Leyva v. Moreno et al
Filing
69
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/19/11 recommending that defendant's 04/28/11 motion for summary judgment 53 be granted; and plaintiff's 05/11/11 motion for witnesses at trial 55 be denied as moot. Motion for Summary Judgment 53 and MOTION for Witnesses at Trial 55 referred to Judge Lawrence K. Karlton. Objections due within 21 days. (Plummer, M)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
JOSEPH M. LEYVA,
11
Plaintiff,
12
vs.
13
No. CIV S-08-0076 LKK CKD P
MORENO, et al.,
14
Defendant.
15
16
FINDINGS & RECOMMENDATIONS
/
I. Introduction
17
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action
18
seeking relief under 42 U.S.C. § 1983. This case proceeds on the original complaint filed
19
December 5, 2007 and transferred to this district on January 11, 2008. (Dkt. No. 1 (“Cmplt.”).)
20
Plaintiff claims that defendant Mandeville ordered plaintiff transferred to Pelican Bay State
21
Prison in retaliation for plaintiff’s exercise of his First Amendment Rights. (See Dkt. Nos. 28,
22
30 (dismissing other claims).) Pending before the court is defendant Mandeville’s April 28, 2011
23
motion for summary judgment. Plaintiff has filed an opposition, and defendant has filed a reply.
24
For the following reasons, the undersigned recommends that defendant’s motion be granted.
25
\\\\
26
\\\\
1
1
2
II. Summary Judgment Standards Under Rule 56
Summary judgment is appropriate when it is demonstrated that there exists “no
3
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
4
matter of law.” Fed. R. Civ. P. 56(c).
5
6
7
Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,” which it believes
demonstrate the absence of a genuine issue of material fact.
8
9
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the
10
nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary
11
judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers
12
to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be entered,
13
after adequate time for discovery and upon motion, against a party who fails to make a showing
14
sufficient to establish the existence of an element essential to that party’s case, and on which that
15
party will bear the burden of proof at trial. See id. at 322. “[A] complete failure of proof
16
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
17
immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as
18
whatever is before the district court demonstrates that the standard for entry of summary
19
judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323.
20
If the moving party meets its initial responsibility, the burden then shifts to the
21
opposing party to establish that a genuine issue as to any material fact actually does exist. See
22
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to
23
establish the existence of this factual dispute, the opposing party may not rely upon the
24
allegations or denials of its pleadings but is required to tender evidence of specific facts in the
25
form of affidavits, and/or admissible discovery material, in support of its contention that the
26
dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party
2
1
must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome
2
of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
3
(1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.
4
1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could
5
return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433,
6
1436 (9th Cir. 1987).
7
In the endeavor to establish the existence of a factual dispute, the opposing party
8
need not establish a material issue of fact conclusively in its favor. It is sufficient that “the
9
claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing
10
versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary
11
judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a
12
genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory
13
committee’s note on 1963 amendments).
14
In resolving the summary judgment motion, the court examines the pleadings,
15
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
16
any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson,
17
477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the
18
court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587.
19
Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to
20
produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen
21
Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.
22
1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply
23
show that there is some metaphysical doubt as to the material facts . . . . Where the record taken
24
as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
25
‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).
26
\\\\
3
1
On September 10, 2008, the court advised plaintiff of the requirements for
2
opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v.
3
Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and
4
Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
5
III. Discussion
6
A. Legal Standard
7
Plaintiff alleges that during a February 2004 classification hearing, defendant
8
Mandeville ignored his complaints about a prior improper disciplinary hearing and directed him
9
transferred to Pelican Bay State Prison in retaliation for those complaints.
10
To establish a First Amendment retaliation claim, plaintiff must show: (1) an
11
adverse action against him; (2) because of; (3) his protected conduct, and that such action; (4)
12
chilled his exercise of his First Amendment rights; and (5) the action did not reasonably advance
13
a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
14
Prisoners alleging retaliation claims must demonstrate that: (1) prison officials retaliated against
15
them for exercising their constitutional rights; and (2) the retaliation did not advance legitimate
16
penological interests, such as the preservation of institutional order, discipline, and security.
