McDonald v. Campbell, et al

Filing 125

ORDER signed by Senior Judge Robert J. Timlin on 4/2/2010 ORDERING that the 75 summary judgment motion of defendants C. Gibson and Roseanne Campbell, in her official capacity as warden of MCSP, be granted as to plaintiff Jeffrey D. McDonald's amended complaint and each and every claim therein. (Duong, D)

1 2 3 4 5 6 7 8 9 10 11 Case No. 2:06-CV-2404 RJT 12 13 14 15 16 17 18 The court, Judge Robert J. Timlin, has read and considered defendant Roseanne v. ROSEANNE CAMPBELL, et al., Defendants. JEFFREY D. McDONALD, Plaintiff, ORDER GRANTING DEFENDANTS CAMPBELL AND GIBSON'S MOTION FOR SUMMARY JUDGMENT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

19 Campbell ("Campbell") and C. Gibson ("Gibson," collectively "defendants")'s Motion for 20 Summary Judgment ("MSJ") and supporting documentation. The court has further read and 21 considered plaintiff Jeffrey D. McDonald ("McDonald" or "plaintiff")'s opposition to the MSJ 22 and the documents attached to his opposition, defendants' reply submitted in response to 23 plaintiff's opposition, and plaintiff's supplemental "reply" in opposition to defendant Campbell 24 and Gibson's MSJ.1/ Upon such consideration, the court rules as follows: 25 I. 26 27 1. Defendants Campbell and Gibson refer to plaintiff's supplemental "reply" as a "surreply." 28 In the instant order, the court uses plaintiff's terminology and refers to the document as a supplemental reply. However, both terms refer to the same document. 1

Background

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Pursuant to 28 U.S.C. § 1983 ("Section 1983"), plaintiff filed his original complaint in this

2 matter on October 31, 2006, alleging First and Eighth Amendment deprivations by defendants 3 California correctional officers C. Lewis ("Lewis") and Jeffrey L. Baker ("Baker") as well as the 4 instant moving defendants. At that time, plaintiff was incarcerated at Mule Creek State Prison 5 ("MCSP") located in Ione, California. As the primary factual basis for plaintiff's complaint, he 6 asserted, inter alia, that while housed at MCSP from mid-June 2005 through the end of 2005, 7 correctional officers Lewis and Baker subjected plaintiff to a series of sexually lewd and abusive 8 verbal threats, that defendant Baker physically assaulted plaintiff on at least two occasions, and 9 that defendant Gibson retaliated against plaintiff for making accusatory statements regarding 10 Lewis by placing plaintiff in administrative segregation and refusing to transfer plaintiff to 11 another building within MCSP. 12 Pursuant to the screening requirements set forth in 28 U.S.C. § 1915A(a) with respect to

13 prisoner civil rights complaints, on April 12, 2007, the assigned magistrate judge concluded that 14 plaintiff's complaint stated colorable claims against Baker and Gibson but dismissed plaintiff's 15 claims as alleged against Lewis and Campbell. Plaintiff was provided with an opportunity to 16 amend his complaint and did so by filing an amended complaint on May 30, 2007. In screening 17 the amended complaint, the magistrate judge recommended that Lewis be dismissed from the 18 action and that the suit proceed against defendant Campbell only in her official capacity. The 19 findings and recommendations of the magistrate judge were approved and adopted by the district 20 court, the Honorable Morrison C. England, on May 28, 2008. 21 Plaintiff's amended complaint sets forth three claims entitled as follows: (1) "Violation of

22 Prisoners [sic] First and Eighth Amendment Right to be Free From Verbal Sexual Abuse, Verbal 23 Abuse; and Retiliation [sic] to Silence Victom [sic]; (2) "Violation of Prisoners [sic] Eight [sic] 24 Amendment Right [sic] to be Free From the Physical Insinuation of Sexual-Abuse; and (3) 25 Violation of Prisoners [sic] Eighth Amendment Right to Have Personal Safty [sic]." While 26 plaintiff divides his amended complaint into three discrete claims, the alleged facts with respect 27 to each claim heavily overlap, and as articulated above, each claim rests on the asserted 28 deprivation of plaintiff's Eighth Amendment right.

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As to the first claim, plaintiff asserts such claim against all three remaining defendants

2 Campbell, in her official capacity as warden of MCSP ("Warden Campbell"), Gibson, and Baker. 3 As in the original complaint, claim one addresses sexually-charged insults allegedly directed at 4 plaintiff by correctional officer Lewis. The injury alleged primarily constitutes emotional and 5 mental distress. McDonald avers that Warden Campbell is liable for the alleged verbal abuse 6 because, as the acting warden of MCSP, she knew that Lewis would engage in such abusive 7 conduct. Furthermore, plaintiff contends that defendant Gibson is liable with respect to claim 8 one because Gibson could have had plaintiff transferred to another building within MCSP away 9 from Lewis, but instead, Gibson refused the transfer and also verbally threatened plaintiff with 10 placement in administrative segregation as retaliation because plaintiff stated he was going to 11 report Lewis's conduct to the Inspector General of the California Department of Corrections and 12 Rehabilitation ("CDCR"). Claim one further includes allegations of verbal abuse perpetrated by 13 correctional officer Baker against plaintiff. Plaintiff does not expressly reallege within this claim 14 the phsyical abuse perpetrated by Baker. 15 The second claim centers on the alleged physical abuse imposed on plaintiff by Baker.

16 Specifically, plaintiff avers that while he was bending over to pick up a dustpan, Baker forcefully 17 poked plaintiff in the buttocks with Baker's nightstick, which caused plaintiff to fall forward and 18 hit his head against a locker resulting in neck, head, and upper-back injuries. In addition, 19 McDonald alleges that Baker taunted McDonald with sexual insults and slapped McDonald's 20 buttocks. Moreover, plaintiff alleges that as the acting warden of MCSP, defendant Campbell 21 was aware of Baker's propensity to commit such lewd and physically injurious conduct but 22 nonetheless allowed Baker to maintain his assigned position as a correctional officers whose 23 duties involved personal interaction with inmates. Claim two makes no mention of defendant 24 Gibson. 25 With respect to claim three, plaintiff alleges that he was deprived of his Eighth

26 Amendment right to personal safety as an inmate when Warden Campbell and other unknown 27 individuals "applied an institutional policy of transferring an inmate who has problems with staff 28 to a different prison without any consideration for the safety of the inmate." Am. Compl, ¶ 56.

