Richard S. Kindred v. Allenby et al
Filing
95
ORDER ADOPTING 80 Findings and Recommendations; ORDER GRANTING In Part and DENIED In Part 65 Defendants' Motion for Summary Judgment; ORDERED that this action is referred back to the assigned Magistrate Judge for further proceedings, signed by District Judge Dale A. Drozd on 10/26/2021. (Jose Lopez and Brandon Price terminated) (Martin-Gill, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
RICHARD SCOTT KINDRED,
12
13
14
15
No. 1:18-cv-00554-DAD-EPG (PC)
Plaintiff,
v.
BRANDON PRICE, et al.,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFEDANTS’ MOTION FOR SUMMARY
JUDGMENT IN PART
Defendants.
(Doc. Nos. 65, 80)
16
17
18
Plaintiff Richard Scott Kindred is a civil detainee proceeding pro se and in forma pauperis
19
in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States
20
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. This case proceeds
21
22
23
24
25
26
against defendants Brandon Price, J. Corona, Jose Lopez, and
John/Jane Does 1–5 for violation of plaintiff’s Fourth Amendment
right to be free from unreasonable search and seizure; against
defendants J. Corona and Jose Lopez for violation of plaintiff’s
First Amendment right to freely exercise his religion; and against
John/Jane Does 6–10 for violation of plaintiff’s First Amendment
right of access to the courts.
(Doc. No. 23 at 2.)
On June 15, 2021, the assigned magistrate judge issued findings and recommendations
27
recommending that the motion for summary judgment filed on behalf of defendants Price,
28
Corona, and Lopez (Doc. No. 65) be granted in part and denied in part. (Doc. No. 80.) In
1
1
particular, the magistrate judge recommended that summary judgment be granted in favor of
2
defendants as to plaintiff’s Fourth Amendment claims against defendant Price for the January
3
2018 search and in favor of defendants Corona and Lopez as to the June 2018 search and seizure
4
of plaintiff’s ribbon shirt and deer skin trousers. (Id. at 34–35.) The magistrate judge also
5
recommended that summary judgment be granted in favor of defendants as to plaintiff’s First
6
Amendment free exercise claims brought against defendants Corona and Lopez for the alleged
7
seizure of plaintiff’s spiritual blanket and for damages arising from the seizure of the ribbon shirt
8
and deer skin trousers. (Id.) In addition, the magistrate judge recommended that defendants’
9
motion for summary judgment be denied as to: (i) plaintiff’s Fourth Amendment claims against
10
defendants Corona and Lopez for the June 2018 search and seizure of plaintiff’s black duffel bag,
11
khaki duffel bag, spiritual blanket, television, and batteries; (ii) plaintiff’s First Amendment free
12
exercise claim against defendants Corona and Lopez for seizure of the black duffel bag; and (iii)
13
plaintiff’s First Amendment claim for injunctive relief arising out of the seizure of the ribbon shirt
14
and deer skin trousers. (Id. at 35.) The findings and recommendations contained notice that any
15
objections thereto were to be filed within twenty-one (21) days after service. (Id. at 35.) After
16
receiving an extension of time in which to do so, on July 20, 2021, defendants Corona and Lopez
17
(collectively, “defendants”) filed objections to the pending findings and recommendations. (Doc.
18
No. 86.) Defendant Price did not file any objections. Plaintiff also did not file any objections.
19
On August 20, 2021, after receiving an extension of time in which to do so, plaintiff filed a reply
20
to defendants’ objections. (Doc. No. 90.)
21
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a
22
de novo review of this case. Having carefully reviewed the entire file, including defendants’
23
objections and plaintiff’s response, the undersigned adopts the pending findings and
24
recommendations, in part. For the reasons discussed below, the undersigned declines to adopt the
25
recommendation that defendants’ summary judgment be denied as to plaintiff’s Fourth
26
Amendment claim brought against defendant Lopez and will instead grant summary judgment in
27
favor of defendant Lopez as to that claim. In addition, because the undersigned concludes that
28
defendant Lopez cannot be held liable for failure to intercede to stop the search and seizure by
2
1
officers, defendant Lopez is also entitled to summary judgment in his favor as to plaintiff’s First
2
Amendment claim arising out of the June 2018 search and seizure.
