other than for the moving
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party.” Id. (citing Celotex, 477 U.S. at 323). In contrast, if the nonmoving party will have the
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burden of proof at trial, “the movant can prevail merely by pointing out that there is an absence of
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evidence to support the nonmoving party’s case.” Id.
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If the movant satisfies its initial burden, the nonmoving party must go beyond the
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allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative
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evidence from which a jury could find in [its] favor.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th
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Cir. 2009) (emphasis omitted). “[B]ald assertions or a mere scintilla of evidence” will not suffice
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in this regard. Id.; see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
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574, 586 (1986) (“When the moving party has carried its burden under Rule 56[ ], its opponent
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must do more than simply show that there is some metaphysical doubt as to the material facts.”)
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(citation omitted). “Where the record taken as a whole could not lead a rational trier of fact to find
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for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587
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(quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
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In resolving a summary judgment motion, “the court does not make credibility
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determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, “[t]he
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evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn
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in [its] favor.” Anderson, 477 U.S. at 255. Inferences, however, are not drawn out of the air; the
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nonmoving party must produce a factual predicate from which the inference may reasonably be
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drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d,
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810 F.2d 898 (9th Cir. 1987).
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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
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facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of
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reference to an argument, document, paper, or objection is not to be construed to the effect that
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this Court did not consider the argument, document, paper, or objection. This Court thoroughly
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reviewed and considered the evidence it deemed admissible, material, and appropriate.
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IV.
ANALYSIS
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1.
First Amendment Retaliation
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Prisoners have a clearly established First Amendment right to file grievances against
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prison officials, as well as the right to be free from retaliation for doing so. Watison v. Carter, 668
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F.3d 1108, 1114 (9th Cir. 2012). A violation of these rights is actionable under 42 U.S.C. § 1983.
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Jones v. Williams, 791 F.3d 1023, 1035-1036 (9th Cir. 2015). The elements of a First
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Amendment retaliation claim in the prison context are: (1) the prisoner engaged in protected
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conduct; (2) a state actor took some adverse action against the prisoner; (3) the prisoner’s
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protected conduct was a “substantial factor” or “motivating reason” for the adverse action; (4) the
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adverse action chilled the inmate’s exercise of First Amendment rights; and (5) the adverse action
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did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559,
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567–68 (9th Cir. 2005) (footnote omitted); Brodheim v. Cry, 584 F.3d 1262, 1269-72 (9th Cir.
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2009).
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A.
Adverse Action
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Plaintiff’s claim of retaliation fails because he cannot establish that the “128-B
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informational chrono” issued here constitutes an adverse action. While Plaintiff alleges that a
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128-B chrono is an adverse action because the parole board “does and did rely upon the 128 in an
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adverse manner,” Plaintiff’s evidence from the Board of Parole Hearings Consultation
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demonstrates that the Parole Board only considered Plaintiff’s “14 128-A’s” in its parole
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determination. (ECF No. 64 at 7, Attachment 10). This evidence is therefore insufficient to raise
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a fact question because Plaintiff has failed to produce evidence that an informational “128-B
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chrono,” as opposed to a disciplinary “128-A chrono” negatively affected his consideration for
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release by the Parole Board.
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Defendant presents evidence that the California Department of Correction Manual
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indicates that a 128-B chrono can be used to record information regarding contacts with inmates
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and is filed in the general chrono section of an inmate’s central file (as opposed to the disciplinary
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section). See California Department of Corrections and Rehabilitation Operations Manual
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(“DOM”) § 72010.7.2.
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chronos are not described in the regulations as “discipline.” (ECF No. 52-1 at 5) citing DOM §
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72010.7.1. (describing CDCR Form 128-A chronos as discipline). Defendant thus argues, and the
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Court agrees, that Plaintiff cannot rely on evidence demonstrating the disciplinary nature of a
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“128-A” chrono because the “128-B informational chrono” issued here is not analogous.
Defendant further notes that, unlike a 128-A, 128-B informational
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An adverse action is action that “would chill a person of ordinary firmness” from
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engaging in that activity. Pinard v. Clatskanie School Dist., 467 F.3d 755, 770 (9th Cir. 2006). In
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the prison context, the action taken must be clearly adverse to the plaintiff. See e.g., Rhodes, 408
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F.3d at 568 (noting that arbitrary confiscation and destruction of property, initiation of a prison
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transfer, and assault in retaliation for filing grievances was sufficient to plead an adverse action);
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Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.1995) (reaffirming that an allegation of retaliatory
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prison transfer and double-cell status sufficiently states a claim of retaliation).
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Here, the Parole Hearing Consultation submitted by Plaintiff does not refer to Defendant
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Molina’s 128-B chrono or any other 128-B informational chronos. Rather, the Parole Hearing
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Consultation references only “RVR’s” (Rules Violation Reports) and “128-A” chronos which, as
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explained above, are disciplinary in nature. This Court has held that because 128-B chronos are
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informational and not disciplinary, they do not constitute an adverse action for purposes of a
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prisoner’s retaliation claim. See Masterson v. Killen, No. 1:11-cv-01179, 2017 WL 928710, at
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*11-12 (E.D. Cal. 2017) (granting summary judgment as to the plaintiff’s retaliation claim
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inasmuch as it is based on the issuance of chronos that documented observations and concerns
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about the plaintiff’s conduct because administrative, informational chronos do not constitute an
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adverse action).
