Bowell v. Montoya et al
Filing
100
FINDINGS and RECOMMENDATIONS, Recommending that Defendants' 90 Motion for Summary Judgment be Granted on the Basis of Claim Preclusion signed by Magistrate Judge Gary S. Austin on 05/10/2021. Referred to Judge Unassigned; Objections to F&R due within Fourteen-Days. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMES BOWELL,
Plaintiff,
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vs.
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F. MONTOYA, et al.,
Defendants.
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1:17-cv-00605-NONE-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
BE GRANTED ON THE BASIS OF CLAIM
PRECLUSION
(ECF No. 90.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS
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I.
BACKGROUND
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James Bowell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s
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First Amended Complaint, filed on May 3, 2018, against defendants Correctional Counselors F.
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Montoya and D. Carter for violation of due process under the Fourteenth Amendment, and
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against defendants Correctional Officers R. Killmer and S. Lopez for conspiracy to place Plaintiff
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at risk of serious harm and failure to protect Plaintiff under the Eighth Amendment. (ECF No.
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16.)1
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On October 25, 2018, the court issued an order dismissing all other claims and defendants from
this case, for Plaintiff’s failure to state a claim. (ECF No. 20.)
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On January 25, 2021, defendants Killmer, Montoya, Lopez, and Carter (“Defendants”)
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filed a motion for summary judgment. (ECF No. 90.) On February 3, 2021, Plaintiff filed an
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opposition to the motion. (ECF No. 92.) On February 9, 2021, Defendants filed a reply to
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Plaintiff’s opposition. (ECF No. 93.) Defendants’ motion for summary judgment is deemed
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submitted. Local Rule 230(l).
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II.
PLAINTIFF’S ALLEGATIONS
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Plaintiff’s factual allegations in the operative First Amended Complaint follow2:
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Plaintiff has been incarcerated since July 31, 1991. In Plaintiff’s CDCR-SOMS
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Classification Chrono dated November 19, 2015, defendants Montoya and Carter incorporated
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fraudulent charges from Plaintiff’s police criminal rap sheet, reflecting Plaintiff’s arrest on April
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4, 1987, for Willful Child Cruelty. Plaintiff was labeled a sex offender or child molester with an
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institutional “R” suffix placed onto the Chrono. Plaintiff alleges that the fraudulent information
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had nothing to do with his prison commitment offense, “one count of /failure to register/ PC 290
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25 years to life sentence based upon PC 220 assault.” ECF No. 16 at 3 ¶IV. Defendants Lopez
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and Killmer, intent on exercising their power and view created by defendant Montoya and
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defined via defendant Carter, interpreted an element having nothing to do with Plaintiff’s primary
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offense. C/O Killmer told inmates that Plaintiff was incarcerated for rape after reviewing the
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prison computer system institutional SOMS Chrono that showed an arrest for rape with no
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disposition listed.
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C/O Lopez gave inmate Sean Shupp the November 19, 2015, Chrono reflecting Plaintiff’s
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life sentence, sex offender label with no visits with minors, and “R” suffix. Plaintiff believes
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that defendants Killmer and Lopez intended to have Plaintiff murdered. On December 14, 2015,
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Plaintiff was assaulted by two inmates, Solman and Barger, on the CCI Facility A-yard. Plaintiff
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was attacked from behind and hit the ground knocked out cold. Plaintiff suffered a head injury,
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Plaintiff’s First Amended Complaint is verified and his allegations constitute evidence where
they are based on his personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23
(9th Cir. 2004). The summarization of Plaintiff’s claims in this section should not be viewed by the parties as a
ruling that the allegations are admissible. The court will address, to the extent necessary, the admissibility of
Plaintiff’s evidence in the sections which follow.
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loss of hearing in his right ear, knee injury, and injury to his right eye causing him to see spots
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and lines. Plaintiff alleges that he was attacked because of the November 19, 2015 Chrono and
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rape allegation that was ultimately dismissed in the interest of justice.
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Later, Sgt. Doser and Lt. Hart set Plaintiff up to be assaulted again by placing inmates
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Solman and Barger back onto the same yard facility. The inmates should have been placed in
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administrative segregation and charged with battery on a prisoner. Sgt. Doser attempted to diffuse
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the original paperwork which described a crime of violence. The sole purpose of Defendants’
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actions was to harm Plaintiff. Sgt. Doser and Lt. Hart made a false entry on the record with the
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intent to murder Plaintiff, so they could silence his litigation.
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Plaintiff seeks monetary damages.
III.
PLAINTIFF’S CLAIMS -- LEGAL STANDARDS
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On October 25, 2018, the court found that Plaintiff states cognizable claims in the First
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Amended Complaint against defendants Montoya and Carter for violation of due process under
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the Fourteenth Amendment, and against defendants Killmer and Lopez for conspiracy to place
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Plaintiff at risk of serious harm and failure to protect Plaintiff under the Eighth Amendment.
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(ECF No. 20.)
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1.
Due Process – Fourteenth Amendment Claim
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The Due Process Clause protects prisoners from being deprived of liberty without due
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process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action
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for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty
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interest for which the protection is sought. Liberty interests may arise from the Due Process
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Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983).
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The Due Process Clause itself does not confer on inmates a liberty interest in a particular
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classification status. See Moody v. Daggett, 429 U.S. 78, 88, n.9 (1976). The existence of a
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liberty interest created by state law is determined by focusing on the nature of the deprivation.
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Sandin v. Conner, 515 U.S. 472, 481-84 (1995). Liberty interests created by state law are
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generally limited to freedom from restraint which “imposes atypical and significant hardship on
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the inmate in relation to the ordinary incidents of prison life.” Id. at 484. The assignment of an
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“R” suffix and the resulting increase in custody status and loss of privileges, without more,
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simply do not “impose[] atypical and significant hardship on the inmate in relation to the ordinary
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incidents of prison life.” Id.; Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997); Cooper v.
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Garcia, 55 F.Supp.2d 1090, 1101 (S.D. Cal. 1999); Johnson v. Gomez, No. C95-20717 RMW,
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1996 WL 107275, at *2-5 (N.D. Cal. 1996); Brooks v. McGrath, No. C 95- 3390 SI, 1995 WL
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733675, at *1-2 (N.D. Cal. 1995). However, under certain circumstances, labeling a prisoner
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with a particular classification may implicate a liberty interest subject to the protections of due
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process. Neal, 131 F.3d at 827 (“[T]he stigmatizing consequences of the attachment of the ‘sex
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offender’ label coupled with the subjection of the targeted inmate to a mandatory treatment
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program whose successful completion is a precondition for parole eligibility create the kind of
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deprivations of liberty that require procedural protections.”)