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1 Specifically, plaintiff alleges that he was transferred to "New Folsom" (presumably, Folsom 2 State Prison ["FSP"]), and as a result, was subject to threats and physical attack by inmates at 3 FSP. As with claims one and two, plaintiff repeats his allegation that defendant Campbell, as the 4 acting warden at MCSP, is liable for his injuries pursuant to supervisorial liability. In addition, 5 plaintiff repeats his allegations that defendants Baker and Lewis directed verbal, sexually-based 6 insults at plaintiff and also physically injured him (a reference, this court assumes, to defendant 7 Baker's alleged conduct). Plaintiff makes no express factual or legal allegations against 8 defendant Gibson by this claim. 9 As to all three claims, plaintiff seeks injunctive relief "including but not limited to, an order

10 halting any adverse transfer away from M.C.S.P. that could be considered retaliation, or any 11 other retaliation instigated and/or ratified by any of the defendants." See, e.g., Am. Compl. ¶ 62. 12 In addition, he seeks compensatory damages, punitive damages, attorneys' fees, and costs of suit. 13 On December 11, 2008, this action was reassigned to the undersigned judge for all further 14 proceedings. 15 On June 26, 2009, defendants Campbell and Gibson filed the instant MSJ. Defendants

16 submitted the following documents in conjunction with their MSJ: (1) their statement of 17 undisputed facts; (2) the declaration of defendants' counsel, addressing plaintiff's various 18 transfers regarding his locations of incarceration; (3) the declaration of defendant Gibson, 19 including the Administrative Segregation Unit Placement Notice Gibson filled out when he 20 placed plaintiff in administrative segregation after one of plaintiff's confrontations with Lewis; 21 and (4) defendant Campbell's declaration, which also includes various attached, internal MCSP's 22 documents addressing plaintiff's allegations of abuse by Lewis and Baker and investigations 23 conducted into those allegations (documents most of which are also attached to plaintiff's 24 amended complaint). 25 The court received plaintiff's opposition on January 7, 2010. While plaintiff includes a

26 separate declaration, he also treats his memorandum of points and authorities in opposition to 27 defendants' MSJ as a declaration by swearing under penalty of perjury that the facts contained 28 within the memorandum are true and by signing the memorandum. Plaintiff does not include a

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1 statement of undisputed facts or a statement of disputed facts. He does include over forty pages 2 of exhibits, including but not limited to his own declaration, his opposition to a separate 3 discovery motion currently pending before the court, many of the same internal MCSP 4 documents and reports submitted by defendants, declarations of various inmates incarcerated at 5 MCSP during the same time period as plaintiff, responses to interrogatories allegedly completed 6 by defendants, various other discovery requests and supplemental and further responses by 7 defendants, as well as a habeas corpus petition filed in state court and purported copies of 8 photographs of his MCSP cell. 9 Defendants filed their reply on February 2, 2010. Defendants do not include further

10 documentary evidence with their reply. However, defendants submit evidentiary objections to 11 plaintiff's exhibits A through H attached to his opposition, recognizing that there are no exhibits 12 labeled "E" or "G." Plaintiff then submitted to the court a supplemental "reply" in opposition to 13 defendants' MSJ dated February 28, 2010. Defendants moved to strike the supplemental reply 14 on March 24, 2010. On that same date, defendants also filed with the court a stipulation between 15 themselves and plaintiff regarding defendant Campbell's previous suspensions of defendant 16 Baker. 17 II. 18

Legal Standard
Summary judgment is appropriate when "the pleadings, depositions, answers to

19 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 20 genuine issue as to any material fact and that the moving party is entitled to judgment as a matter 21 of law. FED. R. CIV. P. 56(c). 22 When ruling on a motion for summary judgment, the court must view the facts and draw

23 any reasonable inferences in the light most favorable to the non-moving party. T.W. Elec. Serv., 24 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987) (citing Matsushita 25 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986)); Chevron 26 Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). Thus, the court cannot make 27 credibility determinations or weigh conflicting evidence at this stage. T.W. Elec. Serv., 809 F.2d 28 at 630-31. While the moving party bears the initial burden of demonstrating an absence of a

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1 genuine issue for trial, it need not fully disprove the other party's case. Anderson v. Liberty 2 Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 3 323-25, 106 S. Ct. 2548 (1986). For example, when the non-moving party bears the burden of 4 proof on a particular claim or defense, the moving party can meet its burden by demonstrating 5 that the non-moving party has failed to present any genuine issue of material fact. Musick v. 6 Burke, 913 F.2d 1390, 1394 (9th Cir. 1990). In addition, the materiality of facts is determined by 7 the parties' pleadings. However, absent prejudice to the opposing party, the court may, in its 8 discretion, consider unpled theories or facts raised by a party's claims or defenses on a summary 9 judgment motion. See, e.g., Ahmad v. Furlong, 435 F.3d 1196, 1201-02 (10th Cir. 2006); 10 Miranda de Villalba v. Coutts & Co. (USA) Intern., 250 F.3d 1351, 1353 (11th Cir. 2001). 11 After the moving party makes the requisite showing, the "opposing party may not rely

12 merely on allegations or denials in its own pleading; rather, its response must - by affidavits or as 13 otherwise provided in [Rule 56] - set out specific facts showing a genuine issue for trial. If the 14 opposing party does not so respond, summary judgment should, if appropriate, be entered against 15 that party." FED. R. CIV. P. 56(e)(2); Anderson, 477 U.S. at 248-49. In addition, a party cannot 16 establish a genuine issue of material fact by merely making assertions in its legal papers. Instead, 17 there must be specific, admissible evidence identifying the basis for the parties' dispute. S.A. 18 Emprese de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th 19 Cir. 1980). That is, the evidence set forth by the non-moving party must be sufficient, taking the 20 record as a whole, to allow a rational jury to find for the non-moving party. Matsushita Elec. 21 Indus., 475 U.S. at 587. As the Supreme Court has stated, "[t]he mere existence of a scintilla of 22 evidence...will be insufficient; there must be evidence on which the jury could reasonably find 23 for [the non-moving party]." Anderson, 477 U.S. at 252. 24 III. 25 26 A.

Discussion
Evidentiary Objections

Defendants object to plaintiff's exhibits A through H, arguing that such documents have not

27 been properly authenticated, lack foundation, contain improper opinion testimony and/or hearsay, 28 are irrelevant, and are otherwise conclusory, citing FED. R. EVID. 401-403, 602, 701, 802, and

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1 901. Defendants properly note "that unauthenticated documents cannot be considered on a 2 motion for summary judgment. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 3 1542, 1550 (9th Cir. 1990) (document may be authenticated by declaration of individual having 4 personal knowledge of matters set forth in document and creation of document); see also, Beyene 5 v. Coleman Sec. Serv., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (quoting U.S. v. Dibble, 429 6 F.2d 598, 602 (9th Cir. 1970) ("A writing is not authenticated simply by attaching it to an 7 affidavit....The foundation is laid for receiving a document in evidence by the testimony of a 8 witness with personal knowledge of the facts who attests to the identity and due execution of the 9 document and, where appropriate, its delivery."). With the above rules and standards in mind, 10 the court hereby rules as follows regarding defendants' evidentiary objections. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Exhibit A, Declaration of Darius Sims - Objection sustained; 2. Exhibit D, portion of CDC 114D (Administrative Segregation Placement Notice Objection overruled; 3. Portion of CDC 115 (Rule Violation Report dated Dec. 12, 2005, Log. No. B12/05-045) - Objection sustained; 4. "Unidentified copies of envelopes and documents" - While the court recognizes that plaintiff includes occasional copies of photographs and/or copies of envelopes, defendants' objections makes it unclear to which "documents" attached to plaintiff's opposition they object, for example, by referring to a page number. While the court will not rely on any inadmissible evidence in ruling on the instant motion (including unauthenticated and irrelevant copies of envelopes, copies of photographs, or other miscellaneous documents), defendants' objections are also rather vague. Therefore, at present, the court cannot properly rule on such objections; 5. One-page excerpt copy of McDonald's Writ of Habeas Corpus Petition, filed in Lassen County on April 23, 2001 - Objection sustained; 6. Exhibit F (miscellaneous letters from McDonald and non-party inmates): McDonald's March 15, 2008 letter and declaration of Floyd Akles - Objections overruled; declarations of Trivon Lockett, Frank Bracamonte, and Sammy Norman - Objections sustained;