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Plaintiff cannot rely on possible parole board considerations because, as this Court has
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recently concluded, a parole board’s consideration of a 128-B general chrono in making a parole
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determination is not a sufficiently adverse act for purposes of retaliation. In Martin v. Desha, this
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Court declined to adopt findings and recommendations that a general chrono could impact parole
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as sufficient at the pleading stage to defeat a motion to dismiss. 2017 WL 1354140, at *2 (E.D.
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Cal. Apr. 13, 2017). Instead, the Court held that there are numerous considerations that go into a
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parole decision and therefore an informational 128-B chrono that had no discernable effects
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would at best be only one of many pieces of information factoring into a parole decision. Id.; cf.
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Nettles v. Grounds, 830 F.3d 922, 934–35 (9th Cir. 2016) (finding that a rules violation was one
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of many pieces of information that the Board of Paroles can review and that the presence or
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absence of a disciplinary infraction compels neither the granting nor the denial of parole); Hall v.
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Tehrani, 2013 U.S. Dist. LEXIS 46026, *14–15, 2013 WL 1326879 (N.D. Cal. Mar. 29, 2013)
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(holding that a psychological evaluation that allegedly contained erroneous facts was not an
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“adverse action” because the Board of Paroles is required to consider many reliable and relevant
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information and the evaluation was not clearly adverse).
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Therefore, the Court agrees with this and other courts in the Ninth Circuit who have
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similarly held that a general chrono does not, by itself, constitute an adverse action for purposes
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of retaliation. See e.g., Jenkins v. Caplan, 2010 U.S. Dist. LEXIS 97767, 2010 WL 3742659, at
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*2 (N.D. Cal. Sept. 16, 2010) (granting summary judgment for defendant where plaintiff failed to
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present evidence that chrono constituted adverse action); Williams v. Woodford, 2009 U.S. Dist.
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LEXIS 105932, 2009 WL 3823916, *3 (E.D. Cal. 2009) (“the alleged filing of the false
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administrative chrono fails to state a claim because it is not a sufficient adverse action for a
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retaliation claim because the chrono was merely informational”); Samano v. Copeland, 2008 U.S.
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Dist. LEXIS 41395, 2008 WL 2168884, *2 (E.D. Cal. 2008) (dismissing retaliation claim for
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failure to state a claim because issuing a counseling chrono did not constitute an adverse action).
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Plaintiff has failed to proffer any evidence to establish that his 128-B informational
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chrono was an adverse action against him. Although he argues that the general chrono was used
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in his parole determination, Plaintiff has not stated any facts to suggest that this chrono had a
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significantly negative impact on his parole. Thus, there is no genuine issue of material fact to
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demonstrate that Defendant Molina’s 128-B chrono was an adverse action against Plaintiff
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sufficient to establish the first element of retaliation.
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B.
Legitimate Correctional Goal
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Although Plaintiff fails to demonstrate that he suffered an adverse action, the Court will
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address whether there was a legitimate correctional reason for Defendant’s conduct, as Defendant
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is entitled to judgment on that ground as well.
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To sustain a retaliation claim, Plaintiff must introduce evidence demonstrating that the
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adverse action taken by defendant “did not reasonably advance a legitimate correctional goal.”
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Rhodes, 408 F.3d at 568. Plaintiff bears the burden of proving the absence of legitimate
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correctional goals for defendant’s challenged conduct. See Pratt, 65 F.3d at 806 (citing Rizzo, 778
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F.2d at 532).
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With respect to the last element of retaliation, Defendant argues that he issued the 128-B
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chrono against Plaintiff for the legitimate correctional goal of accurately reporting and
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documenting an alleged use of force. Although Defendant denies using force, he claims that he
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authored the informational chrono in light of Plaintiff’s possible allegations related to the use of
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force. Defendant further states that, because he is required to document instances of the use of
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force, he prepared the chrono to document what occurred and preserve his recollection of events
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in the chance that there was ever an inquiry into those events. Indeed, Plaintiff later submitted a
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staff complaint against Defendant for using force in escorting him to the medical clinic. An
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inquiry was completed, and it was determined that Defendant had not violated any policy.
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Molina Decl. ¶ 7.
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Plaintiff does not dispute that the regulations require the documentation of force-related
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incidents, but instead argues that Defendant should not be allowed to rely on this regulation to
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escape liability. (Doc. 64 at 16).
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Defendant has submitted undisputed evidence that his issuance of the subject
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informational chrono was motivated by the legitimate correctional goal of accurately recording
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and reporting force-related incidents in real time.