As to plaintiff’s other claims, the undersigned concludes that the pending findings and
3
4
recommendations are supported by the record and by proper analysis.
5
DISCUSSION
6
Defendants object to the pending findings and recommendations recommending partial
7
denial of their motion for summary judgment and maintain that summary judgment should be
8
granted in their favor as to plaintiff’s Fourth and First Amendment claims because the June 2018
9
search was proper and resulted in seizure of contraband items, including the black duffel bag
10
which is not a religious item. (Doc. No. 86 at 2–9.) Plaintiff’s reply to defendants’ objections
11
primarily restates the determinations made in the findings and recommendations and asserts that
12
those determinations are correct. (Doc. No. 90.) For the most part, plaintiff does not directly
13
address or respond to defendants’ arguments as set forth in their objections. The undersigned will
14
address each of defendants’ objections in turn.
15
A.
Fourth Amendment Claim Arising from the June 2018 Search and Seizure
16
Plaintiff is a civil detainee at the Department of State Hospitals–Coalinga (“DSH-
17
Coalinga”). (Doc. No. 80 at 2.) Plaintiff’s Fourth Amendment claims against defendants Corona
18
and Lopez arise from a search of his living area at DSH-Coalinga on June 29, 2018 and seizure of
19
various items, including a Samsung television with a thumb drive attached, a khaki duffel bag
20
containing a ribbon shirt and deer skin trousers, and a black duffel bag containing a spiritual
21
blanket and batteries. (Id. at 11–12.)
22
First, as to the search itself, defendants do not object to the magistrate judge’s
23
determination that defendants failed to show as a matter of law that plaintiff did not have a
24
reasonable expectation of privacy in his living area. (Id. at 20.) Rather, defendants object to what
25
they perceive, mistakenly, to be the magistrate judge’s conclusion that the search was, in fact,
26
arbitrary. (Doc. No. 86 at 6–7.) This objection is not well-taken because the magistrate judge
27
found only that “there is a dispute of fact as to whether the June 2018 search was arbitrary,” and
28
this disputed fact—as to whether the search was or was not arbitrary—precluded the granting of
3
1
summary judgment. (Doc. No. 80 at 19, 20) (emphasis added).
Second, defendant Lopez objects to the magistrate judge’s conclusion that because an
2
3
officer has a duty to intercede when a fellow officer is violating plaintiff’s constitutional rights,
4
defendant Lopez could be held liable for watching defendant Corona conduct the search in
5
question and not intervening to stop that search. (Doc. No. 80 at 16–18) (emphasis added).
6
According to defendants, the magistrate judge erred in holding defendant Lopez to the legal
7
standard that applies to police officers in that “[defendant] Lopez was not a police officer,” and
8
“[a]t the time of the search, [he] was a psychiatric technician assistant.” (Doc. No. 86 at 7–8.)
9
The undersigned notes first that the duty to intercede applies to correctional officers as well, not
10
just “police officers.” See Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (“[A] prison
11
official can violate a prisoner’s Eighth Amendment rights by failing to intervene.”); Est. of Silva
12
v. City of San Diego, No. 3:18-cv-2282-L-MSB, 2020 WL 6946011, at *11 (S.D. Cal. Nov. 25,
13
2020) (noting that the duty to intercede applies to correctional officers) (citing Cunningham v.