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7. CDC 115 (Rules Violation Report, Log. No. B07/05-057) - Objection overruled; 8. Black and white copies of photos that appear to depict inmate cells and property Objection sustained; 9. Exhibit H ("Respondent's Supplemental Return" from McDonald's Writ of Habeas Corpus filed in Lassen County) - Objection sustained. The court informs all parties that it will not consider inadmissible evidence in ruling on the

7 instant motion. However, defendants fail to clearly raise their objections to any documents 8 labeled Exhibits B and C. Therefore, the court refrains from ruling on such objections unless 9 those documents become pivotal to a ruling on the substantive merits of the MSJ. 10 On March 24, 2010, defendants Warden Campbell and Gibson filed a motion to strike

11 plaintiff's supplemental reply ("motion to strike"), reasserting many of the same evidentiary 12 objections made with respect to plaintiff's opposition as to allegations contained in the 13 supplemental reply and asking the court not to consider the supplemental reply when ruling on 14 the instant MSJ. As such, the court addresses the motion to strike here. More specifically, 15 defendants argue that the court should strike plaintiff's supplemental reply because: (1) it does 16 not comply with the local rules of the Eastern District of California; (2) plaintiff has violated the 17 terms of the February 9, 2010 telephonic status conference by filing the supplemental reply; (3) 18 plaintiff has also violated a protective order entered into between plaintiff, the instant moving 19 defendants, and defendant Baker by filing the supplemental reply, see Doc. No. 105; (4) 20 plaintiff's supplemental reply does not comply with a myriad of federal evidentiary and 21 procedural rules; and (5) plaintiff's supplemental reply is otherwise without any substantive 22 merit. 23 The court will deny defendants' motion to strike. As to defendants' first three arguments,

24 those arguments demonstrate that the court may, but is not required, to strike plaintiff's 25 supplemental reply. First, E.D. LOCAL R. 230(l), pertaining to motions in prisoner cases, does 26 not actually speak to the filing of a surreply (defendants' characterization of plaintiff's 27 supplemental reply). Therefore, that local rule does not actually foreclose plaintiff from filing 28 supplemental briefing or otherwise lay out the procedure for filing additional briefing, even

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1 though one might infer that the wisest course would be to seek court approval before filing any 2 additional briefing. Regarding the February 9, 2010 telephonic status conference, defendants 3 correctly note that the court asked plaintiff if he intended to file a supplemental opposition based 4 on recently disclosed documents, and he stated that he did not so intend. However, the court did 5 not inform plaintiff that if he changed his position, he would need to first seek permission from 6 the court to then file a supplemental brief. Again, plaintiff's wisest course of action would have 7 been to seek court permission, but as a pro se litigant, he was not expressly informed that he must 8 seek such court permission. Finally, regarding any violation of the protective order between 9 plaintiff and all remaining defendants, defendant Baker has since moved the court to seal the 10 supplemental reply and that motion has been granted. Thus, any resulting prejudice to defendant 11 Baker or the instant moving defendants due to a violation of the protective order has been greatly 12 minimized. Rather than rely on these three arguments as bases to strike the supplemental reply 13 without considering its contents, the court finds the more judicious course (especially in light of 14 plaintiff's pro se status) to be to consider the supplemental reply in the event that it in fact 15 demonstrates there is a triable issue of material fact regarding plaintiff's claims for relief. 16 Regarding the last two objections, those objections essentially address the merits of

17 plaintiff's supplemental reply. In other words, defendants have not articulated why the court 18 should refrain from addressing the arguments in the supplemental reply by, in the first instance, 19 not considering the supplemental reply. Instead, these arguments demonstrate that even if the 20 court examines plaintiff's arguments as articulated in the supplemental reply, plaintiff still has 21 not presented admissible, probative evidence showing that there is a triable issue of material fact 22 regarding any of his alleged claims for relief. Thus, the court does not construe these latter two 23 objections by defendants as requests for the court to strike the supplemental reply in the first 24 instance. Instead, the court fully addresses the merits of the supplemental reply in Footnote 12, 25 infra. 26 27 B. Undisputed Facts

Defendants submitted a Statement of Undisputed Facts ("SUF") with their moving papers as

28 required by local rules.

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Eastern District Local Rule 260(b) states that "[a]ny party opposing a motion for summary

2 judgment or summary adjudication shall reproduce the itemized facts in the Statement of 3 Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, 4 including with each denial a citation to the particular portions of any pleading, affidavit, 5 deposition, interrogatory answer, admission or other document relied upon in support of that 6 denial." (emphasis added). In addition, "[t]he opposing party may also file a concise `Statement 7 of Disputed Facts,' ["SDF"] and the source thereof in the record, of all additional material facts 8 as to which there is a genuine issue precluding summary judgment or adjudication." Id. 9 Plaintiff failed to file a required SUF or a permissive SDF. As such, defendants argue that

10 this court should grant summary judgment for them because plaintiff has failed properly to 11 contest that the facts they submitted as undisputed are disputed. Further, in conjunction with 12 defendants' assertion that plaintiff only provides inadmissible evidence in support of his 13 opposition, defendants also contend that plaintiff's opposition briefing does not make clear how 14 any of his attached exhibits and their content create a genuine issue of fact as to any of the claims 15 in the amended complaint. 16 The court is mindful that a pro se litigant's pleadings must be liberally construed. Eldridge

17 v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). Furthermore, at the summary judgment stage, the 18 court "treat[s] the opposing party's papers more indulgently than the moving party's papers." 19 Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985). Yet, "[p]ro se litigants must follow the 20 same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 21 1987). While plaintiff's failure to submit a SUF or to otherwise clearly cite to particular parts of 22 his submitted attachments as admissible evidence supporting his opposition counsels in favor of 23 granting defendants' MSJ, the court will not proceed to grant defendants' MSJ without itself 24 wading through plaintiff's submissions and determining if there are indeed triable issues of 25 material fact. As such, the court provides an analysis of what facts are disputed and undisputed. 26 27 The following facts are undisputed material facts supported by admissible evidence: Defendant Warden Campbell worked for the California Department of Corrections and

