Villery v. Jones et al

Filing 192

FINDINGS and RECOMMENDATIONS to Grant Defendants' 129 Motion for Summary Judgment signed by Magistrate Judge Helena M. Barch-Kuchta on 09/12/2023. Referred to Judge de Alba; Objections to F&R due within Fourteen-Days.(Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JARED M. VILLERY,

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Plaintiff,

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v.

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JAY JONES, RICHARD SCHMIDT,
CHRISTOPHER YERTON, and RAFAEL
ESCARCEGA,

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Case No. 1:15-cv-01360-ADA-HBK (PC)
FINDINGS AND RECOMMENDATIONS TO
GRANT DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT1
(Doc. No. 129)
FOURTEEN-DAY OBJECTION PERIOD

Defendants.

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Pending before the Court is the motion for summary judgment filed on behalf of

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Defendants Yerton, Schmidt, Escarcega, and Jones. (Doc. No. 129, “MSJ”). Plaintiff filed an

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Opposition, (Doc. No. 164), and Defendants filed a Reply (Doc. No. 171). After obtaining leave,

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Plaintiff filed a limited surreply and a response to Defendants’ evidentiary objections. (Doc. No.

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178). The undersigned deems the matter submitted on the pleadings and record. For the reasons

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set forth below, the undersigned recommends the district court grant Defendants’ MSJ.
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This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
(E.D. Cal. 2022).

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I.

BACKGROUND

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A. Procedural History

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Plaintiff Jared M. Villery, a former state prisoner currently under pre-release California

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Department of Corrections and Rehabilitation (“CDCR”) community supervision2, initiated this

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action by filing a pro se civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). The

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previously assigned magistrate judge screened the complaint and found that it stated cognizable

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First Amendment retaliation claims against Defendants Jay Jones, Richard Schmidt, Christopher

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Yerton, and Rafael Escarcega, but no other claims. (See Doc. No. 9). Plaintiff filed an amended

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complaint, (Doc. No. 16, “FAC”) which the magistrate judge screened and found stated

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cognizable First Amendment retaliation claims as to Jones, Schmidt, Yerton, Escarcega, and

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Nelson, but no other claims. (Doc. No. 19). The district court adopted the magistrate judge’s

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Findings and Recommendation to dismiss certain claims and defendants, and ordered that

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Plaintiff be permitted to proceed only on his First Amendment retaliation claims against

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Defendants Jones, Schmidt, Yerton, Escarcega, and Nelson. (Doc. No. 23).

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On October 14, 2022 the undersigned issued findings and recommendations (Doc. No.

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184) granting Defendant Nelson’s motion for summary judgment as to all claims against him, and

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the district court adopted the findings and recommendations. (Doc. No. 185). Thus, Plaintiff’s

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FAC remains pending before Defendants Yerton, Schmidt, Escarcega, and Jones.

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B. Summary of Operative Pleading

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The incidents giving rise to the FAC took place at California Correctional Institution

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(“CCI”) in Tehachapi, California, where Plaintiff was transferred in January 2014. (Doc. No. 16

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at 2 ¶ 2). After screening, Plaintiff proceeds on five retaliation claims asserted in the FAC:

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(1) against Jones and Schmidt stemming from the January 21 and
January 22, 2014 attempt to move Plaintiff to administrative
segregation and threat to bring disciplinary proceedings (Claim 1); 3

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See https://inmatelocator.cdcr.ca.gov/Details.aspx?ID=V88097 (last visited Sept. 9, 2023).

The screening order findings and recommendations noted: “[b]oth the attempted move to Administrative
Segregation and the threat of disciplinary charges are threats which would chill First Amendment activity
. . . Furthermore, the pleadings suggest no legitimate penological purpose for Defendants’ [Schmidt and
Jones] conduct. While it is not entirely clear that Plaintiff’s discussion with mental health care providers
is protected conduct, this uncertainty likewise means that the Court cannot conclude that the allegations
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(2) against Jones and Schmidt stemming from the January 27, 2014
false rule violation report (Claim 2);

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(3) against Jones for denying Plaintiff access to the law library in
February and March 2014 (Claim 3);

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(4) against Schmidt, Yerton, and Escarcega and Nelson for rehousing
Plaintiff with inmate Cedric Jones (Claim 4);

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(5) against Jones for destroying a March 20, 2014 grievance (Claim
5).

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(Id. at 9-18).
As a background matter, Plaintiff claims he suffers from PTSD due to a 2008 attack by
other inmates. (Id. at 3-4, ¶ 16). Plaintiff states his PTSD “creates significant problems between

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him and other inmates who are forced to share living quarters” and he has concerns that being

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forced to live with another inmate “could lead to violence between him and potential future

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cellmates.” (Id. ¶¶ 16-17).

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Claims 1 and 2

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On January 21, 2014, Plaintiff met with his mental health care caseworker, Ms. Carrizales,

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with whom Plaintiff “discussed his PTSD symptoms and the problems they had been causing him

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and his cellmates, as well as [Plaintiff’s] concerns that his symptoms could lead to violence

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between him and potential future cellmates.” (Id. at 4 ¶ 17). Carrizales reported the conversation

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to Defendant Schmidt out of concern that Plaintiff might pose a threat to other inmates. (Id.

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¶ 18). Plaintiff then met with Defendant Schmidt regarding his housing assignment, and Schmidt

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advised Plaintiff that there is no single cell housing available at CCI. (Id.). Defendant Schmidt

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accused Plaintiff of “making threats” in order to secure single cell housing, and ordered Plaintiff

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placed in administrative segregation (“Ad-Seg”). (Id. at 4 ¶¶ 18-19). Due to lack of space in Ad-

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Seg, Schmidt ordered Plaintiff back to his cell until a space opened in Ad-Seg. (Id. ¶ 20). After

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transporting Plaintiff back to his cell, (former and dismissed) Defendant Nelson advised Plaintiff

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he was “pending Ad-Seg status” and could not leave his cell. (Id.).

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Jones and Schmidt interviewed Plaintiff for an RVR accusing him of manipulating staff

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based on his statements to Ms. Carrizales. (Id. at 5 ¶¶ 22-23) (stating interview started with “well

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fail to state a claim on that basis.” (Doc. No. 19 at 12) (citations omitted).

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it looks like you’re going to be on C-status for manipulation of staff.”). Plaintiff interpreted

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Jones’ and Schmidt’s comments as threatening to discipline him for discussing his PTSD with his

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clinician. (Id. ¶ 23).

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On January 22, 2014, Plaintiff submitted “two requests” complaining about conditions at

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CCI and a grievance against Schmidt and Jones for attempting to place him on Ad-Seg status and

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threatening him with discipline for seeking mental health treatment. (Id. ¶ 24).

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On January 27, 2014, Schmidt filed a RVR against Plaintiff for unlawful influence related

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to Plaintiff’s statements to the social worker. (Id. ¶ 25). Plaintiff was found not guilty of this

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RVR after he requested to call the social worker as a witness and “the hearing officer did not

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want the clinician’s statement on the record.” (Id. at 6 ¶ 26).

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Claim 3

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Around February 1, 2014, Plaintiff was placed on 90-day restriction from yard activities

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for an unrelated RVR, which involved Plaintiff’s improper possession of a cell phone and

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charger. (Id. ¶ 27). Due to the yard restrictions, Plaintiff’s access to the law library was

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hampered because the yard is the primary way to access the library. (Id.). Alternatively, the

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librarian could call Plaintiff’s housing unit for his release to the law library. (Id. ¶¶ 27, 29).

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Plaintiff claims he submitted grievances on January 22, 23, and 30, 2014, two of which were

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against Jones and Schmidt. (Id. ¶ 28). Plaintiff alleges Defendant Jones retaliated against him by

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impeding his law library access in February and March 2014. (Id. at 7 ¶ 33).

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Claim 4

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On June 18, 2014, Plaintiff was first housed with inmate Cedric Jones (“Cedric”). (Id.