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To state a potentially colorable due process claim based on the allegedly improper
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classification as a sex offender, plaintiff must allege that the classification error caused him to be
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subjected to “atypical and significant hardship . . . in relation to the ordinary incidents of prison
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life.” Sandin, 515 U.S. at 484.
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If a prisoner has a liberty interest in avoiding a sex offender label, he is constitutionally
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entitled to all of the process due under the standards set forth in Wolff, 418 U.S. at 539 (1974).
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See Sandin, 515 U.S. at 482 (“The time has come to return to the due process principles we
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believe were correctly established and applied in Wolff and Meachum3”). See also Keenan v.
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Hall, 83 F.3d 1083 (9th Cir. 1996) (embracing this proposition in the context of a prisoner’s suit
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to participate in a hearing to determine his re-classification). “Due process requires that the
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inmate be notified of the reasons for his classification as a sex offender without the inmate’s
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having to request that information.” Neal, 131 F.3d at 832. “An inmate whom the prison intends
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to classify as a sex offender is also entitled to a hearing at which he must be allowed to call
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witnesses and present documentary evidence in his defense.” Id. at 831.
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///
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Meachum v. Fano, 427 U.S. 215 (1976).
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2.
Failure to Protect – Eighth Amendment Claim
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The Eighth Amendment protects prisoners from inhumane methods of punishment and
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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
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2006). Although prison conditions may be restrictive and harsh, prison officials must provide
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prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v.
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Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted). Prison
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officials have a duty to take reasonable steps to protect inmates from physical abuse. Id. at 833;
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Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect
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inmates from attacks by other inmates may rise to the level of an Eighth Amendment violation
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where prison officials know of and disregard a substantial risk of serious harm to the plaintiff.
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Id.; e.g., Farmer, 511 U.S. at 847. To establish a violation of this duty, the prisoner must establish
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that prison officials were “deliberately indifferent to a serious threat to the inmate’s safety.”
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Farmer, 511 U.S. at 834. The question under the Eighth Amendment is whether prison officials,
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acting with deliberate indifference, exposed a prisoner to a sufficiently “substantial risk of serious
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harm” to his or her future health. Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)).
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The Supreme Court has explained that “deliberate indifference entails something more than mere
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negligence . . . [but] something less than acts or omissions for the very purpose of causing harm
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or with the knowledge that harm will result.” Farmer, 511 U.S. at 835. The Court defined this
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“deliberate indifference” standard as equal to “recklessness,” in which “a person disregards a risk
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of harm of which he is aware.” Id. at 836-37. The deliberate indifference standard involves both
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an objective and a subjective prong. First, the alleged deprivation must be, in objective terms,
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“sufficiently serious.” Id. at 834. Second, subjectively, the prison official must “know of and
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disregard an excessive risk to inmate health or safety.” Id. at 837; Anderson v. County of Kern,
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45 F.3d 1310, 1313 (9th Cir. 1995). To prove knowledge of the risk, however, the prisoner may
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rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to
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establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir.
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1995).
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3.
Conspiracy to Place Plaintiff at Risk of Serious Harm
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In the context of conspiracy claims brought pursuant to section 1983, a complaint must
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“allege [some] facts to support the existence of a conspiracy among the defendants.” Buckey v.
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County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992); Karim-Panahi v. Los Angeles Police
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Department, 839 F.2d 621, 626 (9th Cir. 1988). Plaintiff must allege that defendants conspired
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or acted jointly in concert and that some overt act was done in furtherance of the conspiracy.
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Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974). A conspiracy claim brought under
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section 1983 requires proof of “‘an agreement or meeting of the minds to violate constitutional
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rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting United Steel Workers of
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Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540- 41 (9th Cir. 1989) (citation omitted)), and an
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actual deprivation of constitutional rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006)
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(quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To
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be liable, each participant in the conspiracy need not know the exact details of the plan, but each
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participant must at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at
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441 (quoting United Steel Workers, 865 F.2d at 1541).
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IV.
SUMMARY JUDGMENT STANDARD
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Any party may move for summary judgment, and the court shall grant summary judgment
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if the movant shows that there is no genuine dispute as to any material fact and the movant is
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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted);
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Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position,
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whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular
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parts of materials in the record, including but not limited to depositions, documents, declarations,
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or discovery; or (2) showing that the materials cited do not establish the presence or absence of
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a genuine dispute or that the opposing party cannot produce admissible evidence to support the
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fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider other materials
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in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3);
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Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord
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Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
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Defendant does not bear the burden of proof at trial and in moving for summary judgment,
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he or she need only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp.
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Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323,
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106 S.Ct. 2548 (1986)). If the defendant meets his or her initial burden, the burden then shifts to
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the plaintiff “to designate specific facts demonstrating the existence of genuine issues for trial.”
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Id. This requires the plaintiff to “show more than the mere existence of a scintilla of evidence.”
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Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).
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However, in judging the evidence at the summary judgment stage, the court may not make
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credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509
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F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all
inferences in the light most favorable to the nonmoving party and determine whether a genuine
issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v.
City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).
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The court determines only whether there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d
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1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).
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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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V.
DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS
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Defendants submitted the following statement of facts in support of their motion for
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summary judgment. (ECF No. 90-3.) This statement of undisputed facts is submitted solely for
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the purpose of this motion for summary judgment.
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I.
BOWELL RAISED THE SAME CLAIMS IN A PREVIOUSLY
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DISMISSED STATE-HABEAS PETITION.
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A.
Bowell’s Habeas Corpus Petition
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1. In February 2016, Bowell filed a petition for writ of habeas corpus in
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state court making numerous allegations regarding his assault on December 14,
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2015. (Defs.’ Request for Judicial Notice (RJN) Ex 1.)
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2. As relevant here, Bowell alleged that Counselors Montoya and Carter
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attempted to have him murdered and placed in harm’s way “on the basis of an ‘R’
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suffix fraudulent paperwork, improper practices and the Due Process of the CDC-
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602 grievances listed herein…” (Id. at RJN004.)
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3. Bowell further alleged that Officer Killmer had him “attacked on 12-
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14-15 by two prisoners because of my ‘R’ suffix alleged sex offender rape
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offense.” (Id. at RJN002.)
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4. In addition, Bowell alleged that Officer Lopez intentionally gave
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“computer generated paperwork” to another inmate in order to have Bowell
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attacked. (Id. at RJN002-003.)
5. Bowell alleged these actions, among others, amounted to “cruel and
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unusual punishment” under the California constitution. (Id. at RJN003-004.)