28 Rehabilitation ("CDCR") from October 15, 1974, until her retirement on December 26, 2007.

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1 She was the acting warden at MCSP from October 2004 through December 2006. She currently 2 provides the CDCR with assistance on certain projects on an as-needed basis but in her limited 3 employment, has no authority to respond to a court-ordered injunction. 4 Plaintiff McDonald submitted a written complaint to defendant Warden Campbell

5 indicating that he had been subjected to verbal abuse by correctional officers Lewis, defendant 6 Baker, and defendant lieutenant Gibson and to physical abuse by Baker. Such abuse, as reported 7 by plaintiff, involved obscene and inappropriate sexual comments and conduct. Plaintiff 8 requested that the misconduct be investigated. On or about November 23, 2005, defendant 9 Campbell, in her position as the acting MCSP warden, ordered MCSP's Investigative Services 10 Unit ("ISU") to complete a fact-finding investigation regarding plaintiff's allegations. While 11 plaintiff clearly contests the ultimate determination by ISU, the Acting Investigative Lieutenant, 12 D. Starnes, found that plaintiff's allegations were not sustained. 13 On February 10, 2006, defendant Warden Campbell completed a Second Level Appeal

14 Response informing plaintiff that upon a second level of review, his allegations against Baker, 15 Lewis, and Gibson were found to be unsubstantiated. On June 5, 2006, the Inmate Appeals 16 Branch issued a Director's Level Appeal Review Decision informing plaintiff that his allegations 17 against the aforementioned individuals had been reviewed and evaluated by administrative staff, 18 that a fact-finding investigation had been completed, and that plaintiff's appeal was denied. 19 Again, although plaintiff disputes the ultimate determination that no abuse took place, plaintiff 20 was provided with such responses by MCSP and CDCR staff. 21 Although not as a result of the allegations against defendant Baker by plaintiff McDonald,

22 defendant Campbell, as the acting warden at MCSP, suspended defendant Baker from September 23 12, 2005 to September 19, 2005 (six days), and from October 3, 2005 to October 10, 2005 (six 24 days)2/ for violations of the California Code of Regulations, Title 15, Sections 3391(a),3/ 3400,4/ 25 26 27 3. 15 Calif. Code of Reg. § 3391(a) states: "Employees shall be alert, courteous, and 28 professional in their dealings with inmates, parolees, fellow employees, visitors and members of the public. Inmates and parolees shall be addressed by their proper names, and never by derogatory or 11 2. As stated supra, the facts relating to defendant Warden Campbell's suspension of defendant Baker were provided to the court through a stipulation of the parties filed March 24, 2010.

5/ 1 and 3413(a)(2). Defendant Baker's suspensions were the result of a settlement stipulation

2 entered into between defendant Baker, his counsel for proceedings before the California State 3 Personnel Board, and staff counsel for the CDCR, before Administrative Law Judge Kimberly 4 M. Pipkin, on January 4, 2006. 5 Defendant Gibson was employed by CDCR as a correctional lieutenant at MCSP from May

6 2005 until he retired from the CDCR in October 2006. As a lieutenant, Gibson's work 7 responsibilities included interviewing inmates suspected of improper or illegal conduct to 8 determine how to handle such situations, including whether to place the inmates in 9 administrative segregation pursuant to Title 15 of the California Code of Regulations. Inmates 10 may be placed in administrative segregation when they threaten the safety of CDCR staff or the 11 security of the institution. When an inmate is placed in administrative segregation, it was 12 defendant Gibson's usual practice to complete a CDC 114-D form (Administrative Segregation 13 Unit Placement Notice) in order to advise the inmate of the reasons for his placement in 14 administrative segregation and to inform the inmate that the Institution Classification Committee 15 will thereafter determine the inmate's appropriate housing and program placements. 16 On July 24, 2005, correctional officer Lewis conducted a search of plaintiff's cell that was

17 initiated while plaintiff was away from his cell. The stated reason for the search was that officer 18 Lewis and another officer suspected that plaintiff had inmate-manufactured alcohol in his 19 20 slang reference. Prison numbers shall be used only with names to summon inmates via public address systems. Employees shall not use indecent, abusive profane, or otherwise improper language 22 while on duty. Irresponsible or unethical conduct or conduct reflecting discredit on themselves or the department, either on or off duty, shall be avoided by all employees." 23 4. 15 Calif. Code of Reg. § 3400 state: "Employees must not engage in undue familiarity 24 with inmates, parolees, or the family and friends of inmates or parolees. Whenever there is a reason for an employee to have personal contact or discussions with an inmate or parolee or the family and 25 friends of inmates and parolees, the employee must maintain a helpful but professional attitude and 26 demeanor. Employees must not discuss their personal affairs with any inmate or parolee." 21 5. 15 Calif. Code of Reg. § 3413(a)(2) states: "Employees of the department shall not engage in any other employment or activity inconsistent or incompatible with employment by the 28 department. Conduct deemed to fall in such categories includes, but is not limited to the following:...Employment or participation in any activity of an illegal nature." 27 12

6/ 1 possession, referred to as "pruno." While Lewis was searching the cell, plaintiff returned to his

2 cell. At that time, plaintiff informed the searching officers that he had a right to stay and witness 3 the search. Officer Lewis told plaintiff to leave the area while Lewis completed the search. 4 Plaintiff refused to completely leave the area but instead sat at a table directly outside the cell. 5 Plaintiff was placed in handcuffs by the searching officers and then escorted to the program 6 office where he was placed in a holding cell pending an interview with defendant Gibson 7 regarding the incident outside his cell. 8 Officer Lewis indicated to defendant Gibson that Lewis thought plaintiff was a threat to his

7/ 9 (Lewis's) safety during the incident because plaintiff would not leave the cell area.

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While at the program office, plaintiff told Gibson that plaintiff would rather go to "the hole"

11 (prison slang for administrative segregation) than return to his cell or building and deal with
8/ 12 officer Lewis.

13 14 15

Defendant Gibson filled out a CDC 114-D form with respect to this incident. The form

6. Plaintiff does not dispute that the officers contended he had pruno. Instead, he disputes that what the officers thought was pruno - i.e., a plastic bag with a fruit product that was wrapped 16 in a blanket - was instead just fruit crisp from the previous night's dinner that plaintiff was planning 17 to give to another inmate. Plaintiff was not formally reprimanded for having pruno based on this incident. 18 7. Plaintiff does dispute the veracity of Lewis's statement. That is, plaintiff avers that Lewis was not being truthful in making assertions that he feared for his safety and contends that officer 20 Lewis could not reasonably have feared for his safety. However, plaintiff does not clearly dispute in his declaration or in any submitted evidence that such statements were made and further does not 21 dispute that defendant Gibson was informed that officer Lewis feared for his safety. 19 22 23 24 25 26 27 28 8. In his opposition and/or his declaration in support of his opposition, plaintiff states as follows: He informed Gibson that officer Lewis had been sexually harassing plaintiff and that plaintiff asked to be transferred to another building. He told Gibson that plaintiff and his family planned on reporting Lewis to the Inspector General. Defendant Gibson told plaintiff to forget about his problems with Lewis. Defendant Gibson also told plaintiff that he either needed to return to his building or that he would be placed in administrative segregation. Defendant Gibson refused to transfer plaintiff to another building and placed plaintiff in administrative segregation. In his opposition papers, plaintiff does not deny that defendant Gibson gave plaintiff the option to return to his building or be placed in administrative segregation, and plaintiff admits that he said he would rather go to administrative segregation than return to his building. Plaintiff, in his declaration, speculates that Gibson placed plaintiff in administrative segregation as retaliation because plaintiff said he was going to report officer Lewis to the Inspector General. 13