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¶ 34). Plaintiff describes inmate Cedric as having “severe mental health problems,” exhibiting

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“erratic behavior” and suffering from “severe paranoia and delusions.” (Id.). Plaintiff claims

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inmate Cedric asked the housing unit officers to move him from Plaintiff’s cell. (Id. at 8 ¶ 35).

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Plaintiff and Cedric remained housed together for eight days and “nearly got into an altercation

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every day.” (Id. ¶ 36).

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On June 26, 2014, Plaintiff claimed he handed a “complaint” to Nelson “to be delivered to
Defendant Jones.” (Id. ¶ 37). On June 28, 2014, floor officer Lindsey moved Plaintiff out of the
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double cell with inmate Cedric. (Id. at 8-9 ¶¶ 37, 40). Plaintiff complains officials instead should

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have moved inmate Cedric because Plaintiff had a job assignment in Unit Two that he lost due to

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his cell move. (Id.).

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The day after his move, Defendant Schmidt called Plaintiff to his office and accused him

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of “trying to manipulate staff again.” (Id. ¶ 38). Schmidt told Plaintiff that he does not get to

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choose who he lives with, and instead correctional officials decide housing for inmates. (Id. at 9

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¶ 39). Plaintiff complained that his housing move caused him to lose his porter job. (Id. ¶ 40).

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In response, Schmidt threatened to move Plaintiff back with inmate Cedric. (Id. ¶ 41).

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Defendants Escarcega and Yerton summoned Plaintiff to the sergeants’ office after Plaintiff’s

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family reached out to an ombudsman. (Id. at 10 ¶ 43). After a heated exchange of words,

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Defendants Escarcega and Yerton also threatened to move Plaintiff back into a cell with inmate

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Cedric. (Id. ¶¶ 44, 45).

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On July 22, 2014, Plaintiff submitted a complaint to officer Ryan Miller about being

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moved from Unit Two because it caused him to lose his porter job. (Id. at 11 ¶ 46). On July 24,

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2014, Defendant Nelson moved Plaintiff back into a cell with inmate Cedric. (Id. ¶¶ 46, 48).

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Plaintiff claims his move back into a cell with inmate Cedric was not “mere coincidence” and

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claims Schmidt, Escarcega and Yerton “facilitated the move.” (Id. ¶¶ 47-48). Less than an hour

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after being moved back into the cell with inmate Cedric, Plaintiff submitted a complaint to

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Nelson. Plaintiff claims he and inmate Cedric had “confrontations in the cell every day, each

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time almost resulting in a fight.” (Id. at 12 ¶ 51). Plaintiff sent letters to the ombudsman and the

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warden and was moved three days later.

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Claim 5

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From January 2014 through October 2014, Plaintiff claims six of his inmate appeals

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disappeared, including a March 20, 2014 appeal of the RVR for possession of an illegal

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cellphone. (Id. at 13-14 ¶¶ 55-58, 62). Plaintiff claims Jones intercepted the appeals out of

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retaliation. (Id.).

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C. Defendants’ Motion for Summary Judgment

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Defendants Yerton, Schmidt, Escarcega and Jones filed the instant Motion for Summary
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Judgment. In support, Defendants attach the following documents: a statement of undisputed

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facts (Doc. No. 129-2), the declaration of attorney Arthur B. Marks (Doc. No. 129-3) along with

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excerpts from Plaintiff Villery’s deposition transcript (Doc. No. 129-3 at 5-43), the declaration of

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A. Carrizales (Doc. No. 129-4), the declaration of R. Escarcega (Doc. No. 129-5), the declaration

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of J. Jones (Doc. No. 129-6) attaching copies of rules violation reports (“RVR”) issued to

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Plaintiff (Doc. No. 129-6 at 6-10), a committee report authorizing double celling dated January

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29, 2014 (Doc. No. 129-6 at 12-13), an RVR dated January 21, 2014 authored by Defendant

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Schmidt (Doc. No. 129-6 at 17), a grievance titled “Confidential Supplement to Appeal” dated

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May 12, 2014 (Doc. No. 129-6 at 19), the declaration of J. Stone, Grievance Coordinator at CCI

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attaching appeal tracking system (Doc. No. 129-7), the declaration of R. Schmidt (Doc. No. 129-

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8) with attachments (Doc. No. 129-8 at 6-17), and the declaration of C. Yerton (Doc. No. 129-9)

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with attachments (Doc. No. 129-9 at 5-8).

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D. Plaintiff’s Opposition to Defendants’ MSJ

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After being granted multiple extensions of time, Plaintiff filed an Opposition to

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Defendants’ MSJ. (Doc. No. 164). The Opposition incorporates Plaintiff’s Response to

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Defendants’ Statement of Undisputed Facts. (Id. at 39-57). Plaintiff also attaches in a separate

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filing 40 numbered exhibits in support of his opposition, some of which are duplicative of

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Defendants’ exhibits, which include, inter alia, Plaintiff’s declaration; a classification chrono

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dated January 23, 2008; Plaintiff’s mental health evaluations dated January 21, 2014; timesheets

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for Schmidt and Jones; Nelson’s supplemental responses to Plaintiff’s requests for admission;

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housing logbooks; a copy of the CDCR mental health delivery system guide; correspondence

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from attorney Arthur Mark to Plaintiff; CDCR form 22 dated January 23, 2014; and excerpts

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from CDCR’s operation manuals. (See generally Doc. No. 165).

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E. Defendants’ Reply

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Defendants filed a Reply to Plaintiff’s Opposition. (Doc. No. 171). Defendants attach to

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their Reply supplemental declarations from attorney Arthur B. Mark (Doc. No. 171-1), J. Jones

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(Doc. No. 171-2), and Defendants’ objections to Plaintiff’s evidence in opposition (Doc. No. 171-

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3).
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F. Plaintiff’s Surreply

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After obtaining leave, Plaintiff filed a limited surreply and a response to Defendants’

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evidentiary objections. (Doc. No. 178).

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II. APPLICABLE LAW

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A. Summary Judgment Standard

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Summary judgment is appropriate when there is “no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is

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material where it is (1) relevant to an element of a claim or a defense under the substantive law

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and (2) would affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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247 (1987).
The party moving for summary judgment bears the initial burden of proving the absence

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of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When

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the moving party has met this burden, the nonmoving party must go beyond the pleadings and set

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forth specific facts, by affidavits, deposition testimony, documents, or discovery responses,

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showing there is a genuine issue that must be resolved by trial. See Fed. R. Civ. P. 56(c)(1);

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Pacific Gulf Shipping Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir.

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2021). A mere “scintilla of evidence” in support of the nonmoving party’s position is

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insufficient. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Rather, the

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evidence must allow a reasonable juror, drawing all inferences in favor of the nonmoving party,

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to return a verdict in that party’s favor. Id.

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A court must view the evidence in the light most favorable to the nonmoving party.

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Tolan v. Cotton, 572 U.S. 650, 655 (2014). It may not weigh evidence or make credibility

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determinations. Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017). Conclusory or

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speculative testimony in affidavits and supporting papers is insufficient to raise a genuine issue

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of fact and defeat summary judgment. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984

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(9th Cir. 2007); see Fed. R. Civ. P. 56(c)(2). Furthermore, the Ninth Circuit has “held

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consistently that courts should construe liberally motion papers and pleadings filed by pro se

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inmates and should avoid applying summary judgment rules strictly.” Soto v. Sweetman, 882
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F.3d 865, 872 (9th Cir. 2018) (quoting Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.

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2010)).

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B. First Amendment Retaliation

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The First Amendment prohibits prison officials from retaliating against prisoners for

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exercising their rights of free speech. These First Amendment rights include the right to file a

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grievance or civil rights complaint against correctional officials. Brodheim v. Cry, 584 F. 3d

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1262, 1269 (9th Cir. 2009). And threatening to file an inmate grievance has been deemed

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protected conduct by the court. See Gleason v. Placensia, 2020 WL 3497001, at *3 (E.D. Cal.