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6. Bowell also alleged that he had “no other alternative but to lodge in this
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court’s jurisdiction my formal complaint pursuing safety…” and requested that
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the Court order the Warden at California Correctional Institution (CCI) to respond
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to his “grievance complaint forthwith.” (Id. at RJN005-007.)
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7. Finally, Bowell attached requests to CDCR officials that allegedly went
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unanswered, as well as an affidavit reiterating his claims against Defendants. (Id.
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at RJN005-007.)
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B.
Bowell’s “Supplemental Evidence” to his Habeas Petition
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8. In May 2016, Bowell filed a document titled “Supplemental Evidence
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of Wrongdoing Reckless Disregard of Constitutional Rights Obligation to
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Respond,” in which he alleged that Counselor Montoya “unlawfully put alleged
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PC 273 Willful Child Cruelty arrest… onto a classification chrono with ‘R’ suffix
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making at appear as if I am a child molester.” (RJN Ex. 2 at RJN014.)
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9. Bowell also attached the November 18, 2015 chrono authored by
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Counselors Montoya and Carter, along with his administrative appeal related to
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his allegations against Defendants. (Id. at RJN019-021.)
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10. Finally, Bowell requested that the court also order CCI’s Warden to
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process his administrative appeal, in addition to providing him “any further relief
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deemed appropriate.” (Id. at RJN015.)
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C.
The Superior Court’s Orders
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11. The superior court ruled on Bowell’s petition in June 2016, describing
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his contentions therein as including “a multitude of allegations centering around
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having been assaulted by two inmates.” (RJN Ex. 3 at RJN048.)
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12. As relevant here, the court noted that his allegations included “a
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conspiracy on the part of prison officials with inmates to murder him; daily threats
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of harm by correctional officers; [and] fraudulent paper work contributing to an
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‘R’ Suffix which keeps him in danger of being assaulted.” (Id.)
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13. The court held that Bowell’s “concerns regarding the conspiracy to
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have him murdered by prison personnel appear to be without evidence and
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conclusory.” (Id.)
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14. The court also noted that, if necessary, Bowell could have utilized
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CDCR’s emergency appeals mechanism to address his safety concerns. (Id. at
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RJN049.)
15. Thus, Bowell’s petition was denied with prejudice. (Id. at RJN047,
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049.)
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16. Bowell then filed a petition for rehearing, arguing, for the first time,
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that the court should order CDCR’s Chief of Appeals to process his grievance.
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(RJN Ex. 4 at RJN051-052.)
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17. The court responded to the petition, explaining that “the basis of
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[Bowell’s] claim is conspiracy on the part of the prison to deny his constitutional
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rights, harm him, and theft of his mail,” and finding that Bowell was “attempting
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to relitigate matters addressed” by the court in its June 2016 ruling. (RJN Ex. 5 at
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RJN087.)
18. Thus, the court found that Bowell’s petition remained denied with
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prejudice. (Id. at RJN086-087.)
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19. The superior-court docket does not reflect that the judgment was ever
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appealed or overturned. (RJN Ex. 6.)
II.
BOWELL WAS ASSIGNED AN “R” SUFFIX BY NON-DEFENDANTS IN
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1991, AND THE “R” SUFFIX CONTINUED WHEN HE RE-ENTERED
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CDCR CUSTODY IN 2000.
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20. Various suffixes, like an “R” suffix, may be affixed to an inmate’s
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custody designation to indicate additional information relevant to the inmate’s
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classification. (Carter Decl., ¶ 3; Cal. Code Regs. tit. 15 §§ 3377.1(c), (d) (rev.
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2016).)4
21. An “R” suffix indicates that an inmate has a history of specific sex
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offenses. (Carter Decl., ¶ 3; Cal. Code Regs. tit. 15 § 3377.1(b).)
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22. At any time during incarceration, a classification committee may affix
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an “R” suffix to an inmate’s custody designation if the inmate has a record of
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arrest, detention, or has been charged with any offense listed in California Penal
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Code section 290. (Carter Decl., ¶ 3; Cal. Code Regs. tit. 15 § 3377.1(b)(3).)
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23. The only effect of having an “R” suffix affixed is that the inmate
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cannot be housed at a Level I facility or camp (the lowest of four security levels),
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and instead must be housed at a facility with a secure perimeter (Level II or
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All citations to the California Code of Regulations are to the provisions operative in
January 2016, at the time of Bowell’s allegations against Defendants.
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above). (Carter Decl., ¶ 3; see Cal. Code Regs. tit. 15 §§ 3377 (describing facility
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security levels), 3377.1(b)(10) (inmates with “R” suffix “shall not be assigned
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outside the security perimeter”).)
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24. In 1991, Bowell was convicted of Assault with Intent to Rape under
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California Penal Code § 220, which is a registrable offense under the Sex Offender
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Registration Act.5 (Miller Decl., Ex. I, Pl.’s Dep. at 22:13-18; RJN Ex. 7; see Cal.
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Penal Code § 290(c).)
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25. Thus, shortly after his incarceration with the California Department of
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Corrections and Rehabilitation (CDCR), he was assigned an “R” Suffix by non-
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party CDCR officials. (Miller Decl., Ex. I, Pl.’s Dep. at 35:19-36:23; Telles Decl.,
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¶ 3, Ex. A; Carter Decl. ¶ 3; see Cal. Code Regs. tit. 15 § 3377.1(b) (“R” suffix
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shall be affixed to inmates required to register under Penal Code § 290).
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26. Bowell was released on parole in October 1997. (Telles Decl., ¶ 4, Ex.
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B.)
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27. In December 1999, Bowell was charged with failure to register as a
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sex offender. (RJN Ex. 8 at RJN094-096.)
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28. In September 2000, Bowell was convicted by a jury for failure to
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register as a sex offender. (RJN Ex. 9 at RJN097; Miller Decl., Ex. I, Pl.’s Dep.
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at 23:19-23, 33:21-25).
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29. Upon Bowell’s re-admission to CDCR, the “R” suffix remained
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assigned to his custody designation based on his sex crimes. (Miller Decl., Ex. I,
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Pl.’s Dep. at 35:19-36:23; Telles Decl., ¶ 6, Exs. D, E.)
30. Bowell is still incarcerated, and he still has the “R” suffix affixed to
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his custody designation. (Telles Decl., ¶¶ 2, 10.)
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2 California Penal Code § 290—the “Sex Offender Registration Act”—governs who is
required to register as a sex offender: individuals “convicted in any court of this state or in any federal or military
court” of various enumerated sex offenses.