17
Barnett v. Centoni, 31 F.3d 813, 316 (9th Cir. 1994). Even if an inmate shows that the
18
defendants’ action was retaliatory, the inmate’s retaliation claim still fails unless he produces
19
significant probative evidence demonstrating that the retaliatory action did not advance a
20
legitimate penological interest. Id. at 815-16. “The plaintiff bears the burden of pleading and
21
proving the absence of legitimate correctional goals for the [retaliatory] conduct [at issue].” Pratt
22
v. Rowland, 65 F.3d 802, 806 (9th Cir.1995).
23
\\\\
24
\\\\
25
\\\\
26
\\\\
4
1
B. Factual Background
2
Plaintiff is serving a state prison term of 46 years to life for a 1997 conviction for
3
attempted murder. (Dkt. No. 53-4 (excerpts from plaintiff’s deposition) at 341.) The complaint
4
concerns events at California State Prison-Sacramento between April 2003 and January 2005,
5
when plaintiff was transferred to Pelican Bay State Prison. Plaintiff alleges that, on April 18,
6
20032, while waiting with a group of inmates (all identified by prison officials as Northern
7
Hispanic) to be escorted to his housing section, he was conversing with an inmate named
8
Sanchez when “Sanchez and plaintiff [were] unexpectedly attacked by two or three assailants.”
9
(Cmplt. at ¶¶ 1-7.) “While defending himself, plaintiff realized that the brunt of the assailants[’]
10
attack was directed at Sanchez. Upon realizing this plaintiff attempted to defend Sanchez.” (Id.
11
¶ 8.) Plaintiff was handcuffed and escorted to a holding cell, and later correctional staff reported
12
that plaintiff had participated in the attack on Sanchez. (Id. at ¶¶ 9-13.) As a result, plaintiff
13
“was placed in administrative segregation and criminally prosecuted for the attempted murder of
14
Sanchez[.]” (Id. at ¶ 14.) The criminal charges against plaintiff were later dismissed. (Id. at ¶
15
34.)
16
Following a September 15, 2003 disciplinary hearing at which he pled not guilty,
17
plaintiff was found guilty of attempting to murder Sanchez. (Id. at ¶¶ 22-26; see also Dkt. No. 58
18
at 33-35.) Plaintiff contends that he was denied due process of law at his disciplinary hearing
19
and was convicted based on “falsified” reports from prison staff. (Id. at ¶¶ 13-14, 16-26.) As a
20
result of his disciplinary conviction, he was assessed a 360-day loss of credits and placed in the
21
Administrative Segregation Unit from January 2004 to January 2005. (Id. at ¶¶ 26-27.)
22
On February 24, 2004, Plaintiff was seen by the prison
classification committee. During this meeting Plaintiff once again
23
24
1
25
2
26
Record citations refer to page numbers assigned by the court’s docketing system.
The complaint alleges that this incident occurred on April 19, 2003; however,
documents attached to plaintiff’s opposition to summary judgment state that it occurred on April
18, 2003. (Dkt. No. 58 at, e.g., 49, 56-59.)
5
1
attempted to explain his innocence to the committee and relayed to
them the due process violations committed during his [October
2003] 115 hearing.
2
3
R. Mandeville who headed this committee dismissed plaintiff’s
allegations as irrelevant. Mandeville essentially explained to
Plaintiff that he would find no sympathy from him or his staff that
they were tired of playing games with the Northern Hispanics as a
whole, and would continue to have them prosecuted and shipped to
different prisons. He (Mandeville) called it ‘cleaning up house.’
Mandeville and the committee members decided Plaintiff would
serve a 26 months SHU term, to be served at Pelican Bay State
Prison.
4
5
6
7
8
. . . Mandeville stated that he was not concerned about any
hardships Plaintiff might have, and that Plaintiff was leaving his
prison.
9
10
...
11
In January 2005, Plaintiff was transferred to Pelican Bay State Prison.
12
(Id. at ¶¶ 29-36.)
13
Plaintiff claims that his transfer to Pelican Bay was “committed in retaliation for
14
Plaintiff’s attempt to remove bias[ed] officers from his hearing and to vigorously defend the false
15
charges brought against him. These actions infringed on Plaintiff’s right to file or make prison
16
complaints and had a chilling effect on Plaintiff’s First Amendment rights.” (Id. at ¶ 45.)