14
Gates, 229 F.3d 1271, 1289 (9th Cir. 2000) (“[P]olice officers have a duty to intercede when their
15
fellow officers violate the constitutional right of a suspect or other citizen.”)); Hardney v. Diaz,
16
No. 2:20-cv-01587-WBS-DMC, 2021 WL 876991, at *4 (E.D. Cal. Mar. 9, 2021), report and
17
recommendation adopted, 2021 WL 2365061 (E.D. Cal. June 9, 2021) (“Although law
18
enforcement officials, such as police officers and correctional officers, may be held liable
19
for failure to intercede when fellow officers violate the constitutional rights of a citizen or
20
prisoner, liability attaches only if the officer in question had the opportunity to intercede.”).
21
Nevertheless, defendant Lopez’s objection in this regard is ultimately well taken in the
22
undersigned’s view because he is also not a correctional officer. In their motion for summary
23
judgment, defendants represent that defendant Lopez is a psychiatric technician, and in support of
24
that motion, defendant Lopez himself submitted a declaration in which he declared that he is a
25
psychiatric technician employed by Department of State Hospitals and that between March 2,
26
2015 and December 15, 2019, he was a psychiatric technician assistant working at the DSH-
27
Coalinga facility. (Doc. Nos. 65-2 at 9; 65-8 at ¶ 1.)
28
/////
4
1
Because the undisputed evidence on summary judgment establishes that defendant Lopez
2
was a psychiatric technician and not a law enforcement officer of any kind at the time of the
3
incident in question he, as a matter of law, cannot be held liable for failing to intercede to prevent
4
a law enforcement officer from violating plaintiff’s constitutional rights. Accordingly, the court
5
will decline to adopt the findings and recommendations as to plaintiff’s Fourth Amendment claim
6
against defendant Lopez and will instead grant summary judgment in favor of defendant Lopez as
7
to that that claim. In addition, because the undersigned concludes that defendant Lopez cannot be
8
held liable for failure to intercede to stop the search and seizure by officers, defendant Lopez is
9
also entitled to summary judgment in his favor as to plaintiff’s First Amendment claim arising out
10
of the June 2018 search and seizure.
11
Third, defendants object to the magistrate judge’s recommendation that summary
12
judgment be denied as to plaintiff’s Fourth Amendment claim based on the seizure of plaintiff’s
13
black duffel bag, khaki duffel bag, spiritual blanket, television, and batteries. (Doc. No. 86 at 2–
14
5.) Defendants argue that plaintiff was not permitted to possess those items because they were
15
contraband. (Id.) The court will address each item in term.
16
According to defendants, the magistrate judge’s conclusion that there was a disputed fact
17
as to whether the black duffel bag was contraband erroneously relied on the narrow definition of
18
“luggage” as it appears in the 2014 clarification memorandum of the statewide contraband list
19
because that memorandum was superseded by the DSH-Coalinga site-specific contraband list,
20
which defines luggage more broadly as bags larger than 18”x14”x8,” and the parties do not
21
dispute that the black duffel bag exceeded those size dimensions. (Id. at 3.) However, the
22
findings and recommendations considered both the 2014 clarification memorandum and the DSH-
23
Coalinga site-specific list and concluded that viewing the evidence on summary judgment in the
24
light most favorable to plaintiff as it must, the evidence created a dispute of fact as to whether the
25
black duffel bag was contraband. (Doc. No. 80 at 13–14.) As the magistrate judge noted,
26
plaintiff had argued in his opposition to defendant’s motion for summary judgment that the 2014
27
clarification memorandum specifically excluded duffel bags from its definition of “luggage”
28
contraband, and defendants did not respond to that argument in their reply brief. (See id.)
5
1
Moreover, in their objections to the pending findings and recommendations, defendants assert for
2
the first time that the 2014 clarification memorandum was superseded by the DSH-Coalinga site-
3
specific contraband list, but they provide no evidence to support that bare, belated assertion.
4
(Doc. No. 86 at 3.)