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III.
COUNSELORS MONTOYA AND CARTER HELD A CLASSIFICATION
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HEARING FOR BOWELL IN 2015, BUT DID NOT ASSIGN HIS “R”
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SUFFIX.
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31. On November 18, 2015, Counselors Montoya and Carter, as well as
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another CDCR official, held an initial Unit Classification Committee hearing to
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review Bowell’s case factors and housing status. (Carter Decl., ¶ 3; Montoya
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Decl., ¶ 2; Telles Decl., ¶ 7, Ex. F.)
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32. Shortly before the hearing, Counselor Montoya asked Bowell if he
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would like to waive his right to seventy-two hours’ advance notice of the hearing
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or proceed with the hearing at a later date. (Montoya Decl., ¶ 3.)
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33. Bowell indicated that he wanted to waive his right to seventy-two
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hours’ notice, and signed a document affirming this waiver. (Montoya Decl., ¶ 3;
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Telles Decl., ¶ 9, Ex. H.)
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34. The committee did not assign Bowell’s “R” suffix during the hearing,
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or at all. (Carter Decl., ¶ 6; Montoya Decl., ¶ 4; Miller Decl., Ex. I, Pl.’s Dep. at
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35:19-36:23; 39:12-40:9; Telles Decl., ¶ 6, Exs. D, E; Pl.’s Amen. Compl, ECF
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No. 17 at 17; Telles Decl., ¶ 9, Ex. G.)
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35. The committee observed that Bowell’s California Law Enforcement
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Telecommunication System or “CLETS” rap sheet showed that he had been
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arrested or received in custody for “Willful Cruelty Child w/Possible Inj. Death”
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under California Penal Code 273(A). (Miller Decl., Ex. I, Pl.’s Dep. at 46:17-25,
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47:15-16; Pl.’s Amen. Compl, ECF No. 17 at 17; Carter Decl., ¶6; Montoya Decl.,
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¶ 6; Telles Decl., ¶ 9, Ex. G.)
36. The CLETS report indicated “no disposition available” for the willful
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child cruelty charge. (Telles Decl., ¶ 9, Ex. G.)
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37. Bowell, however, admits he pled guilty to the willful child cruelty
charge. (Miller Decl., Ex. I, Pl.’s Dep. at 47:15-16.)
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38. In any event, CDCR regulations provide that even an inmate who has
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been arrested, but not convicted, of Penal Code 273(A) may have his visitation
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with minors limited to noncontact status. (Carter Decl., ¶ 6; Montoya Decl., ¶ 4;
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Cal. Code Regs. tit. 15 § 3173.1(e)-(f).)
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39. Thus, based on the CLETS information, the committee determined that
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Bowell was ineligible for contact visits with minors under section 3173.1 and
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documented this determination on his November 18, 2015 classification chrono.
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(Carter Decl., ¶ 6; Montoya Decl., ¶ 4; Telles Decl., ¶ 8, Ex. G.)
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40. This visiting restriction did not prevent Bowell from having any
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contact visits with minors because, as Bowell admits, he had no visitors to begin
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with. (Miller Decl., Ex. I, Pl.’s Dep. at 49:15-40:4.)
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IV.
OFFICERS KILLMER AND LOPEZ DID NOT SHARE OR DISTRIBUTE
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BOWELL’S
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INMATES.
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CLASSIFICATION
INFORMATION
WITH
OTHER
41. Officer Killmer did not allow inmate porters to look at his computer
screen and observe Bowell’s “R” suffix. (Killmer, ¶ 2.)
16
17
42. Bowell did not see Officer Killmer show any inmate information
regarding his sex crimes. (Miller Decl., Ex. I, Pl.’s Dep. at 66:1-6.)
18
19
43. Bowell cannot identify any witnesses who personally observed Officer
20
Killmer showing inmate information regarding his sex crimes to other inmates.
21
(Id. at 67:8-69:23.)
44. Officer Lopez did not share Bowell’s November 18, 2015 chrono with
22
23
inmate Sean Shupp. (Lopez, ¶ 2.)
24
45. Bowell did not see Officer Lopez provide the chrono to Shupp. (Miller
Decl., Ex. I, Pl.’s Dep. at 73:3-75:16.)
25
26
46. Inmate Shupp did not tell Bowell that he received a chrono from
27
28
Officer Lopez. (Id. at 87:24-88:3.)
///
13
1
47. Bowell has not identified any witnesses who observed Officer Lopez
2
sharing the chrono. (Id. at 87:24-88:3.)
3
V.
4
BOWELL SPECULATES THAT HE WAS ASSAULTED BY TWO
INMATES BECAUSE OF OFFICERS KILLMER AND LOPEZ.
5
48. Bowell was assaulted by two inmates on December 14, 2015, and
6
blames the assault on Officers Killmer and Lopez for allegedly sharing
7
information related to his sex-offender status with other inmates. (Amen. Compl.,
8
ECF No. 16 at 4.)
9
49. Over the years, Bowell had talked with other inmates about his rape
conviction. (Miller Decl., Ex. I, Pl.’s Dep. at 22:13-21, 88:4-8.)
10
11
50. Bowell had given other inmates legal documents related to his
12
conviction. (Id. 70:21- 23).
13
51. Bowell contends that other non-party officers had previously passed
14
out his classification chronos to inmates. (Id. at 87:4-23.)
15
52. When Bowell spoke to the inmates who attacked him, they did not
16
attribute the attack to any information provided to them by Officers Killmer or
17
Lopez. (Id. at 79:14-83:22.)
18
VI.
DEFENDANTS’ MOTION
19
Defendants’ evidence includes Plaintiff’s First Amended Complaint (ECF No. 16);
20
Declaration of Byron J. Miller, California Attorney General’s Office, defense counsel (ECF No.
21
90-4); Declaration of N. Telles, Litigation Coordinator at R.J. Donovan Correctional Facility
22
(ECF No. 90-5); Declaration of D. Carter, Defendant (ECF No. 90-6); Declaration of F. Montoya,
23
Defendant (ECF No. 90-7); Declaration of R. Killmer, Defendant (ECF No. 90-8); Declaration
24
of S. Lopez, Defendant (ECF No. 90-9); State Court Records; Plaintiff’s Prison Grievances; State
25
Regulations and Penal Code; Excerpts from Plaintiff’s Deposition taken on November 10, 2020
26
(ECF No. 90-10, Exh. I); and Prison Records.
