Johnson v. Lee et al

Filing 42

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/26/2013 ORDERING that defendants' 39 motion for summary judgment is GRANTED; and the Clerk to enter judgment for defendants and close the case. CASE CLOSED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHESTER JOHNSON,

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Plaintiff,

No. 2:09-cv-02076 EFB P

Defendants.

ORDER

vs.

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J. LEE, et al.,

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/

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. This case is before the undersigned pursuant to the parties’ consent. Dckt. Nos.

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4, 23; see 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2). Pending

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before the court is the July 25, 2012 motion to for summary judgment filed by all defendants.

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Dckt. No. 39. For the reasons explained below, the motion must be granted.

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I.

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The Complaint
This action proceeds on the verified complaint filed July 28, 2009. Dckt. No. 1. In the

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complaint, plaintiff asserts that defendants violated his rights to due process and equal protection

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by issuing him a disciplinary violation report that contained false information and subsequently

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finding him guilty of the offense. Id. Specifically, plaintiff alleges that defendant Lee filed a

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Rules Violation Report (“RVR”) against him for refusing to work which falsely stated that a
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Denis Korte1 had ordered plaintiff to report to work. Id. at 3.2 At the hearing on the RVR,

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defendant Chirila, acting as Senior Hearing Officer, found plaintiff guilty. Id. at 5-6. Plaintiff

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was assessed a 90-days loss of privileges (visits, quarterly packages, dayroom activities, and

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canteen) and a 30-day loss of time credits. Id. at 3-4.

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Plaintiff appealed the guilt finding, arguing that Korte was not his supervisor, did not

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participate in authoring the RVR, and told plaintiff that he believed the RVR was illegal. Id. at

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8. Plaintiff’s appeal was granted on December 2, 2008 at the third level of review. Id. at 11-12.

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The appeals reviewer concluded that plaintiff did refuse to report to work (there was an inmate

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strike occurring at the time), but that the RVR should be reversed because defendant Chirila had

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not discussed whether Korte was the person who ordered plaintiff to work or why someone other

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than Korte signed the RVR. Id. at 12.

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According to plaintiff,

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The loss of privileges (restricted) [sic] plaintiff’s ability to participate in other
activities such as Alcohol Anonymous [sic], Narcotic Anonymous [sic], and to
remain disciplinary free, [and] did affect the outcome of plaintiff’s appearance
before the Parole Board on 8-25-08. Where plaintiff was found unsuitable,
violated plaintiff’s constitutional right to due process and equal protection.

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Id. at 4.

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II.

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Defendants’ Factual Assertions
Defendants provide the following factual background: Plaintiff refused to go to work on

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January 7, 2008 as part of a larger inmate strike at California State Prison, Solano (“CSP-

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Solano”). Dckt. No. 39-2, Defs.’ Statement of Undisputed Facts ISO Defs.’ Mot. for Summ. J.

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(hereinafter “DUF”) 3. Because so many inmates participated in the strike, correctional officials

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issued RVRs on a fill-in-the-blank template, with blanks for the date and time, inmate name,

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The documents in this case and the parties sometimes refer to this individual as “D.
Kotz” or “D. Kortz.”
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Page numbers cited herein refer to those assigned by the court’s electronic docketing
system and not those assigned by the parties.
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name of the reporting officer, what the inmate stated, and how the inmate was identified. DUF

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4. Defendant Lee signed many RVRs for other officers, who had filled out the remainder of the

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forms. DUF 6-7. Defendant Lee thought Korte was plaintiff’s supervisor. DUF 7.

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Plaintiff was given a copy of the RVR on January 29, 2008, and the hearing occurred on

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February 4, 2008. DUF 8, 9. Plaintiff did not request to have any witnesses present at the

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hearing. DUF 11. Plaintiff did not inform defendant Chirila that defendant Lee signed for

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Korte. DUF 12. Plaintiff simply denied the charges of the RVR and stated that he had said he

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was afraid for his safety but did not say he would not go to work. DUF 13. Plaintiff was found

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guilty and lost 30 days of worktime credits and 90 days of Friday visits. DUF 15, 16. Plaintiff’s

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“privilege group” was reduced to “Privilege Group C” for 90 days. DUF 16. This meant no

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family visits, one-fourth the maximum monthly canteen draw “as authorized by the secretary,”

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emergency calls only, limited yard access and no other recreational or entertainment activities,

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and no personal property packages. DUF 17. The day that plaintiff missed from work was

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deemed an “A” day; i.e., an unexcused absence. DUF 31. While plaintiff’s inmate appeal

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resulted in the withdrawal of the RVR and restoration of plaintiff’s worktime credits, the “A”

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day remained on his record, because the appeals reviewer determined that plaintiff had, indeed,

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refused to work. DUF 31.