5
As for the seizure of the khaki duffel bag of unspecified size, defendants argue that the
6
magistrate judge failed to consider that because plaintiff had used the khaki duffel bag in an
7
improper manner (to conceal a ribbon shirt and deer skin trousers—two items that the magistrate
8
judge found defendant had properly confiscated as contraband), the khaki duffel bag was also
9
properly confiscated as contraband regardless of its size. (Id.) But defendants had not raised this
10
argument regarding plaintiff’s use of the khaki duffel bag in an “improper manner” in their
11
motion for summary judgment or in their reply brief in support of that motion, raising it for the
12
first time in their objections to the pending findings and recommendations. Moreover, this
13
objection by defendants ignores the fact that the magistrate judge had analyzed the parties’
14
arguments regarding what it means to use an item in an “improper manner” with regard to
15
plaintiff’s television and concluded that “the parties have submitted conflicting evidence
16
regarding the meaning of the term ‘used in an improper manner’ for purposes of the Statewide
17
Contraband list.” (Doc. No. 80 at 13.) It follows that a dispute of material fact also exists as to
18
whether plaintiff had used the khaki duffel bag in an “improper manner” such that it constituted
19
contraband that was subject to confiscation.
20
As for seizure of the spiritual blanket, defendants object to what they perceive as an
21
inconsistency in the magistrate judge finding both that: (1) defendants failed to establish that the
22
spiritual blanket was contraband (precluding summary judgment for defendants as to plaintiff’s
23
Fourth Amendment claim), and (2) defendants established “a rational nexus between prohibiting
24
Plaintiff from possessing his spiritual blanket and DSH-Coalinga’s legitimate health concerns”
25
because the spiritual blanket—a 7’x7’ comforter that plaintiff uses for dry sweat ceremonies—is
26
too large to be laundered (supporting summary judgment in favor of defendants as to plaintiff’s
27
First Amendment claim). (Doc. Nos. 80 at 28, 31; 86 at 4.) Defendants argue that the “rational
28
nexus” analysis should have been applied to plaintiff’s Fourth Amendment claim as well,
6
1
resulting in a finding that the spiritual blanket was properly confiscated as contraband. (Doc. No.
2
86 at 4.) Defendants criticize the magistrate judge’s Fourth Amendment analysis as only
3
“focus[ing] on whether the blanket is defined as contraband under Administrative Directive (AD)
4
843 or [is] categorically prohibited,” and ignoring defendant Price’s declaration that DSH-
5
Coalinga prohibits large quilts or comforters because they cannot be properly laundered. (Id.;
6
Doc. No. 65-2 at 29.) Defendants are simply incorrect. Far from ignoring defendant Price’s
7
declaration, the pending findings and recommendations quote it as follows:
8
9
10
11
12
13
14
15
16
Defendants also submit a declaration from Defendant Price stating
that “[l]arge quilts or comforters are not permitted in the living
space as DSH-Coalinga lacks the laundry facilities to clean them
and therefore present a health concern.” (Price Decl.; ECF No. 656 at 3.) Defendant Price refers to AD 843, which governs patient
living areas, in support of his declaration. (Price Decl., Ex. 7; ECF
No. 65-7 at 32-40.) AD 843 states that additional coverings,
including blankets, shall not be attached to the privacy or window
curtains, and further prohibits “[e]xcessive amounts of
items/materials (sheets, blankets, clothing, food, equipment, etc.)”
because they constitute a fire hazard. (ECF No. 65-7 at 37.) AD843 further sets forth a procedure to be followed if a patient’s
property is deemed excessive and needs to be removed. (Id. at 3738.) . . . Defendants have not submitted any evidence that
Plaintiff’s spiritual blanket was “excessive” within the meaning of
AD 843.
17
(Doc. No. 80 at 14.) Defendants’ objection, therefore, does not persuade the undersigned that the
18
magistrate judge erred in concluding that defendants failed to establish that plaintiff’s spiritual
19
blanket was contraband. Moreover, contrary to defendants’ view that this conclusion is
20
inconsistent with the findings and recommendations addressing plaintiff’s First Amendment
21
claims, the magistrate judge did not conclude that the spiritual blanket was indeed contraband in
22
the First Amendment analysis. Rather, in that analysis the magistrate judge evaluated the validity
23
of the regulation articulated in AD 642, which sets forth DSH-Coalinga’s policy for
24
“religious/spiritual items” and provides that “[b]ased on the safety, security needs of the hospital
25
or potential as contraband, the quantity and/or size of these items may be restricted.” (Doc. No.