27
///
28
///
14
1
Request for Judicial Notice
2
Defendants request the court to take judicial notice of state court records from prior
3
actions concerning Plaintiff. (ECF No. 90-11.) “Courts may only take judicial notice of
4
adjudicative facts that are not subject to reasonable dispute.” United States v. Ritchie, 342 F.3d
5
903, 908-09 (9th Cir. 2003) (citing Fed. R. Evid. 201(b)). “Facts are indisputable, and thus
6
subject to judicial notice, only if they either ‘generally known’. . . or capable of accurate and
7
ready determination by resort to sources whose accuracy cannot be questioned[.]” Id. at 909.
8
The Court may judicially notice the records and filing of other court proceedings. Tellabs,
9
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bennett v. Medtronic, Inc., 285
10
F.3d 801, 802 n.2 (9th Cir. 2002). In particular, we “may take notice of proceedings in other
11
courts, both within and without the federal judicial system, if those proceedings have a direct
12
relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v.
13
Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992); see also Smith v. Duncan, 297 F.3d 809, 815
14
(9th Cir. 2002) (taking judicial notice of the “relevant state court documents, because those
15
documents have a direct relationship to [petitioner’s habeas] appeal”), abrogation on other
16
grounds recognized by Moreno v. Harrison, 245 Fed.Appx. 606 (9th Cir. 2007).
17
Here, the documents at issue are state court records of Plaintiff’s prior actions at Kern
18
County Superior Court, Los Angeles County Superior Court, and California Court of Appeal,
19
which include claims previously raised and adjudicated in state court, as well as criminal
20
adjudications against Plaintiff.
21
Plaintiff neither denies the authenticity of the documents nor that he faced criminal
22
charges and filed a habeas corpus petition in state court relevant to the case at hand.
23
Consequently, the court takes judicial notice of the documents submitted by Defendants which
24
are part of the record from Plaintiff’s underlying state court matters.
25
26
A.
CLAIM-PRECLUSION DOCTRINE BARS PLAINTIFF’S CLAIMS
1.
Legal Standard
27
“Generally speaking, a prior judgment between the same parties ‘is res judicata on
28
matters which were raised or could have been raised, on matters litigated or litigable.’” Kim v.
15
1
Reins Int’l Cal., Inc., 9 Cal. 5th 73, 92-93 (2020) (emphasis added) (citation omitted). “Federal
2
courts . . . are required by federal law to apply res judicata to state court decisions.” S. Pac.
3
Transp. Co. v. Pub. Utils. Comm’n, 716 F.2d 1285, 1290 (9th Cir. 1983) (citing 28 U.S.C. §
4
1738). The Full Faith and Credit Act “requires federal courts to apply the res judicata rules of a
5
particular state to judgments issued by courts of that state.” Robi v. Five Platters, Inc., 838 F.2d
6
318, 322 (9th Cir. 1988) (citing Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 523 (1986)).
7
In California, “[c]laim preclusion arises if a second suit involves: (1) the same cause of
8
action (2) between the same parties [or parties in privity with them] (3) after a final judgment on
9
the merits in the first suit.” Furnace v. Giurbino, 838 F.3d 1019, 1023 (9th Cir. 2016) (quoting
10
DKN Holdings LLC v. Faerber, 61 Cal.4th 813, 189 Cal.Rptr.3d 809, 352 P.3d 378, 386 (2015)
11
(citing Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888, 123 Cal.Rptr.2d 432, 51 P.3d 297, 301
12
(2002)). Under the Full Faith and Credit Statute, 28 U.S.C. § 1738, federal courts must give the
13
same preclusive effect to state court judgments, including “reasoned” habeas judgments, as the
14
rendering state court would. Id. (quoting Gonzales v. Cal. Dep’t of Corr., 739 F.3d 1226, 1230–
15
31 (9th Cir. 2014) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104
16
S.Ct. 892, 79 L.Ed.2d 56 (1984)).
17
California courts, unlike federal courts, do not determine whether two suits involve the
18
same cause of action by applying the “same transaction or occurrence” or “common nucleus of
19
operative facts” test. Id. at 1024. In determining whether the case or controversy is the same,
20
California applies the “primary rights theory.” Boeken v. Philip Morris USA, Inc., 48 Cal. 4th
21
788, 797 (2010) (quoting Slater v. Blackwood, 15 Cal. 3d 791, 795 (1975)). Under the primary
22
rights theory, “[t]he cause of action is the right to obtain redress for a harm suffered, regardless
23
of the specific remedy sought or the legal theory (common law or statutory) advanced.” Id. at
24
798 (citing Bay Cities Paving & Grading, Inc. v. Lawyers’ Mut. Ins. Co., 5 Cal.4th 854, 860
25
(1993)). “The critical focus of primary rights analysis is the harm suffered.” Furnace, 838 F.3d
26
at 1024 (quoting Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir. 2016) (citations and internal
27
quotation marks omitted)).
28
///
16
1
Even where there are multiple legal theories upon which recovery might be predicated,
2
one injury gives rise to only one claim for relief. Hence a judgment for the defendant is a bar to
3
a subsequent action by the plaintiff based on the same injury to the same right, even though he
4
presents a different legal ground for relief. Id. (internal quotation marks omitted) (quoting Slater,
5
15 Cal. 3d at 795).
6
2.
Defendants’ Arguments
7
Defendants argue that Plaintiff’s claims are barred under California’s claim-preclusion
8
doctrine because before filing this action he had already raised and lost the same claims in a state-
9
court habeas corpus petition that was denied with prejudice.
10
(1)
Plaintiff Raised the Same Claims in his Habeas Action and this Action
11
Defendants provide evidence that in February 2016, Plaintiff filed a petition for writ of
12
habeas corpus in state court making numerous allegations regarding the December 14, 2015
13
assault (Request for Judicial Notice (RJN), ECF No. 90-11 at 6, RJN002),6 alleging that
14
Counselors Montoya and Carter attempted to have Plaintiff murdered and placed in harm’s way
15
“on the basis of an ‘R’ suffix fraudulent paperwork, improper practices and the Due Process of
16
the CDC-602 grievances listed herein . . . ,” (Id. at 8, RJN004.) Defendants argue that the primary
17
right asserted in Plaintiff’s prior habeas corpus petition, and in his amended complaint for this
18
action, is the same. As explained by the superior court, Plaintiff’s habeas petition concerned “a
19
multitude of allegations centering around having been assaulted by two inmates” on December
20
14, 2015,7 (RJN, ECF No. 90-11 at 55, RJN048), which is the same harm at issue in this § 1983
21
lawsuit, (See Amend. Cmp., ECF No. 16 at 4 (“On 12/14/15 I was . . . battered by inmates Solman
22
#F38684 and Barger #F46561 on the CCI Facility A Yard.”)