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Plaintiff is serving an indeterminate sentence and has passed his minimum eligible parole

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date. DUF 32, 33. Plaintiff’s release depends on a determination by the parole board that he is

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suitable for parole, thus the “A” day did not impact the duration of his sentence in any way other

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than potentially impacting the parole board’s suitability determination. DUF 33, 34. At his 2008

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suitability hearing, the board denied parole based on a variety of factors. DUF 38-52. One

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factor was the January 2008 RVR for refusing to work. DUF 38. The board also considered:

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plaintiff’s adverse psychological report indicating a moderate risk of violent recidivism;

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plaintiff’s multiple commitment offenses which were committed in a heinous, cruel, and callous

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manner in the view of the board; plaintiff’s criminal and social histories which included past
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crimes, drug use, and other poor behavior; plaintiff’s other substantial misconduct in prison;

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plaintiff’s “questionable” parole plans; and plaintiff’s failure to learn the precepts of Alcoholics

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Anonymous and Narcotics Anonymous. DUF 38-52.

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Plaintiff was again denied parole in 2010, after the RVR at issue here was removed from

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his file. DUF 54.

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III.

Plaintiff’s Response to Defendants’ Factual Assertions

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Plaintiff sets forth a number of purported disputes in response to defendants’ proffered

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facts. Dckt. No. 35, Pl.’s Statement of Undisputed Facts In Opp’n to Defs.’ Mot. for Summ. J.

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For the most part, plaintiff appears to object to defendants’ declarations and other supporting

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evidence without explaining why that evidence does not support the proffered fact. The court

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has reviewed defendants’ evidence and finds plaintiff’s objections thereto to be without merit.

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Plaintiff asserts in his declaration supporting his opposition to the instant motion that, at

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the RVR hearing, he told defendant Chirila that Korte had stated that he did not order plaintiff to

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work and did not author the RVR. Dckt. No. 35 at 21. Plaintiff attests that he told defendant

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Chirila that Korte had told him he would testify that the RVR was illegal. Id. Plaintiff also told

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Chirila that defendant Lee was not his supervisor and had not ordered him to go to work. Id.

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Plaintiff claims in his opposing memorandum that defendant Chirila refused plaintiff’s request to

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call Korte to testify at the hearing. Id. at 6.

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IV.

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

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

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judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant

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to the determination of the issues in the case, or in which there is insufficient evidence for a jury

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to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600

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(1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v.

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U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment
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motion asks whether the evidence presents a sufficient disagreement to require submission to a

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jury.

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The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims

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or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to

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“‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for

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trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

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(quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally,

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under summary judgment practice, the moving party bears the initial responsibility of presenting

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the basis for its motion and identifying those portions of the record, together with affidavits, if

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any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477

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U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving

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party meets its burden with a properly supported motion, the burden then shifts to the opposing

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party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e);

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Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).

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A clear focus on where the burden of proof lies as to the factual issue in question is

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crucial to summary judgment procedures. Depending on which party bears that burden, the party

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seeking summary judgment does not necessarily need to submit any evidence of its own. When

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the opposing party would have the burden of proof on a dispositive issue at trial, the moving

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party need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National

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Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters

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which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-

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24 (1986). (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive

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issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings,

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depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment

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should be entered, after adequate time for discovery and upon motion, against a party who fails

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to make a showing sufficient to establish the existence of an element essential to that party’s
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case, and on which that party will bear the burden of proof at trial. See id. at 322. In such a

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circumstance, summary judgment must be granted, “so long as whatever is before the district

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court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is

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satisfied.” Id. at 323.

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To defeat summary judgment the opposing party must establish a genuine dispute as to a

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material issue of fact. This entails two requirements. First, the dispute must be over a fact(s)

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that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S.

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at 248 (“Only disputes over facts that might affect the outcome of the suit under the governing

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law will properly preclude the entry of summary judgment.”). Whether a factual dispute is

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material is determined by the substantive law applicable for the claim in question. Id. If the

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opposing party is unable to produce evidence sufficient to establish a required element of its

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claim that party fails in opposing summary judgment. “[A] complete failure of proof concerning

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an essential element of the nonmoving party’s case necessarily renders all other facts

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immaterial.” Celotex, 477 U.S. at 322.

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Second, the dispute must be genuine. In determining whether a factual dispute is genuine

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the court must again focus on which party bears the burden of proof on the factual issue in

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question. Where the party opposing summary judgment would bear the burden of proof at trial

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on the factual issue in dispute, that party must produce evidence sufficient to support its factual

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claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion.