26
80 at 28) (emphasis added). In applying the relevant four-factor analysis to plaintiff’s First
27
Amendment claims, the magistrate judge properly concluded that the first factor weighed in favor
28
of defendants because “[p]rohibiting Plaintiff from possessing a large blanket that cannot be
7
1
laundered has a logical connection to furthering institutional health concerns.” (Doc. Nos. 65-7 at
2
14; 80 at 27–28.) But the spiritual blanket does not constitute contraband merely because AD 642
3
provides for size restrictions on religious items. Notably, defendants did not invoke AD 642 as
4
the basis for the seizure of plaintiff’s spiritual blanket nor did they raise AD 642 in their argument
5
in support of summary judgment as to plaintiff’s Fourth Amendment claims.
6
As for the seizure of the television, defendants argue that the magistrate judge considered
7
inadmissible evidence in finding that there is a dispute of material fact as to whether the
8
television was used “in an improper manner” such that it constituted contraband properly subject
9
to confiscation. (Doc. No. 86 at 4–5.) Defendants first vaguely object that the 2014 clarification
10
memorandum is not relevant evidence, without stating why or how so. (Id.) Second, defendants
11
merely assert boilerplate objections that plaintiff’s declaration concerning the 2014 clarification
12
memorandum lacks foundation and is improper legal opinion, again without elaborating on the
13
basis for these objections. (Id.) Thus, defendants’ objections with regard to the television are not
14
persuasive.
15
As for the alleged seizure of batteries, defendants object to the findings and
16
recommendations as applying an incorrect standard on summary judgment and improperly
17
placing the burden on defendants to prove that plaintiff’s batteries were not confiscated, when the
18
burden they bear at summary judgment is merely to prove an absence of evidence to support
19
plaintiff’s assertion that his batteries were confiscated. (Id. at 5.) Defendants contend that
20
because they submitted evidence showing that the batteries were not identified on the search
21
report or the confiscation receipts, the burden shifted to plaintiff to offer specific facts about the
22
alleged confiscation of batteries to support his claim, and he failed to do so. (Id.; Doc. No. 80 at
23
12, n. 10.) In particular, defendants argue that the findings and recommendations improperly
24
credited plaintiff’s conclusory and self-serving assertion made in response to their statement of
25
undisputed facts, in which he “asserts that there was no mention of the batteries being confiscated
26
either on the search report or the confiscation receipts because staff failed to write them down.”
27
(Id.; Doc. No. 80 at 12, n. 10.) Defendants argue that because plaintiff’s statement in this regard
28
lacked detailed facts and supporting evidence, “simply stating that the batteries were confiscated
8
1
and were not written down is insufficient to create an issue of material fact.” (Doc. No. 86 at 5.)
2
However, plaintiff also submitted a letter from Disability Rights California dated January 11,
3
2019 responding to plaintiff’s “appeal request dated 11/6/18 of SR# 1120835 regarding personal
4
possessions,” and summarizing the taken items that plaintiff had listed in his written complaint
5
dated July 23, 2018, including “[t]wo 4-packs of AAA batteries and one 4 pack of AA batteries –
6
all rechargeable.” (Doc. No. 75 at 106–107.) This supporting evidence shows that for several
7
years before plaintiff made the supposedly self-serving statement in March 2021, plaintiff has
8
consistently maintained that his batteries were confiscated during the search. Though certainly
9
not overwhelming evidence, at this summary judgment stage, the undersigned agrees with the
10
findings and recommendations that there is conflicting evidence as to the alleged confiscation of
11
plaintiff’s batteries that precludes the granting of summary judgment as to this claim.
12
B.