17
C. Analysis
18
In moving for summary judgment, defendant argues that plaintiff has failed to
19
show a genuine factual dispute exists as to whether defendant retaliated against plaintiff for
20
protected First Amendment activity.
21
A key document, submitted by both plaintiff and defendant in their summary
22
judgment briefing, is a one-page report summarizing the February 25, 2004 classification
23
hearing. (Dkt. No. 53-5 at 9; Dkt. No. 58 at 49 (same) (“ICC report”).) Plaintiff acknowledged
24
in deposition testimony that the purpose of this hearing was to determine plaintiff’s Security
25
Housing Unit (SHU) term for attempted murder, not to revisit the September 2003 finding that
26
plaintiff was guilty of attempting to murder Sanchez. (Dkt. No. 53-4 at 8-10.) The hearing was
6
1
conducted by the Institutional Classification Committee (ICC), consisting of a chairman (Chief
2
Deputy Warden G. Stratton), Mandeville and two other prison officials, and recorder I. O’Brian.
3
(ICC report.) The hearing report stated that the committee
4
5
6
7
elects to: Retain in AD SEG pending transfer/MERD [minimum
eligible release date]. . . . Assess and impose SHU term eff.
4/18/03, a 36 month aggravated determinate SHU term w/MERD
of 7/18/05, RVR Log # C-03-04-049. Refer to CSR for SHU
audit/transfer to PBSP-SHU/COR-SHU.
RVR dated 4/18/03, Log # C-03-04-049, has been adjudicated and
S was found guilty of Attempted Murder. . . .
8
9
This transfer recommendation is based on S’s active SHU term
with MERD of 7/18/05.
10
...
11
Aggravating factors: Yes, S’s prior disciplinary record includes
acts of misconduct of the same or similar nature. Mitigating
Factors: None.
12
13
(Id.) Thus, the ICC report indicates that the committee decided to impose a 36-month SHU term
14
based on plaintiff’s disciplinary conviction for attempted murder, aggravated by his prior
15
disciplinary record.
16
In deposition testimony, plaintiff acknowledged that, prior to the April 2003
17
incident concerning Sanchez, he received three Rule Violation Reports (RVRs), all resulting in
18
SHU terms. (Dkt. No. 53-4 at 31-34.) The RVRs were for possessing a weapon (a razor blade) in
19
1997 and three incidents of battery on an inmate in 1997 and 1998. (Id.; see also Dkt. No. 53-5
20
at 11-15 (RVR for July 22, 1998 battery).) A SHU term assessment worksheet filled out by I.
21
O’Brian (the recorder the ICC hearing) and signed on February 25, 2004 cites plaintiff’s 1998
22
battery on an inmate as “prior behavior of same or similar nature” as an aggravating factor
23
contributing to plaintiff’s three-year term in SHU. (Dkt. No. 53-5 at 17.)
24
The ICC report further indicates that the committee would “[r]efer to CSR” to
25
effect plaintiff’s transfer to either Pelican Bay or Corcoran State Prison. (ICC report.) In a
26
declaration attached to his motion for summary judgment, defendant states: “Because California
7
1
State Prison-Sacramento did not have a SHU, the ICC recommended to the Classification Staff
2
Representative (CSR) that Leyva be transferred to either Corcoran State Prison or Pelican Bay
3
State Prison for his SHU term. I did not order Leyva to be transferred to Pelican Bay State
4
Prison, nor did I have the power to do so. Transfers are ordered by the CSR. The CSR ordered
5
Leyva to be transferred to Pelican Bay State Prison for his SHU term.” (Dkt. No. 53-3
6
(“Mandeville Decl.”) at 2, ¶¶ 7-8.)
7
Based on the foregoing evidence, defendant argues that he and other members of
8
the ICC simply determined that plaintiff’s conviction for attempted murder, aggravated by
9
plaintiff’s disciplinary record, warranted a 36-month term in SHU, and recommended to a
10
Classification Staff Representative that plaintiff be transferred to either Pelican Bay State Prison
11
or Corcoran State Prison to serve out that term. (Dkt. No. 53-1 at 5-8.)