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit

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or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue

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for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to

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demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such

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that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson,

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477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

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The court does not determine witness credibility. It believes the opposing party’s

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evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255;

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Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the

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proponent must adduce evidence of a factual predicate from which to draw inferences. American

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Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J.,

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dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts

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at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441

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(9th Cir. 1995). On the other hand,“[w]here the record taken as a whole could not lead a rational

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trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,

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475 U.S. at 587 (citation omitted); Celotex., 477 U.S. at 323 (If the evidence presented and any

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reasonable inferences that might be drawn from it could not support a judgment in favor of the

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opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any

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genuine dispute over an issue that is determinative of the outcome of the case.

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Concurrent with the instant motion, defendant advised plaintiff of the requirements for

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opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dckt. No. 39-

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11; see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th

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Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d

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409 (9th Cir. 1988).

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V.

Analysis

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Plaintiff alleges that defendants deprived him of due process by imposing discipline on

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him based on an RVR that contained some false information regarding who ordered plaintiff to

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work and who authored the RVR. These allegations implicate two aspects of due process: (1)

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the process due at a disciplinary hearing and (2) the process due at a parole suitability hearing.

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Where good-time credits may be revoked, prisoners facing discipline are entitled to the

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following procedural protections under the Due Process Clause: (1) written notice of the charges,

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(2) at least 24 hours of preparation time before the hearing, (3) a written statement of decision,
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(4) the right to present witnesses and evidence “when permitting him to do so will not be unduly

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hazardous to institutional safety or correctional goals,” and (5) assistance if the inmate is

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illiterate or the issues are complex. Wolff v. McDonnell, 418 U.S. 539, 564-67 (1974). There is

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no dispute in this case that plaintiff received written notice over 24 hours prior to the hearing,

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was provided a written statement of decision, and did not require assistance as he was not

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illiterate and the issues were not complex. DUF 8-10, 18; Dckt. No. 35 at 9.

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Plaintiff, in response to the instant motion, contends that defendant Chirila denied his

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request to call Korte as a witness at his disciplinary hearing. Dckt. No. 35 at 6. Plaintiff’s

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complaint is devoid of any allegation that plaintiff was not allowed to call witnesses at the

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hearing. Rather, the complaint simply alleges that the RVR contained false information. Dckt.

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No. 1. Plaintiff’s inmate appeals similarly contain no allegation that defendant Chirila refused a

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request to call Korte to testify at the hearing. Dckt. No. 39-4 at 4-6. Plaintiff’s new allegation is

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lacking in detail, self-serving, and entirely uncorroborated. Accordingly, the court finds that

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plaintiff has failed to raise a triable issue of material fact that he was not allowed to call

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witnesses by so asserting for the first time in opposing the motion for summary judgment. See

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Nilsson v. City of Mesa, 503 F.3d 947, 952 n.2 (9th Cir. 2010); Villiarimo v. Aloha Island Air,

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Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). As there is no dispute that the remaining required

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procedural protections were provided to plaintiff in connection with the RVR hearing, there is no

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triable issue of material fact that plaintiff was denied due process there.

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Nor is there any dispute that plaintiff received all the process due at his parole suitability

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hearing in 2008. While plaintiff alleges that the presence of the RVR in his file caused him to be

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denied parole wrongfully, all that federal due process requires in the context of a parole

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suitability hearing is that plaintiff be provided an opportunity to be heard and a statement of

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reasons why parole was denied. Swarthout v. Cooke, __ U.S. __, 131 S. Ct. 859, 861-62 (2011).

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Plaintiff makes no allegation that he was not provided an opportunity to be heard at his 2008

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parole review. Furthermore, defendants have provided the transcript of the parole board’s
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statement of decision. Dckt. No. 39-5 at 10-12. That transcript shows that a statement of

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decision was provided to plaintiff. Accordingly, there is no triable dispute over the facts

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establishing that plaintiff was not deprived of due process at his parole review.

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Lastly, plaintiff has not raised a triable issue of material fact that defendants violated his

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rights under the Equal Protection Clause. To establish a violation of that clause, a plaintiff must

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show that he was treated in a manner inconsistent with others similarly situated, and that

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defendant acted with an intent or purpose to discriminate against him based upon membership in

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a protected class. Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005).

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Plaintiff conclusorily asserts that he is a member of a protected class, but he has not identified

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any protected class to which he belongs, much less produced evidence showing that any

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defendant intentionally discriminated against him based on his membership in such a class.

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As plaintiff has failed to provide evidence demonstrating that a triable issue of material

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fact exists such that this case must proceed to trial, defendants’ motion for summary judgment is

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granted.

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VI.

Order

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For all of the above reasons, the court ORDERS that:

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1. Defendants’ July 25, 2012 motion for summary judgment (Dckt. No. 39) is granted;

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2. The Clerk is directed to enter judgment for defendants and close the case.

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Dated: February 26, 2013.

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