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June 29, 2020) (citations omitted) (recognizing courts have considered a request to obtain a

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grievance form or merely threatening to file a grievance within the purview of actions protected

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by the First Amendment).

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“Within the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2)

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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005); Watison v.

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Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). The adverse action must be of a sufficient nature

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that it would deter or “chill” a person of “ordinary firmness” in the exercise of his constitutional

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rights. Rhodes v. Robinson, 408 F.3d 559, 568-69 (9th Cir. 2005). The adverse action taken

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against the prisoner “need not be an independent constitutional violation. The mere threat of

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harm can be an adverse action.” Watison, 668 F.3d at 1114 (internal citations omitted). A

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retaliatory motive may be shown sufficiently convincing circumstantial evidence, as well as direct

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evidence. Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir. 2003); McCollum v. Ca. Dep’t of

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Corr. And Rehab., 647 F.3d 870, 882 (9th Cir. 2011). The causal connection between the adverse

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action and the protected conduct can also be inferred from the chronology of events. Pratt v.

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Rowland, 65 F.3d 802, 806 (9th Cir. 1995). But, depending on the facts presented, mere timing

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of events may not be sufficient to establish causation. Id. And mere speculation that a defendant

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acted out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing
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cases).
In reviewing retaliation claims by a prisoner Courts must be mindful of avoiding

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“excessive judicial involvement in day-to-day prison management, which ‘often squander[s]

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judicial resources with little offsetting benefit to anyone.’” Pratt, 65 F.3d at 807 (quoting Sandin

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v. Conner, 515 U.S. 472, 482 (1995)). Courts must “‘afford appropriate deference and flexibility’

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to prison officials in the evaluation of proffered legitimate penological reasons for conduct

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alleged to be retaliatory.” Id. (quoting Sandin, 515 U.S. at 482). Consequently, courts are

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cautioned to “approach prisoner claims of retaliation with skepticism and particular care” lest

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“virtually any adverse action taken against a prisoner by a prison official—even those otherwise

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not rising to the level of a conditional violation—can be characterized as a constitutionally

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proscribed retaliatory act.” Bacon v. Phelps, 961 F.3d 533, 543 (2d Cir. 2020) (quoting Dawes v.

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Walker, 239 F. 3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema

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N.A., 534 U.S. 506 (2002)).

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III. ANALYSIS
The undersigned has carefully reviewed and considered all arguments, points and

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authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any,

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objections, and other papers filed by the parties. The omission to an argument, document, paper,

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or objection herein is not to be construed that the undersigned did not consider the argument,

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document, paper, or objection. Instead, the undersigned thoroughly reviewed and considered the

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evidence it deemed admissible, material, and appropriate for purposes of issuing these Findings

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and Recommendations on Defendants’ MSJ. Further, to the extent that Plaintiff addresses other

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claims that were not deemed cognizable by the Court’s screening order as adopted by the district

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court, the undersigned declines to address those claims.

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A. Judicial Notice of Inmate Housing Assignments

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The Court previously took judicial notice of California Administrative Code provisions

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concerning housing assignments of inmates in its findings and recommendations on Defendant

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Nelson’s motion for summary judgment. (Doc. No. 184). Federal Rule of Evidence 201 permits

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a court to take judicial notice of facts that are “not subject to reasonable dispute” because they are
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either “generally known within the trial court’s territorial jurisdiction,” or they “can be accurately

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and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R.

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Evid. 201(b). The Court may take judicial notice of a pertinent law or regulations at any stage of

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the proceedings. Id.; see also National Agricultural Chemicals Assn. v. Rominger, 500 F.Supp.

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465, 472 (E.D. Cal. Sept. 19, 1980). The Court may take judicial notice on its own or at the

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request of any party. Fed. R. Evid. 201(c).

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The Court again takes judicial notice of Section 3269 of the California Administrative

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Code that governs inmate housing assignments at CDCR institutions during the operative time in

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2014:
Inmates shall accept Inmate Housing Assignments (IHAs) as
directed by staff. It is the expectation that all inmates double cell,
whether being housed in a Reception Center, General Population
(GP), an Administrative Segregation Unit (ASU), a Security Housing
Unit (SHU), or specialty housing take unit. If staff determines an
inmate is suitable for double celling, based on the criteria as set forth
in this section, the inmate shall accept the housing assignment or be
subject to disciplinary action for refusing. IHAs shall be made on
the basis of available documentation and individual case factors.
Inmates are not entitled to a single cell assignment, housing location
of choice, or to a cellmate of their choice.

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Cal. Code Regs. Tit. 15 § 3269 (2014). Recently, the Ninth Circuit reaffirmed that prison
officials are entitled to deference for their housing decisions. Villery v. Beard, 2022 WL 4462696
*1 (9th Cir. Sept. 26, 2022).
B. Undisputed Facts
After a thorough review of the record, including, inter alia, Plaintiff’s verified FAC,

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Defendant’s Statement of Undisputed Facts, Defendants’ supporting evidence, Plaintiff’s

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Response to Defendant’s Statement of Facts, Plaintiff’s opposition and exhibits submitted in

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support, the undersigned finds the following facts to be undisputed and material, unless indicated
otherwise:
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Plaintiff was an inmate in the custody of CDCR and incarcerated at the CCI in
Tehachapi, California, from January 14, 2014 to January 9, 2015. (Doc. No. 129-7
at 3 ¶ 7).

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At the time of the incidents, Defendants were sworn correctional officers

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employed by CDCR at CCI. (Doc. No. 129-5 at 2; Doc. No. 129-6 at 2; Doc. No.

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129-8 at 1-2; Doc. No. 129-9 at 1-2).

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From 2008 through 2016, which includes the relevant time period in the FAC,

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Plaintiff was not granted single-cell status for his PTSD. (Doc. No. 129-3 at 8:16-

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18).

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From January 15, 2014 to January 2, 2015, Plaintiff was housed in C-Facility at
CCI. (Doc. No. 129-7 at 3 ¶ 7).

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Defendant Jones was employed by CDCR for 20 years and was a Captain at CCI

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from 2011 until he retired on December 30, 2015. From January through July

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2014, Defendant Jones was assigned as Captain of C-Facility at CCI (Doc. No.

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129-6 at 1-2 ¶ 2).

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Defendant Schmidt was employed by CDCR at CCI for 22 ½ years until he retired

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in May 2016. Defendant Schmidt was assigned as a Sergeant to C-yard in January

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2014 and promoted to Lieutenant in March 2014. (Doc. No. 129-8 at 1-2 ¶¶ 2, 7).

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Defendant Yerton has been employed by CDCR since January 2007. He is

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currently a Correctional Counselor II specialist, assigned to the Class Action

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Management Unit for CCI and Avenal State Prison. Defendant Yerton worked as

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a Sergeant at CCI from July 2013 through December 2014 in relief posts and was

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not assigned to C-yard on a regular basis. (Doc. No. 129-9 at 1-2 ¶¶ 2, 4).

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Defendant Escarcega was working vacation relief posts in July 2014 and was not
assigned to C-yard on a regular basis. (Doc. No. 129-5 at 2 ¶¶ 2, 4).

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Plaintiff admitted at his deposition that when he arrived at CCI in January 2014,

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correctional staff discovered a cellular phone and charger in his property, resulting

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in a rule violation report (“RVR”) being issued on January 16, 2014. He was

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found guilty of the RVR, which resulted in a “loss of privileges” including “no

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yard.” (Doc. No. 129-3 at 9:8-17).

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On January 21, 2014, Plaintiff met with Ms. Carrizales, a social worker at CCI,
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and stated, “I don’t want to get a life term for doing something” and “if I get a

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cellie I will hurt him, and I don’t want to hurt anyone.” (Doc. No. 129-4 at 4).

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Ms. Carrizales memorialized Plaintiff’s statements in a “chrono” the same day

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because she believed “Villery may have been considering harming other inmates”

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and due to the nature of the statements she was “required to report these statements

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to custody staff.” (Doc. No. 129-4 at 2 ¶ 2). Consistent with protocol, Ms.