12
In his opposition to summary judgment, plaintiff emphasizes two points: first, that
13
he was wrongfully convicted for the attempted murder of inmate Sanchez in proceedings that
14
violated due process; second, that while defendant Mandeville knew in February 2004 that
15
plaintiff’s Central File contained “exonerating evidence,” defendant “chose to do nothing” and
16
“made no mention to the other I.C.C. members of the violations or his duty to rectify a
17
constitutional wrong.” (Dkt. No. 58 (“Opp.”) at 11.) Similarly, plaintiff contends that
18
defendant’s “duties as Chief Disciplinary Office Reviewer “ required him to “ensure inmates
19
rights are protected and rectify any wrong doing when such transpires. [Citation.] . . . Instead he
20
spearheaded the recommendation of transfer (knowing CSR would approve any recommendation
21
submitted by a ICC).” (Id. at 10.) Plaintiff submits as attachments his April 18, 2003 RVR for
22
the attack on Sanchez, documents concerning the investigation into whether plaintiff participated
23
in the attack, and documentation of the September 15, 2003 hearing at which plaintiff was found
24
guilty of attempted murder. (Dkt. No. 58 at 23-35.) He also submits a signed statement from
25
inmate Sambrana dated September 20, 2003 stating that plaintiff was “an innocent bystander” to
26
the attack on Sanchez. (Id. at 41.) Thus, plaintiff appears to argue that defendant “retaliated”
8
1
against him at the February 2004 classification hearing by refusing to revisit the question of
2
whether plaintiff’s disciplinary conviction for attempted murder was supported by sufficient
3
evidence; instead, defendant recommended that plaintiff be transferred to serve out the SHU term
4
his conviction warranted.
5
Drawing all reasonable inferences in plaintiff’s favor, this does not amount to a
6
First Amendment retaliation claim.3 Plaintiff has not shown that defendant recommended him
7
for an SHU term and/or transfer based on protected conduct, nor that defendant chilled plaintiff’s
8
exercise of his First Amendment rights. The ICC’s recommendation reasonably advanced a
9
legitimate correctional goal, given that plaintiff recently had been convicted of attempted murder
10
and had served prior SHU terms for battery on inmates. As to defendant’s alleged statements
11
that he and his staff “were tired of playing games with the Northern Hispanics” and would
12
continue to have them transferred as a way of “cleaning up house,” the Ninth Circuit has held
13
that “verbal harassment or abuse . . . is not sufficient to state a constitutional deprivation under
14
42 U.S. § 1983.” Oltarzewski v..Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Moreover, these
15
statements do not establish a genuine issue as to any material fact. The undersigned will
16
therefore recommend that defendant’s motion be granted.
17
Accordingly, IT IS HEREBY RECOMMENDED THAT:
18
1. Defendant’s April 28, 2011 motion for summary judgment (Dkt. No. 53) be
19
granted; and
20
21
2. Plaintiff’s May 11, 2011 motion for witnesses at trial (Dkt. No. 55) be denied
as moot.
22
3
23
24
25
26
As to whether plaintiff’s attempted murder conviction was supported by sufficient
evidence and/or entailed due process violations, that question is not before the court and does not
appear cognizable in a § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 483-484 (1994)
(requiring that prisoners first obtain reversal or expungement of disciplinary convictions via
habeas petition or other means before challenging them in a civil rights action where success in
the civil rights action would implicitly question the validity of the litigant’s conviction or the
duration of his sentence). In deposition testimony, plaintiff acknowledged that his conviction has
not been overturned by writ of habeas corpus. (Dkt. No. 53-4 at 14.)
9
1
These findings and recommendations are submitted to the United States District
2
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
3
one days after being served with these findings and recommendations, any party may file written
4
objections with the court and serve a copy on all parties. Such a document should be captioned
5
“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
6
shall be served and filed within fourteen days after service of the objections. The parties are
7
advised that failure to file objections within the specified time may waive the right to appeal the
8
District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
9
Dated: December 19, 2011
10
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
11
12
13
14
2
15
leyv0076.msj
16
17
18
19
20
21
22
23
24
25
26
10
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?