13
First Amendment Claim Arising from the June 2018 Search and Seizure
Defendants next object that the pending findings and recommendations “make[] no
14
reference to [plaintiff’s] use of the black duffel bag in any religious activities,” and that because
15
plaintiff has not alleged that he requires the black duffel bag for the practice of his religion,
16
defendants did not violate plaintiff’s First Amendment rights by confiscating it. (Doc. No. 86 at
17
8–9.) Contrary to defendants’ objection, the findings and recommendations do refer to plaintiff’s
18
asserted use of the black duffel bag “to transport the spiritual blanket.” (Doc. No. 80 at 27.)
19
Moreover, the findings and recommendations note that plaintiff’s evidence submitted on
20
summary judgment included a copy of “the notice posted on [plaintiff’s] door at the time of the
21
June 2018 search, signed by Plaintiff and the Unit Supervisor, listing the black duffel bag as a
22
spiritual item.” (Doc. No. 80 at 34) (citing Doc. No. 75 at 150–152.)
23
Defendants also object that the magistrate judge ignored the DSH-Coalinga site-specific
24
contraband list, which includes a column detailing the justification for each prohibited item, in
25
finding that defendants “failed to meet their burden of establishing that DSH-Coalinga had a
26
legitimate interest in prohibiting Plaintiff from possessing the . . . black duffel bag.” (Doc. No. 86
27
at 9.) Specifically, in their objections, defendants point to the “increased risk for concealing
28
contraband” as their stated justification for prohibiting bags larger than 18”x14”x8” and contend
9
1
that this evidence shows that “[p]rohibiting a large bag that could conceal contraband including
2
weapons, drugs, or other items that can undermine security and safety is a legitimate interest of
3
DSH-Coalinga.” (Id.) But defendants again did not advance this contention in their motion for
4
summary judgment nor did they refer to this justification when arguing that their restriction on
5
large bags is reasonable because it furthers that “legitimate and neutral” objective. Whether
6
defendants will ultimately prevail on this basis at trial notwithstanding, the magistrate judge was
7
not incorrect in concluding that defendants had failed to meet their burden on summary judgment;
8
it is insufficient for defendants to submit wholesale evidence and then expect the court to locate
9
evidentiary support for their specific arguments raised by them later. “Judges are not like pigs,
10
hunting for truffles” buried in the record. Entm’t Research Grp., Inc. v. Genesis Creative Grp.,
11
Inc., 122 F.3d 1211, 1217 (9th Cir. 1997) (quoting United States v. Dunkel, 927 F.2d 955, 956
12
(7th Cir. 1991)); see also Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (noting that “[i]t is
13
not our task, or that of the district court, to scour the record in search of a genuine issue of triable
14
fact”) (citation omitted).
15
C.
Injunctive Relief on First Amendment Claim Arising from the Seizure of the Ribbon
16
Shirt and Deer Skin Trousers
17
Lastly, defendants object to the magistrate judge’s finding that because plaintiff seeks
18
injunctive relief as to his First Amendment claim arising from the seizure of his ribbon shirt and
19
deer skin trousers, defendants are not entitled to summary judgment on that claim. (Doc. No. 86
20
at 10.) Defendants have misconstrued the findings and recommendations in this regard and omit
21
that the pending recommendation pertained to defendants’ argument that they are entitled to
22
summary judgment on qualified immunity grounds. (Doc. No. 80 at 33.) That is, the magistrate
23
judge found that defendants were entitled to qualified immunity as to plaintiff’s First Amendment
24
claim arising from the seizure of the ribbon shirt and deer skin trousers, but only as to damages.