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Carrizales contacted custody staff to alert them to the statements. (Id. ¶ 3).

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at 9:21).
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Plaintiff admitted the basis for his request for a single cell was for his safety or
because other inmates’ “safety would be in danger.” (Doc. No. 171-1 at 19:9-16).

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Plaintiff admitted he told Ms. Carrizales he wanted a single cell. (Doc. No. 129-3

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On January 21, 2014, based on Ms. Carrizales’ chrono, Defendant Schmidt met

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with Plaintiff to determine whether Plaintiff posed a danger to other inmates.

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(Doc. No. 129-8 at 2 ¶ 8).

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Plaintiff admits that when he spoke to Defendant Schmidt on January 21, 2014

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Schmidt told him “We don’t do single cell.” “CDCR is busting at the seams . . .

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Everything is overcrowded.” (Doc. No. 129-3 at 10:9-11).

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During the investigation by correctional officers into Plaintiff’s statements about

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potential harm to another inmate, Plaintiff was not placed in administrative

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segregation, but was temporarily placed on “CTQ” and “STS” i.e., confined to

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quarters on single-cell status. (Doc. No. 129-3 at 12-13: 21-10).

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As of January 2014, Plaintiff had been in CDCR custody for 16 years and had no

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documented history of in-cell violence toward any other inmates despite his 2008

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PTSD diagnosis. (Doc. No. 129-3 at 10:24-11:19).

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•

On February 1, 2014, an RVR hearing committee found Plaintiff guilty of an

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unrelated RVR for possession of a cellular phone and a charger. Plaintiff lost 90

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days credits and privileges, including yard, telephone, evening dayroom, quarterly

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packages, and special privileges due to the guilty finding. (Doc. No. 129-3 at 9:812

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17).
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Defendant Schmidt issued a RVR (No. CCI-C-14-01-0035) to Plaintiff charging

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him with an alleged violation of California Code of Regulations title 15 § 3013 in

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connection with Plaintiff’s statements to Ms. Carrizales.4 Schmidt issued the RVR

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only after reviewing Ms. Carrizales’ 128-A chrono, meeting with Plaintiff on

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January 21, 2014, and reviewing Villery’s file and finding, inter alia, that Plaintiff

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previously requested single-cell status on two occasions stating he was not

8

compatible with anyone and if celled with someone he might hurt them. Both

9

requests occurred before the 2008 stabbing—the incident for which he claims he

10

has PTSD.5 Based on these facts and the fact that Plaintiff had no documented

11

history of any previous altercations with other cell mates, Schmidt interpreted

12

Plaintiff’s statement to Carrizales as an unlawful attempt to manipulate staff to

13

obtain a single-cell. (Doc. No. 129-8 at 2, ¶¶ 8-9).
•

14
15

A copy of the RVR (No. CCI-C-14-01-0035) is attached to Schmidt’s declaration
as Exhibit B. (Doc. No. 129-8 at 6-7).

•

16

Plaintiff was found not guilty of RVR No. CCI-C-14-01-0035 because the hearing

17

officer could not confirm that Plaintiff made the statements to Ms. Carrizales

18

because Ms. Carrizales was on extended leave and was “unavailable as a witness”

19

on the day of Plaintiff’s hearing. Plaintiff also had not been provided with copies

20

of the two prior incident reports (CDC 7219 or CDC-114D) referenced in the

21

RVR. (Doc. No. 129-8 at 13-14).
•

22

Neither Defendant Schmidt nor Jones met with Plaintiff on January 22, 2014, nor

23

threatened him with placement in administrative segregation, write-ups,

24

confinement to quarters, or placement on C-status in retaliation for him speaking

25
26
27
28

California Code of Regulations section 3013 states: “Inmates shall not attempt to gain special
consideration or favor from other inmates, employees, institution visitors or any other person by the use of
bribery, threat, or other unlawful means.”
5
The two previous incidents referred to by Schmidt occurred on 2/11/2207 (CDC 7219) and 4/25/2007
(CDC-114D).
4

13

1

to mental health about his PTSD or celling issues. (Doc. No. 129-6 at 4 ¶ 10; Doc.

2

No. 129-8 at 3 ¶ 11).

3

•

The first grievance Plaintiff submitted at CCI was not received by the CCI appeals

4

office until January 31, 2014. (Doc. No. 129-7 at 3 ¶ 8). This date is after

5

Schmidt’s January 21, 2014 meeting with Plaintiff and after he issued Plaintiff the

6

RVR for attempting to influence staff.

7

•

Plaintiff admits that he had no interaction with Jones concerning the law library,

8

Jones never told him he was not allowed to go to the library, and no one ever told

9

him Jones was preventing him from using the library. (Doc. No. 129-3 at 19:4-

10
11

25).
•

Defendant Jones did not order non-parties Karlow and Marin to deny Plaintiff

12

library access and instead advised them that they could not deny Plaintiff law

13

library access. (Doc. No. 129-6 at 4 ¶ 11; Doc. No. 129-3 at 19:4-25) (emphasis

14

added).

15

•

16
17

On June 18, 2014, Plaintiff was assigned inmate Cedric Jones as a cellmate. (Doc.
No. 129-3 at 27:13-18).

•

Defendants Schmidt, Yerton, and Escarcega were not involved in moving Cedric

18

Jones into Plaintiff’s cell on June 18, 2014. (Doc. No. 129-8 at 3 ¶ 5; Doc. No.

19

129-9 at 2 ¶ 6; Doc. No. 129-5 at 2 ¶ 8).

20

•

On June 26, 2014, Plaintiff requested a bed move away from inmate Cedric. On

21

June 28, 2014, Plaintiff was moved, per his request, to cell 145 in Facility C-3.

22

(Doc. No. 129-3 at 32:14-18).

23

•

24
25

Defendant Schmidt did not meet with Plaintiff on June 29, 2014. (Doc. No. 129-8
at 3 ¶ 15).

•

Defendant Schmidt denies being aware of any grievances Plaintiff submitted on or

26

before January 27, 2014, when he issued the RVR for manipulation of staff. (Doc.

27

No. 129-8 at 3 ¶ 12).

28

•

Defendants Escarcega and Yerton did not have a conversation with Plaintiff on
14

1

July 11, 2014, regarding his bed move and were not aware of any grievances

2

submitted by Plaintiff. (Doc. No. 129-9 at 3 ¶ 8; Doc. No. 129-5 at 2-3 ¶¶ 9-10.)

3

•

4
5

On July 24, 2014, Plaintiff was moved back into a cell in Facility C-2 with inmate
Cedric by (former and dismissed) Defendant Nelson. (Doc. No. 129-3 at 36:5-7).

•

Escarcega, Yerton, and Schmidt were not involved in Plaintiff’s July 24, 2014 bed

6

move in which he was placed with inmate Cedric Jones. Indeed, Yerton was not at

7

work that day. (Doc. No. 129-5 at 2 ¶ 8; Doc. No. 129-9 at 7 ¶3; Doc. No. 129-8

8

at 4 ¶ 16).

9

•

The Appeals Office received the first grievance Plaintiff submitted at CCI on

10

January 31, 2014, designated as “grievance against staff.” (Appeal number CCI-0-

11

14-00242). (Doc. No. 129-7 at 3 ¶ 8, 5). CCI appeals office screened out the

12

grievance on February 3, 2014 with instructions to resubmit. (Id.).

13

B. Plaintiff’s Claims

14

In light of the above arguments and undisputed facts, the undersigned addresses each of

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff’s claim in seriatim.
1. January 21-22, 2014 Attempts to Move Plaintiff to
Administrative Segregation and/or Threat to Bring
Disciplinary Proceedings, and January 27, 2014 RVR
(Claims 1 and 2)
Plaintiff alleges that on January 21 and January 22, 2014, Defendants Jones and Schmidt
attempted to move him to administrative segregation and threatened to bring disciplinary
proceedings against him in retaliation for discussing his PTSD diagnosis with a social worker
when he requested a single cell. Similarly, Plaintiff argues the RVR authored by Schmidt and
approved by Jones on January 27, 2014, charging him with improper influence, was “false” and
was done for retaliatory purposes. These claims are addressed together to the extent they stem
from the same operative facts: the incident where Plaintiff told a social worker he required a
single cell or he might harm a cellmate if he was housed with one. In opposition, Plaintiff states
he never threatened harm to a cellmate. (Doc. No. 164 at 8-9). Plaintiff argues his statements to
the social worker “described his fear of potential violence, because of his mental health issues.”
15

1
2

(Id. at 9).
At the heart of both claims are Plaintiff’s statements made to CCI social worker, Ms.