23
Defendants argue that both actions involve the same conduct. In both the habeas petition
24
and this lawsuit, Plaintiff blamed Counselors Montoya and Carter for the “‘R’ suffix fraudulent
25
paperwork” and “improper practices” with respect to his November 18, 2015 chrono (RJN, ECF
26
27
6
All page numbers cited herein are those assigned by the court's CM/ECF system and not
based on the parties’ pagination of their briefing materials.
28
7
Dated November 14, 2015 by the Superior Court (should be December 14, 2015).
17
1
No. 90-11 at 8, RJN004; RJN at 19, RJN014; RJN at 24-26, RJN019-021; Amend. Cmp., ECF
2
No. 16 at 3); alleged that Officer Killmer had him attacked on 12-14-15 by two prisoners because
3
of his “R” suffix alleged sex offender rape offense (RJN, ECF No. 90-11 at 6-7, RJN002-003;
4
Amend. Cmp., ECF No. 16 at 4); and alleged that Officer Lopez intentionally gave “computer
5
generated paperwork” to another inmate in order to have Plaintiff murdered, (RJN, ECF No. 90-
6
11 at 6-7, RJN002-003). Because both actions involve the same injury and wrongful conduct,
7
Defendants conclude that they both involve the same primary right.
8
(2)
The Prior State Action was a Final Judgment on the Merits
9
Defendants argue that because Plaintiff’s claims were substantively denied and the habeas
10
judgment has not been overturned, it is now final and entitled to preclusive effect. As evidence,
11
Defendants submit that after the judgment, Plaintiff filed a petition for rehearing, arguing, for the
12
first time, that the court should order CDCR’s Chief of Appeals to process his grievance. (RJN
13
Ex. 4 at RJN051-052.) The court responded to the petition explaining that “the basis of
14
[Bowell’s] claim is conspiracy on the part of the prison to deny his constitutional rights, harm
15
him, and theft of his mail,” and finding that Bowell was “attempting to relitigate matters
16
addressed” by the court in its June 2016 ruling, (RJN Ex. 5 at RJN087), thus finding that
17
Plaintiff’s petition remained denied with prejudice, (Id. at RJN086-087).
18
The superior court adequately described and analyzed Plaintiff’s claims – “conspiracy on
19
the part of prison officials with inmates to murder him; daily threats of harm by correctional
20
officers; [and] fraudulent paper work contributing to an ‘R’ Suffix which keeps him in danger of
21
being assaulted” (RJN at 55, RJN048), and a “conspiracy on the part of the prison to deny his
22
constitutional rights [and] harm him” (RJN at 97, RJN087). Plaintiff did not appeal the decision.
23
(RJN at 99-103, Exh. 6.)
24
(3)
The Parties or Their Privities are the Same
25
Defendants argue that the identity-of-parties element is satisfied in this case, because
26
Plaintiff was privy to the state action as the petitioner, and Defendants, although not named as
27
respondents in the habeas action, were in privity with the named respondent – the CCI Warden
28
– because they were all prison officials at CCI. Also argued is that the privity connection is
18
1
strengthened, given that each Defendant was specifically referred to in Plaintiff’s petition. (See
2
RJN at 6-8, RJN002-RJN004; RJN at 19, RJN014; RJN at 24-26, RJN019-021.
3
VII.
DEFENDANTS’ BURDEN
4
Based on Defendants’ arguments and evidence in support of their motion for summary
5
judgment based on claim preclusion, the court finds that Defendants have met their burden of
6
demonstrating that Plaintiff’s claims are barred by California’s claim preclusion doctrine.
7
Therefore, the burden now shifts to Plaintiff to produce evidence of a genuine material fact in
8
dispute that would affect the final determination in this case.
9
VIII. PLAINTIFF’S OPPOSITION
10
In his opposition, Plaintiff first states that he is unable to properly litigate this case as a
11
prisoner because the law library is closed and he requests a 90-day stay to allow further discovery
12
after his release from custody, at which time he intends to seek private counsel. Plaintiff also
13
requests court-appointed counsel.
14
Plaintiff’s requests for stay, for further discovery, and for court-appointed counsel were
15
denied by the court on January 19, 2021 (ECF No. 89), and Plaintiff’s motion for reconsideration
16
of those decisions were denied on April 30, 2021 (ECF No. 99). The only motion now pending
17
in this case is the Defendants’ motion for summary judgment. (ECF No. 90.)
18
Next, Plaintiff states that direct testimony of his witnesses will reveal fraud by defense
19
counsel, Deputy Attorney General Miller, in failing to disclose information to the court. Plaintiff
20
submitted two inmate witness declarations with his First Amended Complaint, signed under
21
penalty of perjury. (ECF No. 16 at 18, 19.) In the first one, inmate John Hoefling declares that
22
C/O S. Lopez gave inmate Sean Shupp Plaintiff’s chrono revealing Plaintiff’s conviction for
23
willful child cruelty. (ECF No. 16 at 18.) Inmate Hoefling also declares that C/O R. Killmer
24
told inmates that Plaintiff was in prison for rape, and inmate Shupp told a group of inmates that
25
Plaintiff is a child molester. (Id.) In the second declaration, inmate Brian Jennings declares that
26
he overheard a Mexican gang talking to other prisoners about Plaintiff, calling Plaintiff a
27
“chomo,” which is prison slang for a child molester. (ECF No. 16 at 19.) One of the gang
28
members said that C/O Lopez gave inmate Shupp Plaintiff’s chrono revealing case factors: sex
19
1
offense registrant, 25 years to life, ineligible for contact visits with minors, “R” suffix
2
classification for sex offender. (Id.)
3
Plaintiff has submitted a Statement of Disputed Facts. The Statement of Disputed Facts
4
fails to properly address Defendants’ Statement of Undisputed Facts as required by Local Rule
5
260(b), which provides, in part, “Any party opposing a motion for summary judgment or
6
summary adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts
7
and admit those facts that are undisputed and deny those that are disputed, including with each
8
denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory
9
answer, admission, or other document relied upon in support of that denial.” Local Rule 260(b).
10
Plaintiff has not done so. Accordingly, the court may consider Defendants’ assertions of fact as
11
undisputed for purposes of this motion. Id; Fed. R. Civ. P. 56(e)(2). In light of the Ninth Circuit’s
12
directive that a document filed pro se is “to be liberally construed,” Estelle v. Gamble, 429 U.S.