1 states the following: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9. Plaintiff does provide evidence that defendant Gibson participated in another RVR 28 charging plaintiff with conspiracy to introduce a controlled substance (methamphetamine) for distribution. However, that incident is wholly unrelated to the allegations in the instant litigation. 14 On Tuesday, July 24, 2005 at approximately 0655 hours, you were found to be in possession of a substance, which was suspected as being inmate manufactured alcohol. Officer Lewis ordered you to leave the area as he was conducting a search and you failed to comply. It was necessary for you to be placed into mechanical restraints, escorted to the program office and placed into a holding cell based on your refusal. You stated `I want to go to the hole rather than go back over there and deal with that officer." Officer Lewis stated that he feels that you are a threat to his personal safety. The suspected substance was not verified as pruno. Due to the aforementioned, you are now deemed a threat to the safety and security of the Institution. You are being placed into Administrative Segregation pending Administrative Review by Institutional Classification Committee for appropriate program and housing needs. You will be seen by the Institutional Classification Committee within 10 days of this order to establish your current and future housing and program needs. Additionally, you will be issued a Rules Violation Report (CDC-115), charging you with the Specific Act: Failure to obey orders. Inmate MCDONALD is a participant in the Mental Health Delivery System at the CCCMS Level of Care. Gibson's stated reasons for placing plaintiff in administrative segregation was pursuant to Section 3335, Title 15 of the California Code of Regulations because Lewis expressed fear for his safety. 15 Calif. Code of Reg. § 3335(a) ("When an inmate's presence in an institution's general inmate population presents an immediate threat to the safety of the inmate or others, endangers institution security or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity, the inmate shall be immediately removed from general population and be placed in administrative segregation."). Plaintiff was kept in administrative segregation for one day. Plaintiff received from defendant Gibson a Rules Violation Report ("RVR") stemming from the incident that charged him with failure to obey orders. Defendant Gibson did not participate in the preparation for or disciplinary hearing regarding the RVR.9/ Defendant Gibson was not a member of the Institutional Classification Committee ("ICC") at MCSP and had no decisionmaking authority regarding plaintiff's retainment in administrative segregation or plaintiff's housing and program placement. Plaintiff currently is incarcerated at California State Prison, Los Angeles County ("CSPLAC") at Lancaster. Prior to his placement at CSP-LAC and during the pendency of this

1 litigation, plaintiff was transferred from MCSP to Salinas Valley State Prison. 2 3 C. Defendant Campbell

In moving for summary judgment as to all claims asserted against defendant Warden

4 Campbell, she contends that: (1) she cannot be held liable under a theory of supervisorial liability 5 for any alleged verbal harassment of plaintiff by correctional officers Lewis and Baker; (2) as to 6 all claims, she cannot be held liable to plaintiff under a theory of respondeat superior liability or 7 supervisorial liability; (3) plaintiff's request for injunctive relief as to her is moot because he is 8 no longer housed at MCSP, and she is no longer the acting warden; (4) defendant Campbell is 9 entitled to Eleventh Amendment immunity; and (5) she is alternatively entitled to qualified 10 immunity. 11 At least one of Warden Campbell's arguments clearly speaks to the fact that she remains in

12 this suit only in her official capacity. However, her decision to include certain additional 13 arguments and the framing of such arguments, in conjunction with plaintiff's opposition, make it 14 clear to the court that plaintiff and Warden Campbell at least partially misunderstand the nature 15 of her continued involvement in this suit. 16 Both the magistrate judge's initial, complete dismissal of plaintiff's claims in his original

17 complaint against defendant Campbell with leave to amend as well as the magistrate judge's later 18 findings with respect to the amended complaint against her and ultimate recommendation that the 19 suit proceed against Campbell only in her official capacity as warden of MCSP, demonstrate that 20 the district court judge found plaintiff's pleadings inadequately alleged personal involvement by 21 Campbell in any deprivation of the constitutional rights of plaintiff. 22 Specifically with respect to the original complaint, the magistrate judge informed plaintiff

23 that Section 1983 "requires that there be an actual connection or link between the actions of the 24 defendants and the deprivation alleged to have been suffered by plaintiff." Hereinafter, first 25 Screening Order; Doc. No. 8, 4:11-12. In addition, the magistrate judge informed plaintiff that to 26 the extent he claimed Campbell's involvement stemmed from her supervisorial position as a 27 warden, plaintiff needed to specifically allege "the causal link between [Campbell] and the 28 claimed constitutional violation...." Id. at 4:20-21. The magistrate judge concluded that

15

1 McDonald, in the original complaint, failed to link Warden Campbell to any acts resulting in his 2 alleged constitutional injuries. 3 However, in screening the original complaint, the magistrate judge informed plaintiff that he

4 need not allege or prove personal involvement by Warden Campbell (either directly or due to her 5 supervisorial role) in the alleged rights deprivations to the extent he sought injunctive relief 6 against her in her official capacity. Id. at 5:4-8. Instead, plaintiff only need name an official who 7 could appropriately respond to a court ordered injunction if one was ultimately ordered by the 8 court as appropriate relief for a constitutional deprivation perpetrated by a different defendant. 9 Furthermore, the magistrate judge made clear that official-capacity suits are merely an alternative 10 way of pleading an action against the entity of which the defendant is an officer. Hafer v. Melo, 11 502 U.S. 21, 25, 112 S. Ct. 358 (1991); Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099 12 (1985). "As such, [official capacity suits are] no different from [suits] against the State itself. 13 Will v. Mich. Dep't of State Police, 491 U.S. 58, 70, 109 S. Ct. 2304 (1989). In addition, the 14 magistrate judge advised plaintiff that because official-capacity suits are essentially claims 15 against the state, the plaintiff must plead and prove that a policy or custom of the state 16 governmental entity of which the official is an agent was the moving force behind the 17 constitutional deprivation. Hafer, 502 U.S. at 25; Graham, 473 U.S. at 166. Because plaintiff 18 had yet to allege a state policy or procedure, the magistrate judge also dismissed any claims in the 19 original complaint against Campbell that could be construed as official-capacity allegations. 20 In issuing later findings and recommendations to the district court with respect to