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California Code of Regulations, Defendant had a duty to document incidents involving the use of
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force. Molina Decl. ¶ 7; Cal. Code Regs. tit. § 3268.1(a) (“[e]very staff use of force is an incident
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that shall be reported”). By performing that duty, Defendant transcribed an accurate account of
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the circumstances regarding Plaintiff’s complaint, as was his duty.
The record shows that pursuant to the
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Although Plaintiff disputes Defendant’s motive for issuing the informational chrono,
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Plaintiff does not dispute that the chrono was informational in nature and that it accurately
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documented Plaintiff’s accusation that he was escorted to the medical clinic despite his verbal
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protests. Plaintiff is unable to demonstrate that Defendant’s challenged conduct was “unnecessary
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to the maintenance of order in the institution,” which he must establish in order to prevail.
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Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012). Even if Plaintiff’s evidence
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demonstrates that Defendant may have been motivated in part by frustration with Plaintiff’s
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exercise of First Amendment rights, Plaintiff has failed to meet his burden of demonstrating a
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triable issue of fact as to whether Defendant’s issuance of the informational chrono advanced a
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legitimate correctional goal. Defendant’s evidence demonstrates that his challenged conduct was
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motivated by, and narrowly tailored to achieve, legitimate correctional goals, and that his actions
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were not arbitrary or capricious. Watison, 668 F.3d at 1114-15.
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C.
Summary of Evidence of Retaliation Claim
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In summary, the Court finds that the evidence fails to support a reasonable inference that
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Defendant took an adverse action in preparing the subject chrono and that Defendant’s conduct
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failed to advance a legitimate correctional goal. In the absence of evidence supporting a
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reasonable inference in favor of Plaintiff on each of the five elements of his retaliation claim,
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summary judgment should be granted in favor of Defendant Molina.
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D.
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Defendant also moves for summary judgment on the grounds that he is entitled to
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Qualified Immunity
qualified immunity.
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“The doctrine of qualified immunity protects government officials ‘from liability for civil
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damages insofar as their conduct does not violate clearly established statutory or constitutional
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rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,
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231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,
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102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)).
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The Supreme Court has “mandated a two-step sequence for resolving government
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officials' qualified immunity claims.” Pearson, 555 U.S. at 232, citing Saucier v. Katz, 533 U.S.
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194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). “First, a court must decide whether the facts that
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a plaintiff has alleged...make out a violation of a constitutional right.” Id. (citing Saucier, 533
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U.S. at 201). This prong of the inquiry “mirrors the substantive summary judgment decision on
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the merits.” See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). “If no constitutional right
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would have been violated were the allegations established,” then the officer is entitled to qualified
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immunity. Saucier, 533 U.S. at 201.
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“Second, if the plaintiff has satisfied this first step, the court must decide whether the right
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at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson, 555
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U.S. at 232. At step two, “the relevant, dispositive inquiry in determining whether a right is
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clearly established is whether it would be clear to a reasonable officer that his conduct was
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unlawful in the situation he confronted.” Saucier, 533 U.S. at 202.
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Because Defendant did not violate Plaintiff’s constitutional rights, no further discussion of
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qualified immunity is warranted.
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V.
Plaintiff’s Motion for Judgment on the Pleadings
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Plaintiff filed a Motion for Judgment on the Pleadings on the grounds that Defendant
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Molina admitted that the decision to issue the 128-B informational chrono was because of
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Plaintiff’s decision to file a staff complaint. Plaintiff argues that this admission entitles him to
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judgment in his favor.
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A plaintiff may bring a Rule 12(c) motion for judgment on the pleadings if defendant’s
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answer fails to controvert material facts alleged in the complaint. Plaintiff’s motion cannot be
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granted if the answer raises a fact or an affirmative defense that, if true, would defeat recovery.
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General Conference Corp. of Seventh–Day Adventists v. Seventh–Day Adventist Congregational
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Church, 887 F.2d 228, 230 (9th Cir.1989). “A plaintiff is not entitled to judgment on the
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pleadings when the answer raises issues of fact that, if proved, would defeat recovery. Similarly,
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if the defendant raises an affirmative defense in his answer it will usually bar judgment on the
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pleadings.” General Conference Corp. of Seventh–Day Adventists, 887 F.2d at 230, citing 5 C.
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Wright & A. Miller, Federal Practice and Procedure § 1368 (1969).
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In light of the recommendation that Defendant’s Motion for Summary Judgment be
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granted, the Court further recommends that Plaintiff’s Motion for Judgment on the Pleadings
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(ECF No. 48), which seeks a determination of the merits of this case, be denied as moot.
VI.
CONCLUSION AND RECOMMENDATION
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Based on the foregoing, the Court HEREBY RECOMMENDS that
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Defendant’s Motion for Summary Judgment be GRANTED;
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Plaintiff’s Motion for Judgment on the Pleadings be DENIED;
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Defendant’s Motion to Strike Plaintiff’s Cross-Motion for Summary Judgment is
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GRANTED in part.
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These Findings and Recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)
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days after being served with these Findings and Recommendations, any party may file written
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objections with the Court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served and filed within fourteen (14) days after service of the objections. The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
/s/ Barbara
March 5, 2018
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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