3

Carrizales. In the social worker’s own words recorded on January 21, 2014, she quoted

4

Plaintiff’s statements made to her regarding “his future in having a cell mate” as follows:

5
6

“I don’t want to get a life term for doing something.” When asked
for clarification, I/p Villery stated that “if I get a cellie I will hurt him
and I don’t want to hurt anyone.”

7

(Doc. No. 129-4 at 4). Ms. Carrizales testified Plaintiff “voluntarily” made the statements when

8

speaking with him about his “CCCMS status.” (Id.).

9

Defendants argue that Plaintiff’s statements to Ms. Carrizales were not protected speech

10

under the First Amendment and thus any response to them cannot form the basis of a retaliation

11

claim. (Doc. No. 129-1 at 14). The Court agrees. Statements consisting of threats of harm to

12

other inmates are often prohibited by prison regulations and subject to punishment. See generally

13

Lane v. Swain, 910 F.3d 1293, 1294 (9th Cir. 2018) (denying First Amendment challenge to a

14

Bureau of Prisons regulation prohibiting prisoners from sending letters threatening physical harm

15

and affirming resulting loss of good time credits); Lane v. Salazar, 911 F.3d 942, 947-48 (9th

16

Cir. 2018) (finding same BOP regulation serves a legitimate governmental interest in

17

rehabilitation and did not violate petitioner’s First Amendment rights); Richey v. Dahne, 733 F.

18

App’x 881, 884 (9th Cir. 2018) (finding that inmates do not have a First Amendment right to use

19

disrespectful language in the prison environment and prison officials are justified for curtailing

20

such behavior).

21

Plaintiff asks the Court to find a difference without a distinction in claiming that he was

22

not making threats but simply “describing how the symptoms of his diagnosed PTSD manifested

23

in his life.” (Doc. No. 164 at 25). Viewed in context, Plaintiff’s statements are not protected

24

speech giving rise to a retaliation claim. Correctional officials reasonably interpreted Plaintiff’s

25

sentiments, which were expressed to Ms. Carrizales and confirmed to other staff, as a threat to

26

harm others if Plaintiff was housed with a cellmate. Having construed these statements as a

27

veiled threat, correctional officials then reasonably viewed these statements as an attempt to

28

“unlawfully influence” staff and housing. As the Ninth Circuit determined in a separate action
16

1

filed by Plaintiff, correctional officials are entitled to deference in choosing where to house

2

inmates. (Supra at 9).

3

Because Plaintiff’s statements to Ms. Carrizales do not qualify as “protected conduct”

4

under the first prong of a retaliation claim, the Court need not analyze the remaining elements of

5

the claim, but further notes that the alleged adverse action taken against Plaintiff, the RVR for

6

unlawful influence, served the legitimate correctional objective of ensuring institutional safety.

7

While issuance of a disciplinary report has a punitive aspect, it was issued here in response to a

8

safety threat and therefore furthered a legitimate correctional objective. Pratt, 65 F.3d at 807.

9

Nor does the other adverse action Plaintiff cites, Defendants “threatening” to place him in

10

administrative segregation, set forth a retaliation claim. The record reflects that after prison staff

11

learned of Plaintiff’s statements to Ms. Carrizales they placed Plaintiff in a holding cell while

12

they investigated the seriousness of the potential threat. (Doc. No. 129-3 at 12-13). Plaintiff was

13

returned to his cell shortly thereafter while correctional officials continued to investigate

14

Plaintiff’s threats and determine whether he should be placed in administrative segregation. (Id.).

15

Correctional officials have a duty to protect those in custody from any threat of harm by

16

their fellow inmates, including Plaintiff. See Farmer v. Brennan, 511 U.S. 825, 833 (1994).

17

Moreover, it is well established that prisoners have no federal constitutional right to a particular

18

classification or program status or to a choice in their housing. Hernandez v. Johnston, 833 F.2d

19

1316, 1318 (9th Cir. 1987) (citing Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S.Ct. 274, 50

20

L.Ed.2d 236 (1976)). Nor do prisoners have a liberty interest in remaining in the general

21

population. McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir.1985). “[I]t is well settled that

22

prison officials must have broad discretion, free from judicial intervention, in classifying

23

prisoners in terms of their custodial status.” McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir.

24

1990) (citations and internal quotation marks omitted). Accord, Garcia v. Biter, 2016 WL

25

2625840, at *2 n.2 (E.D. Cal. May 9, 2016) (“Plaintiff's housing status and other custody or

26

classification factors are left to the sound discretion of prison officials.”).

27
28

The Court finds that correctional officials’ decision to document and investigate Plaintiff’s
threats, with the potential of placing Plaintiff in restricted housing, served the legitimate
17

1

penological objective of ensuring institutional safety. Thus, their actions, while arguably

2

punitive, cannot form the basis of a retaliation claim. Further, Plaintiff does not point to any

3

harm that resulted from the mere possibility that he would be placed in Ad-Seg. To the extent

4

Plaintiff claims Defendants Schmidt and Jones made threats or spoke harshly to him during the

5

alleged meetings on January 21 and 22, 2014, verbal threats, without any evidence of harm, are

6

insufficient to support a retaliation claim. See Garcia v. Beard, 2016 WL 8731199 * 6 (E.D. Cal.

7

May 6, 2016) (finding allegations of threats and harassment cannot support a claim for retaliation

8

without evidence of harm). Thus, the undersigned recommends that the district court find

9

Defendants Schmidt and Jones are entitled to summary judgment as a matter of law on Claims 1

10
11

and 2.
Defendants Jones and Schmidt raise, in the alternative, the affirmative defense of qualified

12

immunity concerning their use of Plaintiff’s statements to Ms. Carrizales to place him in

13

temporary restricted housing. (Doc. No. 129-1 at 17, 19). Defendants argue they had no notice

14

based on existing law that Plaintiff’s threatening statements to a social worker, or oral complaints,

15

were protected under the First Amendment and would violate clearly established law.

16

Qualified immunity shields government officials from money damages unless their

17

conduct violated “clearly established statutory or constitutional rights.” Kisela v. Hughes, 138 S.

18

Ct. 1148, 1152 (2018); accord Felarca v. Birgeneau, 891 F.3d 809, 815 (9th Cir. 2018). To

19

overcome the heavy burden of qualified immunity, Plaintiff must show that “(1) the official

20

violated a statutory or constitutional right, and (2) that the right was clearly established at the time

21

of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Qualified immunity

22

only becomes relevant if a court determines that a constitutional violation has occurred.

23

Because the undersigned has found the record presents no genuine dispute of material fact

24

on Plaintiff’s retaliation claims against Defendants Schmidt and Jones, the undersigned need not

25

evaluate whether Defendants are entitled to qualified immunity.