21 plaintiff's amended complaint (findings which were approved and adopted in full by the district 22 court), the magistrate judge again found that plaintiff failed to sufficiently plead a link between 23 defendant Warden Campbell and any resulting constitutional deprivation suffered by plaintiff. 24 Indeed, the magistrate judge wholly recited that section of his first Screening Order finding that 25 plaintiff failed to demonstrate any causal connection between Warden Campbell and the alleged 26 constitutional rights deprivations, under any theory of liability, supervisorial or otherwise. As 27 such, the magistrate judge recommended that only the official capacity suit for an injunction be 28 allowed to go forward. Essentially, defendant Warden Campbell remained in the instant suit in

16

1 name only upon the district court's approval and adoption of the magistrate judge's finding and 2 recommendations with respect to the amended complaint. 3 Furthermore, because suits against state officials in their official capacity are essentially

4 suits against the state, "when officials sued in this capacity in federal court die or leave office, 5 their successors automatically assume their roles in the litigation." Hafer, 502 U.S. at 25 (citing
10/ 6 FE D . R. CIV. P. 25(d)(1) and FED. R. APP. P. 43(c)(1)). Indeed, FED. R. CIV. P. 25(d) makes

7 clear that "[a]n action does not abate when a public officer who is a party in an official capacity 8 dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's 9 successor is automatically substituted as a party." 10 Thus, Warden Campbell confuses the issue when she argues that an injunction is

11 unavailable because she is no longer the acting warden at MCSP or, for example, when she 12 argues that she is entitled to qualified immunity, an immunity only available when an officer is 13 sued in his or her individual capacity. Furthermore, Warden Campbell's broad assertion of 14 Eleventh Amendment immunity is misplaced as "the Eleventh Amendment does not bar actions 15 against state officers in their official capacities if the plaintiffs seek only a declaratory judgment 16 or [prospective] injunctive relief. Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982). 17 Therefore, to the extent plaintiff can prove, inter alia, that a state policy or procedure led to a 18 deprivation of his constitutional rights, the currently acting warden is the properly named party 19 for purposes of seeking any prospective injunctive relief. 20 Thus, the crux of the issue is whether plaintiff has presented any evidence that a state policy

21 or procedure was the moving force behind the alleged deprivation of his constitutional rights. 22 Warden Campbell contends that plaintiff cannot make such a showing. Indeed, she asserts that 23 he has not even alleged a state policy or procedure. This later assertion is without merit. For 24 example, plaintiff's amended complaint expressly raises a state policy or procedure in claim 25 three. Plaintiff alleges that defendant Warden Campbell "applied an institutional policy of 26 transfering [sic] an inmate who has a problmes [sic] with staff to a different prison without any 27 consideration for the safety of the inmate." Am. Compl., ¶ 56. McDonald refers to his 28 10. Now FED. R. CIV. P. 25(d) and FED. R. APP. P. 43(c)(2). 17

1 temporary transfer to Folsom State Prison ("FSP") in which he avers that he was subject to 2 physical abuse at FSP at the hands of FSP inmates. See also, Facts Section of Am. Compl. ¶ 30 3 ("It is common knowlage [sic] that there is a policy in the C.D.C.R. to transfer an inmate when 4 that inmate has trouble with staff. It is also common knowlage [sic] among the inmates on Ayard 5 New Folsom [i.e. FSP] that the yard was not considered as a sensitive needs yard due to attacks 6 on the SNY inmats [sic], that had happened about one year prior to McDonald's transfer."). 7 Plaintiff contends that he was transferred to FSP in December 2006 and represents that he was 8 ultimately transferred back to MCSP on some later unidentified date. He also claims that in 9 March of 2007, he was beat up by three inmates at FSP who targeted him for being a "sensitive 10 needs" inmate. 11 Plaintiff, however, has failed to present evidence suggesting the existence of a triable issue

12 of material fact as to claim three of the amended complaint against defendant Warden Campbell, 13 and particularly as to a policy or procedure applied by her (or other unidentified MCSP 14 employees) to deprive plaintiff of his Eighth Amendment right. With respect to his own transfer 15 to FSP, plaintiff provides the court with no probative evidence that the transfer was somehow 16 tied to his complaints against MCSP staff and was authorized by defendant Warden Campbell 17 pursuant to an institutional policy or procedure of the CDCR. Plaintiff has failed to produce a 18 scintilla of evidence that there is or was an institutional policy of transferring complaining 19 inmates out of MCSP to FSP. Moreover, he provides the court with no evidence demonstrating 20 retaliatory-motivated transfers by Warden Campbell or other MCSP officials against other MCSP 21 inmates because they exercised their constitutional rights under the First Amendment. Indeed, 22 the only declaration by another prisoner transferred out of MCSP, namely Darius Sims
11/ 23 ("Sims"), does not make clear if Sims contends he was transferred to another prison due to

24 25 11. The court recognizes that it already ruled against the admissibility of the Sims declaration based on defendants' objections. However, by referring to the Sims declaration here, 26 the court merely highlights how plaintiff has failed to raise a triable issue of material fact by relying 27 on inadmissible evidence that, even if the court were to consider, would not change the outcome of his action against defendants Gibson and Warden Campbell. Any reference to other declarations to 28 which the court has already sustained objections are included within the discussion section of this order for the same reasons. 18

1 complaints made by him regarding staff misconduct. Sims may be implying as much, but his 2 single, vague declaration in conjunction with McDonald's conclusory, factually-deficient 3 assertion that such a policy exists, are not sufficient evidence of any institutional policy such as 4 to create a genuine issue of fact. 5 As an alleged related institutional policy, plaintiff avers in his amended complaint that inter-

6 prison transfers are effectuated by MCSP in accordance with an institutional policy or procedure 7 without any consideration for the safety of inmates and that it was common knowledge that FSP 8 was unsafe for prisoners like McDonald. However, these assertions too are not supported by any 9 admissible evidence. McDonald provides no evidence that institutional staff at MCSP failed to 10 consider his safety needs when transferring him to FSP or that staff systemically engages in such 11 lack of safety considerations when transferring other inmates. Furthermore, while McDonald 12 avers in the amended complaint that he was attacked at FSP, he has not submitted any admissible 13 evidence demonstrating that FSP is in fact an extremely violent institution or that "special needs" 14 transferees consistently are attacked at FSP and that such information is readily known to MCSP 15 or more generally, the CDCR. Thus, plaintiff has failed to demonstrate that there is a triable 16 issue of material fact regarding his claim that a state policy was the moving force behind a 17 deprivation of his Eighth Amendment rights (i.e., the state's transfer policies failed to keep 18 McDonald safe from violent FSP inmates) by Warden Campbell. 19 Finally, to the extent plaintiff in claims one and two of the amended complaint contends that

20 in 2005 there was an institutional policy at MCSP of disregarding prisoner complaints against 21 correctional officers and then subjecting such inmates to repeated exposure to known, dangerous 22 correctional officers, such an averment is premised solely on the alleged conduct of defendant 23 Warden Campbell as plaintiff avers, inter alia, that Warden Campbell knew correctional officer 24 Baker had harassed other inmates, including the use of verbal and physical sexual abuse, ignored 25 such problems, and allowed Baker to remain in contact with inmates. However, as stated above, 26 the district court, upon recommendation of the magistrate judge, has already determined that 27 plaintiff failed to sufficiently plead in his amended complaint a causal link between defendant 28 Warden Campbell's alleged conduct and any alleged harm suffered by plaintiff and as a result

19

1 allowed Warden Campbell to remain as a defendant in her official capacity only. As such 2 Campbell's alleged conduct cannot be imputed to the state as evidence of an unconstitutional
12/ 3 state policy or procedure.