13
97, 106, 97 S.Ct. 285, 292, and Rule 8(e) of the Federal Rules of Civil Procedure that “[p]leadings
14
shall be construed so as to do justice,” see Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197,
15
2200, 167 L. Ed. 2d 1081 (2007), the court shall strive to resolve this motion for summary
16
judgment on the merits.
17
Plaintiff’s Statement of Disputed Facts (ECF No. 92 at 3-4) follows:
PLAINTIFF’S STATEMENT OF DISPUTED FACTS
18
19
1.
Indeed defendants D. Carter and F. Montoya conspired to fraudulently place a
misdemeanor plea agreement time served PC 273A(1) Willful Cruelty Child W/
Possible Death onto a CDCR-SOMS Chrono having nothing to do with my
primary offense. Their motive and intent was to have me murdered is my firm
belief. Unlawfully placing misdemeanor charge plea bargain arrest date 4/4/87
unquestionably not on any prison commitment Abstract of Judgment warranting
further discovery of defendants and Polygraph Test with the FBI examiner, i.e.
outright lies which jurist can debate why after conviction in 1991 PA003248 24
years later?
2.
Concise and to the point S. Shupp will testify at trial that Correctional Officer S.
Lopez handed to him personally my CDCR-SOMS’s Classification Chrono dated
11/19/15 making it appear as if I am a rapist child molester ineligible for contact
visits with minors? Thereafter I was attacked 12/14/15.
3.
Being in the loop of prison inmates Jon Hoefling will testify that Correctional
Officer R. Killmer did indeed show inmates the computer screen of certain
inmates crime of conviction. Motive and intent to be attacked or murdered!
20
21
22
23
24
25
26
27
28
20
4.
In the separate statement by Byron M. Miller, DAG, quote: 49. Bowell had talked
with other inmates about his rape conviction, i.e., that is a falsehood. I have never
been convicted of rape!
5.
7
In the defendants’ notice and motion for summary judgment 1/25/21 argument on
page 7 fraudulently stating: Bowell is barred under California’s claim preclusion
doctrine because the present cause of action is the same as in the prior proceeding.
That is not the case at all, the Kern County Superior Court was only to force CCI
to process my CDCR-602 Second Level Appeal Grievance in order to exhaust
third level in Sacramento to file § 1983 fully exhausted administrative remedies.
In fact, I did have to file a petition in the Fresno 5th Appellate District Court of
Appeal 2424 Ventura St. 93721 in order to get Third Level to state CDCR Appeal
has been exhausted? Theft via CCI employees to sabotage my due process rights
under the U.S. Constitution’s 14th Amendment.
8
Plaintiff has also submitted a Statement of Undisputed Facts (ECF No. 92 at 4), as
1
2
3
4
5
6
9
follows:
PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS
10
I am being deprived of proper discovery as an incarcerated prisoner Pro
Se entitled to the same tools material evidence as any state bar member!
11
12
Specification of the particular facts, why did CCI Appeals Coordinators
refuse to provide to me a copy of the stolen grievance appeal and process at the
second level knowing their intent was to deprive me of administrative exhaustion
in order to file this Federal Lawsuit. It is necessary to uncover all the various
appeals that have been stolen via defendants at CCI over the years that I was
incarcerated there, in fact, officers stole my Court of Appeal Financial Ability to
Pay Forms being mailed back to the court in 1992 and my first appeal as of right
was dismissed warranting further investigation into defendants motive and intent?
13
14
15
16
Stipulated facts, I need a Law Firm Team of Lawyers working in my
behalf to conduct investigations, prepare for a civil jury trial with law degrees
capable experienced to resolve this controversy dispute with evidentiary
documents. Miller v. French, (2000) 120 S. Ct. 2246, establishing prerequisites
for a stay.
17
18
19
EXPERT WITNESSES
20
Further discovery motions, points of law, disclosures personal injuries
involving wrongdoing of the department of justice personnel counsel for the
defendants taking advantage of an old man wrongfully incarcerated for over 30
years being held hostage unconstitutionally, unlawfully, via CDCR defendants in
Case 2:18-cv-02726-MCE-DMC U.S. District Court in Sacramento pending
motion to reopen dated 1/13/21.
21
22
23
24
Highly suspicious activity attempted murder of plaintiff in the instant case
warranting the appointment of counsel in the interest of justice to defend the U.S.
Constitutional rights as a citizen falsely imprisoned for many years!
25
26
IX.
CLAIM PRECLUSION -- ANALYSIS
27
Defendants have presented evidence that Plaintiff’s prior state habeas action case number
28
HC015027A, filed on February 17, 2016, in the Kern County Superior Court both involves the
21
1
same harm and wrong by Defendants, (RJN, ECF No. 90-11 at 6-12, RJN002-RJN008), that
2
Plaintiff was assaulted and injured by two inmates on December 14, 2015, (RJN, ECF No. 90-
3
11 at 6-7, RJN 0002-003, 55, RJN048), which is the same harm at issue in this § 1983 lawsuit,
4
(See Amend. Cmp., ECF No. 16 at 4 (“On 12/14/15 I was . . . battered by inmates Solman
5
#F38684 and Barger #F46561 on the CCI Facility A Yard.”)
6
In opposition, Plaintiff argues that claim preclusion does not apply because the Kern
7
County Superior Court case was only to force CCI to process his CDCR-602 Second Level
8
Appeal Grievance in order to exhaust the third level in Sacramento so he could file a § 1983 case
9
after fully exhausting administrative remedies. (ECF No. 92 at 4 ¶ 5.)
10
The record shows that Plaintiff did request a response to his grievance in his habeas case
11
HC015027A. Plaintiff alleged in the habeas case, “I am a victim in fear of my life and safety at
12
California Correctional Institution, Warden Kim Holland is obstructing due process of my CDC-
13
602 grievance forms, stolen by prison administration employees implicated with attempted
14
murder of me on 12-14-15 (RJN, ECF No. 90-11 at 7, RJN003) and he requests the court to
15
“[e]nforce this court’s jurisdiction power ordering Kim Holland, Warden, to respond to this
16
grievance complaint forthwith,” (RJN, ECF No. 90-11 at 8, RJN004). However, as Defendants
17
argue,
18
“[T]he record reveals that, in addition to seeking to have his administrative
19
appeal processed, Bowell’s habeas petition levied substantive claims against
20
Defendants based on the same conduct at issue here. In particular, Bowell’s
21
petition described the same alleged conduct of Defendants at issue here, and he
22
specifically claimed “due process” and “cruel and unusual punishment” violations
23
under the state constitution. (See RJN, ECF No. 90-11 at 6-7.) And Bowell alleged
24
that he had “no other alternative but to lodge in this court’s jurisdiction my formal
25
complaint pursuing safety.” (See RJN, ECF No. 90-11 at 7.) Thus, in addition to
26
seeking to have his administrative grievance processed, Bowell’s petition
27
indicated that he was substantively challenging Defendants’ alleged conduct.