26

2. Denial of Access to Law Library (Claim 3)

27
28

Next, Plaintiff claims Defendant Jones denied him access to the law library and alleges
Jones did this in retaliation for Plaintiff filing grievances on January 22, 23, and 30, 2014. (Doc.
18

1

No. 16 at 6 ¶¶ 27-28). Plaintiff asserts that he suffered restricted access to the law library from

2

February 1 to May 2, 2014. (Id. ¶ 27). Plaintiff acknowledges this was due in significant part to

3

a 90-day yard restriction stemming from his February 1, 2014 RVR for possession of an illegal

4

cellphone and charger. (Id. ¶ 27; supra at 3). Because of his restricted yard access, during that

5

time period, Plaintiff could not access the law library without being called by the library staff and

6

being released by his housing unit. (Doc. No. 16 at 19 ¶ 28). Plaintiff was called twice by library

7

staff during this time and admits that he snuck into the law library on three other occasions, but

8

on several other occasions his requests for access were ignored. (Doc. No. 164 at 12; Doc. No. 16

9

at 6-7 ¶¶ 29, 32). Plaintiff claims that he confronted Library Technician Assistant Marin about

10

the failure to respond to his requests for access, and Marin told Plaintiff that he needed to provide

11

upcoming court deadlines to be placed on Preferred Legal User (“PLU”) status and access the

12

library. (Doc. No. 165 at 19-20 ¶ 30). When Plaintiff protested, Marin told Plaintiff that because

13

he was on “C-status” she couldn’t call him in without a court deadline, and that this was “the

14

Captain’s policy.” (Id.). Defendant Jones denies that he did anything to limit Plaintiff’s access to

15

the law library, and instead asserts that he advised them that they could not deny Plaintiff law

16

library access. (Doc. No. 129-6 at 4; Doc. No. 129-3 at 19).

17

Even assuming Defendant Jones instituted a policy that had the effect of limiting

18

Plaintiff’s access to the law library, there are no facts alleging that the policy applied only to

19

Plaintiff, much less that it was introduced in response to Plaintiff’s First Amendment conduct.

20

Assuming the truth of Plaintiff’s conversation with LTA Marin, she described only a general

21

policy applying to all inmates classified with “C-status” rather than an action targeted at

22

Plaintiff.6

23

Marin and [Marin’s supervisor] Karlow to restrict Villery from accessing the library, allegedly

24

based on being on yard restriction” but there are no facts to support the claim that this action was

25

targeted at Villery. Mere speculation that Jones targeted Plaintiff and acted out of retaliation is

26

not sufficient to state a claim. Wood, 753 F.3d at 905.

27

6

28

Plaintiff speculates, without citing any evidence, that Defendant Jones “ordered

Although Plaintiff was in Loss of Privileges status, rather than C-status, Marin later acknowledged that she
conflated the two in telling Plaintiff he needed to provide a court deadline to use the library. (See Doc. No. 129-6 at
19-20).

19

1

There is thus no dispute of material fact regarding the reasons for Plaintiff’s restricted

2

library access or whether Defendant Jones retaliated against Plaintiff. Thus, the undersigned

3

recommends that the district court find Defendant Jones is entitled to summary judgment on

4

Claim 3.

5
6
7

3. June 29, 2014 Threats by Defendant Schmidt in Response to
Plaintiff’s Grievance (Claim 4)
Plaintiff next claims that on June 29, 2014, Defendant Schmidt threatened Plaintiff with

8

disciplinary charges if he filed another grievance “anything like” Plaintiff’s June 26, 2014

9

grievance regarding his housing. (Doc. No. 16 at 6-8 ¶¶ 34-39). In the June 26, 2014 grievance

10

(formally speaking, an Inmate Request for Interview, Item, or Service (CDCR Form 22)),

11

Plaintiff requested a new cellmate because of “numerous instances of near violence due to

12

[Plaintiff’s] own mental issues and mental instability of [his] cellmate.” (Doc. No. 129-3 at 43);

13

(see also Doc. No. 85-4 at 27; Doc. No. 85-4 at 21 ¶ 18). In the Form 22, Plaintiff opined he

14

would be “more compatible” with inmate Hardin. (Doc. No. 129-3 at 43). Plaintiff stated he had

15

apprised “staff” “on multiple occasion” of his “problems” with inmate Cedric but they refused to

16

accommodate him out of retaliation. (Doc. No. 129-3 at 43).

17

Two days after he filed the grievance, Plaintiff was moved to another housing unit. (Doc.

18

No. 16 at 8 ¶ 37). The following day, Plaintiff was “called to the facility unit office” where

19

Schmidt “confronted” him about the June 26, 2014 grievance. (Id. ¶ 38). Plaintiff asserts in his

20

FAC that Schmidt stated he would file another disciplinary charge of manipulation of staff if

21

Plaintiff filed another similar grievance in the future and that Schmidt told him, “you don’t

22

choose who you live with here, we do.” (Id. ¶ 39). Plaintiff includes additional detail and a new

23

allegation regarding this conversation in his Opposition and an attached declaration, stating that

24

Schmidt issued “two different threats” during the conversation. (See Doc. No. 164 at 14; Doc.

25

No. 165 at 25 ¶ 41). Plaintiff claims that he protested to Schmidt that his bed move had resulted

26

in him being unable to keep his job as a janitor in housing unit two. (Id.). Schmidt allegedly told

27

him, “if you’re so concerned about your job, I can move you back in the same cell with that guy,

28

is that what you want?” and continued “[i]f you keep complaining about your job I’ll have you
20

1

moved back in with the same guy in two block.” (Id. at 25-26 ¶ 41). This claim is absent from

2

Plaintiff’s FAC, and Plaintiff admits that “[b]ecause of the limited space available on the appeal

3

form,” he did not mention it in the grievance he filed immediately after the conversation with

4

Schmidt. (See Doc. No. 16 at 8; Doc. No. 165 at 26 ¶ 42).

5

As noted above, Plaintiff’s filing of an inmate grievance is an activity protected under the

6

First Amendment. Because the Form 22 is an informal precursor to filing a formal 602 grievance,

7

it can reasonably be deemed protected First Amendment activity like the filing of a formal

8

grievance. See McCoy v. Cnty. of Riverside, 2015 WL 134285, at *4 (C.D. Cal. Jan. 9, 2015)

9

(noting that “CDCR’s regulations accord substantial discretion to prison officials to decide

10

whether to require a prisoner to complete the Form 22 process before accepting a Form 602

11

appeal”).

12

Assuming the June 29, 2014 meeting with Defendant Schmidt occurred as Plaintiff

13

describes, the FAC nevertheless fails to state a claim. To state a retaliation claim, Plaintiff must

14

show, inter alia, that Schmidt’s statements constituted an adverse action and lacked any legitimate

15

penological purpose. As to Schmidt’s statement that he would issue Plaintiff another RVR for

16

manipulation of staff, which Plaintiff characterizes as a “threat,” this warning served the

17

legitimate purpose of ensuring institutional order. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.

18

1995) (prisoner suing prison officials under section 1983 for retaliation must allege that he was

19

retaliated against for exercising his constitutional rights and that the retaliatory action did not

20

advance legitimate penological goals, such as preserving institutional order and discipline);

21

Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (same). Defendant Schmidt did

22

not claim he would arbitrarily issue Plaintiff an RVR for manipulation of staff but stated that if

23

Plaintiff persisted in conduct Schmidt deemed to be manipulation of staff (“I know you’re trying

24

to manipulate staff again”), Schmidt would issue an RVR accordingly. (Doc. No. 165 at 25 ¶ 40).

25

Thus, because Schmidt’s alleged statements served the legitimate penological purpose of

26

preserving institutional order, they cannot establish a claim of retaliation.

27

As to Plaintiff’s claim that Schmidt threatened to rehouse him with Plaintiff, this assertion

28

is notably absent in his FAC. Plaintiff offers an explanation as to why it was not mentioned in his
21

1

602 regarding the incident, but does not explain why it was omitted from the FAC. An argument

2

based on new factual bases, akin to one based on new legal theories, is improperly raised at the

3

summary judgment stage. See Pena v. Taylor Farms Pac., Inc., 2014 WL 1330754, at *4 (E.D.

4

Cal. Mar. 28, 2014). The Ninth Circuit has held that new fact allegations asserted in response to

5

a summary judgment motion that go “beyond” those alleged in the complaint may be disregarded,

6

on the ground that the defendant had “no notice of the specific factual allegations presented for

7

the first time in . . . opposition to summary judgment.” Pickern v. Pier 1 Imports (U.S.), Inc., 457

8

F.3d 963, 968–69 (9th Cir. 2006). Because Plaintiff never alleged in his FAC that Schmidt

9

threatened to rehouse him with Inmate Cedric, a new and significant factual assertion, the Court

10
11

will disregard this separate claim of retaliation.
Finding that Plaintiff’s claims as to his conversation with Defendant Schmidt do not

12

establish the basis of a retaliation claim, the undersigned recommends Defendant Schmidt be

13

granted summary judgment on Claim 4.