4 12. With respect to defendant Campbell specifically, even if the court were to reconsider its 5 decision that plaintiff inadequately plead a connection between defendant Campbell's conduct and Baker's alleged verbal and physical sexual abuse of plaintiff, plaintiff has still failed to present any 6 probative evidence raising a triable issue of material fact regarding Campbell's knowledge of 7 Baker's relevant, past misconduct. For example, during a February 9, 2010 telephone status conference between all parties, the court asked plaintiff if he intended to file a supplemental 8 opposition to the instant MSJ based on recent documents produced to plaintiff by defendant Baker. Plaintiff informed the court that he did not intend to file such a supplemental opposition. However, 9 defendants Campbell, Gibson, and plaintiff informed the court that they would instead provide the 10 court with a stipulation setting forth facts regarding certain suspensions of Baker by Campbell. Plaintiff was ordered to file the stipulation with the court no later than March 2, 2010. See Doc No. 11 110. As of March 2, 2010, the court had not received any stipulation. Instead, without authorization from the court, plaintiff provided the court with a supplemental "reply" in opposition to defendants' 12 MSJ, dated February 28, 2010, and received by the court on March 8, 2010. By that reply, plaintiff 13 again attempts to set forth that Campbell, by reason of her personally suspending Baker, knew of multiple instances in which Baker was reprimanded for improper behavior, including sexual 14 harassment of inmates, prior to Baker's alleged abuse of plaintiff. On March 24, 2010, defendants Warden Campbell and Gibson filed a motion to strike plaintiff's supplemental reply and also filed 15 the stipulation regarding Warden Campbell's suspensions of Baker. Regarding the stipulation, the stipulation alone does not demonstrate that defendant Warden 16 Campbell knew of past relevant misconduct by Baker that should have put her on notice that Baker 17 would likely deprive plaintiff of his Eighth Amendment right to be free from cruel and unusual punishment. The stipulation merely informs the court of the particular code sections that formed the 18 bases for Warden Campbell's past suspensions of Baker. However, the parties do not stipulate to the underlying conduct by Baker resulting in the violations of those code sections. Furthermore, the 19 rather broad language of the code sections, as quoted supra, does not provide the court with a means 20 to determine what kind of inappropriate conduct defendant Baker likely engaged in and of which defendant Warden Campbell was on notice due to her resulting suspensions of Baker. At most, the 21 court might infer that defendant Baker used inappropriate language with other inmates in the past, as two of the cited code sections explicitly address appropriate boundaries regarding verbal 22 communications between correctional officers and inmates. However, none of the code sections 23 expressly addresses physical sexual abuse perpetrated by officers against inmates. Plaintiff has been informed multiple times that lewd, verbal sexually-based comments, while objectionable, do not 24 arise to Eighth Amendment deprivations. Thus, the stipulation does not evidence a causal connection between defendant Warden Campbell's conduct and plaintiff's alleged physical sexual 25 abuse by defendant Baker. With respect to the supplemental reply, as stated supra, the court will deny defendants' 26 motion to strike the supplemental reply and instead proceeds to address the merits of the 27 supplemental reply. However, analyzing the merits of the supplemental reply, plaintiff still does not provide the court with any documentary evidence which he contends supports his assertions that 28 Baker was investigated and reprimanded for misconduct by, inter alia, defendant Campbell that should have put her on notice that defendant Baker would likely deprive plaintiff of his Eighth 20

1

Furthermore, plaintiff provides no other admissible evidence demonstrating that Baker was

2 known by MCSP to be a physical, sexual threat to inmates prior to the subject incident between 3 him and Baker, that other authorities at MCSP systemically failed to respond appropriately to 4 inmate complaints, or that MCSP consistently places inmates under the control of violent 5 correctional officers when it is on notice of the officers' violent proclivities. Indeed, the only 6 additional evidence submitted with respect to correctional officer Baker is the declaration of
13/ 7 Frank Bracamonte. Bracamonte states that while he was an inmate at MCSP between 2002 and

8 2004, he witnessed Baker sexually harass and abuse other inmates. However, the declaration 9 does not speak to any inmate complaints made against Baker or the failure of MCSP to 10 adequately respond to such complaints, if any. As such, plaintiff has failed to raise a triable issue 11 of material fact with respect to any state policy or procedure causing him to be sexually abused 12 by Baker, either verbally or physically. In addition, the declaration of inmate Sims, which 13 contains only general allegations that defendant Warden Campbell ignored inmate complaints 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Amendment right to be free from cruel and unusual punishment. The court is cognizant of the fact that pursuant to its October 27, 2009 discovery order, the court ordered Baker to produce certain documents to plaintiff by only allowing plaintiff to take notes regarding the content of such documents but not allowing plaintiff to obtain actual photocopies of such documents. However, plaintiff does not provide the court with his notes of the content of those documents, and he does not cite to the bates-stamped documents the court ordered defendant Baker to produce to plaintiff, which might provide the court with an explanation of why actual documents were not produced in conjunction with his initial opposition or supplemental reply. Further, plaintiff provides no other admissible evidence in support of his assertions that defendant Warden Campbell allowed Baker to continue to supervise and interact with inmates although she was aware of his personal characteristics rendering him dangerous and abusive to inmates. Plaintiff has signed his supplemental reply under penalty of perjury but nevertheless plaintiff has not made clear that he has any personal knowledge of the events he details in the reply, either because he personally reviewed certain documents or because he obtained such information through deposing the defendants or propounding interrogatories. A party cannot rely only on assertions in his briefing to oppose summary judgment. As stated supra, plaintiff must come forward with the appropriate probative evidence demonstrating that there is a genuine issue of material fact. Finally, plaintiff does not make clear if Baker was ever previously charged by inmates with verbal sexual and/or physical sexual abuse. As plaintiff has already been informed, verbal sexual harassment likely does not constitute an Eighth Amendment deprivation of which Campbell had notice and should have protected plaintiff. Thus, not only has plaintiff proceeded without court permission to file a supplemental reply, but the additional reply nonetheless fails to affect the outcome of the instant MSJ. 13. The court includes reference to the Bracamonte declaration for the same reasons articulated in footnote 11. 21

1 regarding staff misconduct, is far too vague to create a triable issue of material fact. Thus, the 2 court concludes that plaintiff has failed to produce significant probative evidence creating a 3 triable issue of material fact regarding whether a state policy or procedure resulted in a 4 deprivation of plaintiff's constitutional rights under the Eighth Amendment by defendant Warden 5 Campbell. 6 The court, however, notes that it is somewhat unclear if a state policy or procedure must be