28
(ECF No. 93 at 5:4-13.)
22
1
The Court finds that the three requirements for claim preclusion are satisfied in this case.
2
First, this § 1983 case and Plaintiff’s prior habeas corpus case number HC015027A, filed on
3
February 17, 2016, in the Kern County Superior Court involve the same harm and wrong by
4
Defendants, the assault and injury of Plaintiff at CCI on December 14, 2015, by two inmates,
5
(RJN, ECF No. 90-11 at 55, RJN048), which is the same harm at issue in this § 1983 lawsuit,
6
(See Amend. Cmp., ECF No. 16 at 4 (“On 12/14/15 I was . . . battered by inmates Solman
7
#F38684 and Barger #F46561 on the CCI Facility A Yard.”)
8
Both actions also involve the same wrongful conduct. In both the habeas petition and
9
this lawsuit, Plaintiff blamed Counselors Montoya and Carter for the “‘R’ suffix fraudulent
10
paperwork” and “improper practices” with respect to his November 18 (19), 2015 chrono (RJN,
11
ECF No. 90-11 at 8, RJN004; RJN at 19, RJN014; RJN at 24-26, RJN019-021; Amend. Cmp.,
12
ECF No 16 at 3); alleged that Officer Killmer had him attacked on 12-14-15 by two prisoners
13
because of his “R” suffix alleged sex offender rape offense, (RJN, ECF No. 90-11 at 6-7,
14
RJN002-003; Amend. Cmp., ECF No. 16 at 4); and alleged that Officer Lopez intentionally gave
15
“computer generated paperwork” to another inmate in order to have Plaintiff murdered, (RJN,
16
ECF No. 90-11 at 6-7, RJN002-003). Even if the legal theories presented and remedies sought
17
in the state court proceedings may differ from those presented in this action, the fact remains that
18
his present and prior proceedings arise from the same conduct and involve the same injury to
19
Plaintiff and the same wrong by Defendants. See Eichman v. Fotomat Corp., 147 Cal. App. 3d
20
1170, 1174 (1983) (“[I]f two actions involve the same injury to the plaintiff and the same wrong
21
by the defendant then the same primary right is at stake even if in the second suit the plaintiff
22
pleads different theories of recovery, seeks different forms of relief and/or adds new facts
23
supporting recovery.”); see also San Diego Police Officer’s Ass’n, 568 F.3d at 734 (“What is
24
critical to the analysis ‘is the harm suffered ...’ ”).
25
Therefore, the court finds that the instant § 1983 case involves the same cause of action
26
as Plaintiff’s prior habeas corpus case HC015027. This satisfies the first requirement for claim
27
preclusion.
28
///
23
1
The remaining requirements for claim preclusion are also satisfied. Plaintiff’s prior
2
habeas action resulted in a final judgment on the merits, as his petition was denied. (RJN, ECF
3
No. 90-11 at 53, 56, RJN047, 049; RJN at 95, 97, RJN086-087), and he did not appeal the
4
decision, (RJN at 99-103, Exh. 6). Plaintiff does not dispute that there was a final judgment on
5
the merits rendered in the prior state habeas proceedings. This satisfies the second requirement
6
for claim preclusion.
7
Finally, the privity requirement is satisfied as Plaintiff brought the prior state habeas
8
action. Plaintiff was the same party in the state habeas action, and Defendants, although not
9
named as respondents in the habeas action, were in privity with the named respondent – the CCI
10
Warden – because they were all prison officials at CCI. Plaintiff was the same party in the state
11
habeas actions, and Defendants were in privity with the Respondent (Warden} in the State habeas
12
actions. Privity exists when a person is so identified in interest with another that he represents
13
the same legal right. See Trujillo v. Santa Clara County, 775 F.2d 1359, 1367 (9th Cir. 1985).
14
For example, privity exists “between officers of the same government so that a judgment in a suit
15
between a party and a representative of the [government] is res judicata in relitigation of the
16
same issue between that party and another officer of the government.” See Church of New Song
17
v. Establishment of Religion on Taxpayers’ Money, 620 F.2d 648, 654 (7th Cir. 1980), cert.
18
denied, 450 U.S. 929 (1981) (citation omitted) (prison employees at federal prison in Texas in
19
privity with prison employees at federal prison in Illinois as both suits against employees of
20
Federal Bureau of Prisons) (quoting Sunshine Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940)).
21
Such is the case here, where Defendants in the instant action were in privity with Respondent in
22
Plaintiff’s state habeas actions as all are against CDCR employees.
23
requirements for claim preclusion based on Plaintiff’s prior state habeas proceedings are satisfied
24
in this action.
Therefore, the three
25
Plaintiff fails to make arguments or present evidence in opposition to the above elements
26
of claim preclusion. The court finds that Plaintiff has failed to demonstrate that his present case
27
is not barred by the State’s claims preclusion doctrine. Thus, upon consideration of Plaintiff’s
28
24
1
prior
2
to summary judgment in this action on the basis of claim preclusion.
3
X.
state
habeas
proceedings,
the
Court
finds
that
Defendants
are
entitled
CONCLUSION AND RECOMMENDATIONS
4
The Court has found that Plaintiff’s prior habeas corpus action contains the same cause
5
of action between parties in privity as this § 1983 case, and the habeas action resulted in a final
6
judgment on the merits. Therefore, California’s claim preclusion doctrine bars Plaintiff’s § 1983
7
case and Defendants are entitled to summary judgment. Based on this finding, the Court need
8
not go further in its analysis of Defendants’ motion for summary judgment.
9
10
Accordingly, based on the foregoing, THE COURT HEREBY RECOMMENDS that:
1.
11
12
Defendants’ motion for summary judgment, filed on January 25, 2021, be
GRANTED; and
2.
13
The Clerk of Court be directed to enter judgment in favor of Defendants and close
this case.
14
These findings and recommendations are submitted to the United States District Judge
15
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
16
(14) days from the date of service of these findings and recommendations, any party may file
17
written objections with the court.
18
Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served
19
and filed within ten (10) days of the date the objections are filed. The parties are advised that
20
failure to file objections within the specified time may waive the right to appeal the order of the
21
District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Such a document should be captioned “Objections to
22
23
24
25
IT IS SO ORDERED.
Dated:
May 10, 2021
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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25
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