14

4. Schmidt, Yerton, and Escarcega Re-Housing Plaintiff With Inmate Cedric

15
16

Jones (Claim 4)
Plaintiff’s next claim asserts that Defendants Schmidt, Yerton, and Escarcega rehoused

17

Plaintiff with inmate Cedric in retaliation for his filing of grievances. (Doc. No. 164 at 15).

18

Defendants submit evidence that Schmidt, Yerton and Escarcega were not involved in Plaintiff

19

being rehoused with inmate Cedric in July of 2014. In fact, the evidence reflects that Defendant

20

Yerton was not working on July 24, 2014, the date Plaintiff’s was reassigned to a cell with inmate

21

Cedric Jones. The Court takes judicial notice of its findings of fact issued in relation to

22

Defendant Nelson’s motion for summary judgment and Plaintiff being rehoused with inmate

23

Cedric Jones on July 24, 2014. In addition to the undisputed facts discussed above, the Court

24

found the following facts unrefuted.

25

•

On July 24, 2014, Captain Jay Jones instructed Defendant Nelson to find housing

26

in Unit 2 for Plaintiff, so Plaintiff could resume his second watch porter position.

27

(Doc. No. 85-4 at 22 ¶ 20).

28

•

Unit 2 was close to full at the time, “making it difficult to unilaterally move an
22

1

inmate.” Defendant Nelson learned all other inmates in Unit 2 were getting along

2

with their cellmates and examined all available housing option in Unit 2 “with the

3

considerations including the functioning programming going on throughout the

4

unit.” (Id.). A copy of the available bed inventory dated July 30, 2014 for Unit 2

5

is attached to Nelson’s declarations. (Doc. No. 85-4 at 29-33). The inventory

6

reveals 6 vacant beds, 5 of which are upper bunks. (Id.). The sole lower bunk in

7

114 did not become available on July 29, 2014, which was five days after Plaintiff

8

had been moved. (Id).

9

•

Nelson identified two potential cellmates available in Unit 2: inmate Cedric or an

10

inmate who was a “Southern California Skinhead” who had a lower-bunk medical

11

limitation. Plaintiff also had a lower-bunk medical limitation and thus could only

12

have a cell mate who had no issues with being assigned a top bunk. (Doc. No. 85-

13

4 at 22 ¶ 21).

14

•

There was no evidence in the record to suggest that there was a conflict or reason

15

why Plaintiff and inmate Cedric could not be housed together. Inmate Cedric and

16

Plaintiff were not documented enemies. (Doc. No. 85-4 at 22-23 ¶ 21).

17

•

Defendant Nelson reviewed the confidential and miscellaneous files for Plaintiff

18

and inmate Cedric and both inmates’ history of aggression. Nelson found nothing

19

had changed since they were previously housed together. In reviewing the files,

20

Defendant Nelson saw Plaintiff’s June 28, 2014 housing change was simply noted

21

as a “cell swap” and there was no notation that Plaintiff could not be rehoused with

22

inmate Cedric. Nelson personally witnessed on his unannounced visits in June

23

2014 “both inmates sitting together on the lower bunk, laughing and playing

24

dominoes.” (Doc. No. 85-4 at 22-23 ¶ 21).

25

•

Sergeant Ignacia Vera, who is not named as a Defendant, reviewed and approved a

26

Bed Request Batch for inmate Cedric’s move into Cell 148. Meanwhile, another

27

correctional officer issued a Bed Batch Request concerning Unit 3 to move

28

Plaintiff to Unit 2, Cell 148. And Sergeant Davis, who is not named as a
23

1

Defendant, reviewed and approved that Bed Batch Request. Central Control then

2

reviewed and processed the Bed Batch Request, and Plaintiff and inmate Cedric

3

were moved that day on July 24, 2014. (Doc. No. 85-4 at 23 ¶ 24).

4

•

On July 24, 2014, Nelson escorted Plaintiff to a cell located in Building 2, where

5

inmate Cedric already was located. Plaintiff did not refuse to enter the cell with

6

inmate Cedric. Instead, he went into the cell without saying a word and was not

7

forced in any way. (Doc. No. 85-4 at 23 ¶ 22). Had Plaintiff refused to enter the

8

cell, Nelson would not have required him to enter the cell and instead would have

9

placed him in the dayroom and alerted a supervisor. (Id.).

10

•

Defendant Nelson had no decision-making authority as to Plaintiff’s safety

11

Classification or his housing restriction. (Doc. No. 85-4 at 21-22 ¶ 18; 23 ¶ 21).

12

At his deposition, Plaintiff agreed that his cell move had to be approved by

13

Defendant’s superior officer and acknowledged Defendant Nelson did not make

14

the decision on his own “but would have had to come from the top.” (Doc. No.

15

85-4 at 14:1-9). Defendant Nelson adhered to CDCR regulations and CDCR’s

16

operations manual when evaluating where to rehouse Plaintiff. (Doc. No. 85-4 at

17

24-24, ¶ 30).

18

•

On July 24, 2014, Plaintiff submitted a Form 22, complaining about being placed

19

back into a cell with inmate Cedric. This Form 22 was accepted and processed

20

according to CDCR rules and regulations. (Doc. No. 85-4 at 35). On August 11,

21

2014, Plaintiff filed a 602 against Defendant Nelson. (Doc. No. 85-4 at 15:3-7).

22

Plaintiff had not previously filed a grievance against Defendant Nelson prior to

23

this date. (Id.).

24

•

On July 30, 2014, correctional officials moved Plaintiff from the cell with inmate

25

Cedric. Nonetheless, the two continued to live in the same housing unit without

26

incident. On November 23, 2014, correctional officials moved Plaintiff to a

27

different housing unit. (Doc. No. 85-4 at 24 ¶ 28).

28

As noted in the October 14, 2022 Findings and Recommendations, Plaintiff was rehoused
24

1

with inmate Cedric in response to Plaintiff’s own request to move back to the housing unit and

2

the lack of suitable alternative housing. Legitimate penological interests will defeat a retaliation

3

claim. See Barnett, 31 F.3d at 815; Bruce, 351 F.3d at 1289-90. Here, the legitimate penological

4

interest was the need to place Plaintiff and other inmates in cells that complied with any safety-

5

related restrictions and thereby ensure inmate safety. Further, the Court is required to “‘afford

6

appropriate deference and flexibility’ to prison officials in the evaluation of proffered legitimate

7

penological reasons for conduct alleged to be retaliatory.” Pratt, 65 F.3d at 807 (quoting Sandin,

8

515 U.S. at 482).

9

The evidence of record shows that rehousing Plaintiff with inmate Cedric was: (1) initially

10

precipitated by Plaintiff’s desire to regain his second watch porter job; (2) initiated by Captain Jay

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Jones; (3) suggested by (former and dismissed defendant) Nelson after evaluating and considering

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all available housing options and criteria; (4) reviewed and approved by (nondefendant) Sergeant

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Ignacia Vera; and (5) reviewed and approved by (nondefendant) Sergeant Davis. There is no

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evidence that Schmidt, Yerton (who was not at work the day of the move), and Escarcega had any

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involvement in the rehousing, yet alone that they did so based on a retaliatory motive.

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Moreover, double celling Plaintiff with inmate Cedric does not constitute an “adverse

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action” based on the undisputed facts presented. Pursuant to Cal. Code Regs. Tit. 15, § 3269,

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inmates are not entitled to single cell housing and in fact the norm is double celling. Nor are

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inmates entitled to a cell of their choice or a cellmate of their choice. See Mooring v. San

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Francisco Sheriff's Dep't, 289 F. Supp. 2d 1110, 1119 (N.D. Cal. 2003). Further, there is no

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evidence that any correctional official involved in Plaintiff’s rehousing viewed placing Plaintiff in

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the same cell as inmate Cedric as a punishment.