7 implicated when the relief sought is prospective injunctive relief against a state official in his or 8 her official capacity. Clearly the requirements of Section 1983 must be met, including the 9 establishment of a constitutional deprivation warranting the sought for injunctive relief. 10 However, both Hafer and Graham dealt with damages suits against state officers and included 11 discussions regarding the distinction between official-capacity and individual-capacity (also 12 referred to as personal-capacity) suits seeking damages relief. In acknowledging that official13 capacity suits require "more" - i.e., proving a state policy or procedure was the moving force 14 behind the deprivation - the Supreme Court relied on the seminal Monell v. Dep't of Social 15 Servs., 436 U.S. 658, 98 S. Ct. 2018 (1978), similarly imposing an "official policy or custom 16 requirement" to the establishment of municipal liability under Section 1983. However, Monell's 17 policy or custom requirement does not apply when Section 1983 plaintiffs only seek prospective 18 declaratory or injunctive relief against a municipality or its officers. Truth v. Kent Sch. Dist., 542 19 F.3d 634, 644 (9th Cir. 2008); Chaloux v. Killeen, 886 F.2d 247, 250-51 (9th Cir. 1989). Thus, 20 though the issue is rather confused, with the Hafer and Graham Court relying heavily on Monell, 21 one might argue that the state policy or procedure requirement also does not apply when a 22 plaintiff sues state officers for only prospective injunctive relief. 23 However, even if plaintiff need not prove a state policy or procedure to obtain prospective

24 injunctive relief against an official sued only in his/her official capacity, he nonetheless has failed 25 to establish that he can obtain the type of injunctive relief set forth in his amended complaint. 26 Again, plaintiff seeks an injunction preventing his transfer out of MCSP "that could be 27 considered retaliation, or any other retaliation instigated and/or ratified by any of the defendants." 28 See, e.g., Am. Compl., ¶ 45:6-7. Defendants argue that plaintiff's request for injunctive relief is

22

14/ 1 moot because he has already been transferred to another custodial institution. See, e.g., Preiser

2 v. Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) 3 (per curiam) (when a prisoner challenges his conditions of confinement and seeks injunctive 4 relief, transfer to another prison typically renders the request for injunctive relief moot unless the 5 prisoner demonstrates that he will likely be transferred back). However, that line of case law is 6 not directly on point, because in those scenarios, the plaintiff obtained the actual relief sought, 7 i.e., a transfer from his current place of incarceration to another institution. Here, plaintiff was 8 trying to avoid transfer and has since been transferred. If the court were to infer that plaintiff still 9 means to pursue an injunctive remedy as requested in his amended complaint, it has to assume 10 that plaintiff now wishes to be transferred back to MCSP, as plaintiff seems to contend that he 11 was indeed transferred from MCSP in retaliation for airing his grievances against correctional 12 officer Lewis, among others. 13 The real deficiency in plaintiff's position is that plaintiff has failed to present any admissible

14 evidence linking his transfer to any alleged retaliatory conduct by defendants Warden Campbell 15 or Gibson, or any other MCSP or CDCR staff. That is, plaintiff has failed to present any 16 evidence suggesting a genuine issue of fact as to whether his transfer from MCSP deprived him 17 of his constitutional rights or that his exercise of his constitutional rights resulted in a retaliatory 18 transfer. Indeed, the facts regarding his ultimate transfer remain shrouded in mystery. In his 19 opposition, plaintiff does not submit any evidence as to when he was ultimately transferred by 20 MCSP, who authorized his transfer, or MCSP's reason for the transfer. Any implied assertion 21 22 23 24 25 26 27 28 14. While none of the parties in their briefing on the instant motion informs the court of exact dates of plaintiff's transfer within the CDCR, the admissible evidence shows that plaintiff was transferred to Salinas Valley State Prison ("SVSP") during the course of the present litigation and now resides at California State Prison, Los Angeles County ("CSP-LAC"). Specifically, plaintiff informed the court on July 3, 2008, that he was transferred to SVSP, slightly under two years from the date of the original complaint. Doc. No. 31. Furthermore, plaintiff notified the court with a document dated August 8, 2009, that he had been transferred from SVSP to CSP-LAC. Doc. No. 85. These dates are far removed from the facts underlying the amended complaint. Further, defendant Warden Campbell stepped down as acting warden in December 2007, and defendant Gibson retired in October 2006. These facts undermine plaintiff's conclusory allegations that any transfer of him from MCSP likely resulted from retaliation by the named defendants Warden Campbell and Gibson. 23

1 that the transfer was retaliatory is wholly conclusory. While the court more fully discusses the 2 requirements of a retaliation claim, infra, with respect to defendant Gibson, plaintiff must prove 3 that he was retaliated against as punishment for the exercise of his constitutional rights and that 4 the retaliatory conduct did not serve any legitimate penological goals. As mentioned, plaintiff 5 has failed to produce any probative evidence pertaining to his ultimate permanent transfer out of 6 MCSP. Consequently, the court concludes that plaintiff has not submitted any evidence creating 7 a genuine issue of fact as to a link between his exercise of his constitutional rights and his
15/ 8 ultimate transfer by Warden Campbell, Gibson, or other officials of CDCR.

9

Based on the foregoing discussion, the court will grant summary judgment for defendant

10 Warden Campbell on plaintiff's official capacity suit against defendant Warden Campbell or the 11 current, successor warden of MCSP for prospective injunctive relief preventing his transfer from 12 MCSP and, implicitly, seeking a transfer back to MCSP based on all claims in the amended 13 complaint against defendant Warden Campbell for deprivation of plaintiff's Eighth Amendment 14 right. 15 16 D. Defendant Gibson

As a preliminary matter, the court notes that plaintiff does not state factual allegations in his

17 amended complaint or submit evidence in conjunction with his opposition to the instant summary 18 judgment motion suggesting that defendant Gibson engaged in the conduct alleged in the second 19 or third claim of the amended complaint. Accordingly, the court will grant defendant Gibson 20 summary judgment as to the second and third claims of the amended complaint. 21 The court now proceeds to address whether defendant Gibson is entitled to summary

22 judgment with respect to any deprivations of plaintiff's constitutional rights alleged in claim one 23 24 25 26 27 28 15. Having failed to present any evidence regarding the circumstances of his transfer from MCSP, the court also notes that "prisoners generally have no constitutionally-protected liberty interest in being held at, or remaining at, a given facility." Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). In other words, the scope of injunctive relief sought by plaintiff far exceeds the constitutional harms alleged. See 18 U.S.C. § 3626(a)(1)(A) ("Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff....The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.") 24

1 of the amended complaint. 2 "[T]he treatment a prisoner receives in prison and the conditions under which he is confined

3 are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31, 4 113 S. Ct. 2475 (1993). The Eighth Amendment prohibits cruel and unusual punishment and 5 "embodies the broad idealistic concepts of dignity, civilized standards, humanity and decency. 6 Estelle v. Gamble, 429 U.S. 97, 102, 97 S.