25
(Id.) To the extent plaintiff seeks injunctive relief as to that claim, the magistrate judge
26
concluded that defendants had not established they were entitled to qualified immunity on
27
summary judgment. (Id. at 24, 33) (noting that “qualified immunity does not bar injunctive
28
relief”) (citing cases). Importantly, the magistrate judge found that defendants did not meet their
10
1
burden of showing that prohibiting non-state issued clothing served legitimate penological
2
interests. (Id. at 28–29, 31.)1 Accordingly, defendants miss the mark with their argument that
3
because “the cause of action for violation of [plaintiff’s] First Amendment [] rights fail as to the
4
ribbon shirt and deer skin trousers, the prayer for injunctive relief must also fail.” (Doc. No. 86 at
5
10.)
6
CONCLUSION
7
Accordingly,
8
1.
9
The findings and recommendations issued on June 15, 2021 (Doc. No. 80) are
adopted, in part;
10
2.
Defendants’ motion for summary judgment (Doc. No. 65) is granted in part and
11
denied in part;
12
a.
Summary judgment is granted in favor of defendant Brandon Price as to
13
plaintiff’s Fourth Amendment unreasonable search claim arising from the
14
January 2018 search;
15
b.
Summary judgment is granted in favor of defendant Jose Lopez as to
16
plaintiff’s Fourth Amendment unreasonable search and seizure claim and
17
as to plaintiff’s First Amendment free exercise claim;
18
c.
Summary judgment is granted in favor of defendants Jose Lopez and J.
19
Corona as to plaintiff’s Fourth Amendment claim arising from the June
20
2018 search and seizure of plaintiff’s ribbon shirt and deer skin trousers;
21
22
23
24
25
26
27
28
Defendants further object that the pending findings and recommendations “incorrectly
conclude[] that Defendants failed to offer any reason why the ribbon shirt and deer skin trousers
posed a risk to DSH-Coalinga,” emphasizing that the findings and recommendations go “against
its own statements” because it “acknowledges the risk of allowing non-state issued clothing at
DSH-Coalinga and notes that non-state issued clothing poses a security risk, including escape.”
(Doc. No. 86 at 10–11.) However, defendants quote from the portion of the findings and
recommendations that summarize defendants’ argument, not their evidence submitted in support
of their motion for summary judgment. (See Doc. No. 80 at 28) (“Defendants Corona and Lopez
argue that non-state issued clothing such as the ribbon shirt and deer skin trousers poses a
security risk, including escape.”) (emphasis added). Defendants simply did not cite to evidence
before the court in support of this argument in their briefs. Thus, the findings and
recommendations were properly based on a lack of evidence submitted by defendants on
summary judgment.
11
1
1
d.
Summary judgment is granted in favor of defendants Jose Lopez and J.
2
Corona as to plaintiff’s First Amendment free exercise claim for damages
3
arising from the June 2018 seizure of plaintiff’s spiritual blanket ribbon
4
shirt and deer skin trousers;
5
e.
Summary judgment is granted in favor of defendants Jose Lopez and J.
6
Corona as to plaintiff’s First Amendment free exercise claim arising from
7
the June 2018 seizure of plaintiff’s spiritual blanket;
8
f.
9
Summary judgment is denied as to plaintiff’s Fourth Amendment claim
brought against defendant J. Corona for the June 2018 search and seizure
10
of plaintiff’s black duffel bag, khaki duffel bag, spiritual blanket,
11
television, and batteries;
12
g.
Summary judgment is denied as to plaintiff’s First Amendment free
13
exercise claim brought against defendant J. Corona for the June 2018
14
seizure of plaintiff’s black duffel bag; and
15
h.
Summary judgment is denied as to plaintiff’s First Amendment free
16
exercise claim brought against defendant J. Corona for injunctive relief
17
arising from the June 2018 seizure of plaintiff’s ribbon shirt and deer skin
18
trousers;
19
3.
The Clerk of the Court is directed to update the docket to reflect that defendants
20
Brandon Price and Jose Lopez have been terminated as defendants in this action;
21
and
22
4.
23
24
25
26
This action is referred back to the assigned magistrate judge for further
proceedings.
IT IS SO ORDERED.
Dated:
October 26, 2021
UNITED STATES DISTRICT JUDGE
27
28
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?