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The record here thus contains no genuine dispute as to whether Escarcega, Yerton, and

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Schmidt were involved in the actions giving rise to this claim. Mere speculation that Defendants

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acted out of retaliation is not sufficient. Wood, 753 F.3d at 905. Direct or circumstantial

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evidence of retaliation is required, and Plaintiff has not provided either. McCollum v. Cal. Dep’t

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of Corr. & Rehab., 674 F.3d 870, 882 (9th Cir. 2011). Accordingly, for the reasons set forth

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above, the undersigned recommends the district court find Defendants Schmidt, Yerton, and
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Escarcega are entitled to summary judgment as a matter of law as to Claim 4.

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5. Jones’ Destruction of, or Refusal to Forward Plaintiff’s
March 20, 2014 Grievance (Claim 5)

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In his fifth and final retaliation claim, Plaintiff claims Defendant Jones destroyed or

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refused to forward Plaintiff’s March 20, 2014 inmate grievance appeal because Jones thought the

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appeal was frivolous. (See Doc. No. 19 at 16-17; Doc. No. 165 at 34 ¶ 58). The grievance appeal

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at issue concerns grievance No. CCI-0-01-0024, in which Plaintiff disputed his finding of guilt

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for possession of a cell phone and charger.

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The parties agree that Plaintiff filed the appeal, it was received by the appeals office, and

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was “screened out” on March 11, 2014, requiring Plaintiff to remedy certain deficiencies and

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resubmit it. (Doc. No. 129-7 at 3; Doc. No. 165 at 33 ¶ 55). In his opposition, Plaintiff asserts

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that he resubmitted the appeal on March 20, 2014, that it was collected by Sergeant Rhodes on the

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morning of March 21, 2014, and it would have been delivered to Defendant Jones’ office, but the

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“appeal was never processed”; Plaintiff attaches copies of documents purporting to show the

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destroyed or withheld appeal, a filing receipt for the resubmitted appeal signed by Defendant

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Nelson, and a copy of the Daily Activity Report for March 21, 2014, showing that Rhodes was

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responsible for picking up appeals that day. (Doc. No. 165 at 33, ¶¶ 55-56, 249-59).

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Plaintiff also asserts that on July 31, 2014, four months after he resubmitted the appeal,

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Jones admitted to having held it in his office. (Doc. No. 165 at 34 ¶ 58.) Jones allegedly asked

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Plaintiff why he was “wasting [his] time” appealing the RVR. (Id.). Jones indicated it was

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obvious to him that Plaintiff was guilty and that Jones “remember[ed] when [Plaintiff] was caught

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with the phone, I was on the yard that day.” (Id.). Jones then stated to Villery that the appeal was

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“sitting in [his] office, where it’s going to stay, because I think you’re a liar.” (Id.).

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In his deposition in this case, Plaintiff admits to having been in possession of the cell

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phone and charger in violation of prison rules. “I got [the phone] from an officer at Lancaster and

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I got caught coming through back from the x-ray machines on my property on January 15th, 2014.

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I was issued a disciplinary write-up for it.” (Doc. No. 129-3 at 9:8-13). Plaintiff commented that

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it was “stupid” of him. (Id.).
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As an initial matter, even assuming that Plaintiff’s account of the July 31, 2014 interview

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with Jones is accurate, which Jones denies, the Court finds Plaintiff’s retaliation claim fails

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because the appeal was frivolous. An inmate has an undisputed First Amendment right to file

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grievances against prison officials on his own behalf. See Noble v. Schmitt, 87 F.3d 157, 162 (6th

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Cir. 1996). This right is protected, however, only if the grievances are not frivolous. See Lewis v.

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Casey, 518 U.S. 343, 353 (1996) (“Depriving someone of a frivolous claim . . . deprives him of

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nothing at all, except perhaps the punishment of Federal Rule of Civil Procedure 11 sanctions.”);

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“Prisoners’ grievances, unless frivolous . . . , concerning the conditions in which they are being

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confined are deemed petitions for redress of grievances and thus are protected by the First

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Amendment.” Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001, 1005 (7th Cir. 2005) (emphasis

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added). Here, there is no dispute of material fact that Plaintiff’s appeal of his guilty finding was

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frivolous. Plaintiff admits that he was guilty of the underlying RVR, and so any appeal of the

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decision was made in bad faith and therefore frivolous.

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Moreover, assuming that Defendant Jones impeded Plaintiff’s appeal, there is no evidence

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to indicate Jones’ conduct had any chilling effect on Plaintiff’s filing of further appeals; in fact,

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the record shows that he filed numerous other grievances and appeals while at CCI. (See Doc.

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No. 129-7 at 5-7). While the Ninth Circuit has held that a plaintiff need not demonstrate “a total

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chilling” of his First Amendment activity to perfect a retaliation claim, it nevertheless requires

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some allegation that plaintiff’s First Amendment rights were chilled, if not silenced. Rhodes v.

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Robinson, 408 F.2d 559, 568-69 (9th Cir. 2005). Here, Plaintiff does not assert that his First

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Amendment rights were chilled in any way. Indeed, Plaintiff’s record of prolific First

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Amendment activity at CCI subsequent to the purported July 31, 2014 conversation would

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strongly belie such a claim. Accordingly, Plaintiff cannot establish another of the essential

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elements of a retaliation claim: a chilling of his First Amendment rights.

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Finally, even assuming Plaintiff’s appeal was lost or not timely processed, there is no

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constitutional right to an adequate prison administrative appeal or grievance system. See Wolff v.

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McDonnell, 418 U.S. 539, 565 (1974) (accepting that Nebraska did not provide administrative

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review of disciplinary decisions); Garfield v. Davis, 566 F.Supp. 1069, 1074 (E.D. Pa. June 1,
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1

1983) (dismissing allegations with respect to administrative review of disciplinary decision

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because no right to such review). Nor has California adopted regulations from which a

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constitutionally protected interest in such a system could arise. California Code of Regulations,

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title 15 sections 1073 and 3084 grant prisoners a purely procedural right: the right to have a

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prison appeal. The regulations simply require the establishment of a procedural structure for

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reviewing prisoner complaints and set forth no substantive standards; instead, they provide for

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flexible appeal time limits, see Cal. Code Regs. tit. 15, § 3084.6, and, at most, that “no reprisal

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shall be taken against an inmate or parolee for filing an appeal.” Id. § 3084.1(d). Such a

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provision, which merely provides procedural requirements, even if mandatory, cannot form the

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basis of a constitutionally cognizable liberty interest. See Smith v. Noonan, 992 F.2d 987, 989

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(9th Cir. 1993) (statute or regulation must place substantive limitations on official discretion to

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form basis of constitutionally protected liberty interest); see also Cage v. Cambra, 1996 WL

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506863, at *1 (N.D. Cal. Aug. 19, 1996) (denying § 1983 claim based on prison officials’ failure

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to properly process and address administrative appeals because no constitutional right to

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grievance process). Accordingly, Plaintiff can at most establish a violation of prison regulations,

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not a constitutional right.

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Based on the foregoing, there is no genuine dispute that Plaintiff fails to establish the

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essential elements of a retaliation claim with regards to his March 20, 2014 grievance appeal and

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the undersigned recommends the district court grant summary judgment for Defendant Jones on

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this claim.

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Accordingly, it is RECOMMENDED:

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The district court GRANT Defendants Jones, Yerton, Schmidt, and Escarcega Motion for

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Summary Judgment (Doc. No. 129) and judgment be entered in their favor and this case closed.

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NOTICE TO PARTIES

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These findings and recommendations will be 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, a party may file written

28

objections with the court. The document should be captioned “Objections to Magistrate Judge’s
28

1

Findings and Recommendations.” Parties are advised that failure to file objections within the

2

specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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Dated:

September 12, 2023
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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