Penton v. Hubard et al
Filing
251
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 08/11/21 GRANTING 220 -3 defendants' request for judicial notice. Also, RECOMMENDING that the motion for summary judgment 220 filed by defendants Bradford, Donahoo, Gaddi, Lynch, Morrow, Salas, Virga and Walker be granted in part and denied in part. Motion 220 referred to Judge Troy L. Nunley. Objections due within 30 days.(Plummer, M)
Case 2:11-cv-00518-TLN-KJN Document 251 Filed 08/12/21 Page 1 of 86
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY PENTON,
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No. 2:11-cv-0518 TLN KJN P
Plaintiff,
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v.
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HUBARD, et al.,
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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.
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Plaintiff, a state prisoner, proceeds through counsel. This civil rights action proceeds on
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plaintiff’s claims that certain defendants interfered with plaintiff’s access to the courts and
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improperly withheld his mail, and defendants Salas and Lynch retaliated against plaintiff. 1
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Defendants Donahoo, Salas, Walker, Bradford, Lynch, Virga, Morrow and Gaddi filed a request
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for judicial notice, and a motion for summary judgment, which is fully briefed. 2
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On April 14, 2020, defendants Pool, Quinn and Besenaiz were granted judgment on the
pleadings. (ECF No. 207.) Plaintiff’s third cause of action was solely pled as to defendant Pool.
Defendant Nunez, despite service of process, has not appeared in this action. Plaintiff’s motion
for default judgment is pending.
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Defendant L. Johnson is represented by private counsel; the moving defendants are represented
by the Office of the Attorney General. Cross-motions for summary judgment filed by plaintiff
and defendant Johnson will be addressed separately.
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As set forth more fully below, the undersigned grants the request for judicial notice, and
finds that defendants’ motion should be granted in part and denied in part.
BACKGROUND
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Plaintiff proceeds on his unverified fourth amended complaint, filed by plaintiff’s counsel
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on April 12, 2018. 3 Plaintiff alleges in his first cause of action that defendants Bradford,
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Morrow, L. Johnson, Walker, Virga, Donahoo, Nunez, Gaddi, and Does 1-11 violated plaintiff’s
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right to access the courts in violation of the First and Fourteenth Amendments. (ECF No. 104 at
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20-21.) “As a result, [plaintiff] was not able to challenge his unconstitutionally increased
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sentence in light of the Ninth Circuit’s opinion in Butler v. Curry,” “constitut[ing] active
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interference with [plaintiff’s] right of access to the courts, and resulted in a loss of a substantial,
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nonfrivolous claim.” (Id.) 4
In his second cause of action, plaintiff alleges that defendants Johnson, Walker, Virga,
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Donahoo, Nunez, Gaddi, and Does 1-11, wrongfully withheld plaintiff’s mail without notice and
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with no legitimate penological reasons, from November 8, 2007, through July 29, 2008. (ECF
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No. 104 at 25.) Plaintiff states he “still does not know the identities of Doe Defendants 1-11, or
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who else was responsible for the withholding of his mail.” (ECF No. 104 at ¶ 79.)
Plaintiff alleges in his fourth cause of action that defendants Lynch, Salas, and Does 12-13
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violated plaintiff’s First and Fourteenth Amendment rights to file prison grievances without
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retaliation. (ECF No. 104 at 29.) Defendant Salas, receiving and release property officer,
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returned plaintiff’s 2008 annual package to the vendor without prior notice or explanation, and
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plaintiff did not receive the package or a refund. (ECF No. 104 at ¶ 68.) “Also during this time,”
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defendant Lynch told plaintiff that “you have nothing coming to you, referring to withholding
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Unverified allegations in pleadings do not create genuine disputes of material fact on summary
judgment. See Moran v. Selig, 447 F.3d 748, 759 (9th Cir. 2006) (“the complaint in this case
cannot be considered as evidence at the summary judgment stage because it is unverified.”).
However, the court relies on the fourth amended complaint solely to provide background details
about this lawsuit and not as substantive evidence in support of, or in opposition to, the pending
motions for summary judgment.
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Butler v. Curry, 528 F.3d 624 (9th Cir.), cert. denied, 129 S. Ct. 767 (2008).
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[plaintiff’s] rights,” “and also told [plaintiff] that he should do all that he can to transfer to
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another prison.” (ECF No. 104 at 16 ¶ 69, 29.) Plaintiff alleges such acts and omissions were in
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retaliation for plaintiff filing prison grievances.
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Plaintiff sues all of the defendants in their individual capacities. He seeks a declaratory
judgment, money damages, costs and attorneys’ fees. (ECF No. 104 at 29-30.)
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REQUEST FOR JUDICIAL NOTICE
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Moving defendants ask the court to take judicial notice of the following: plaintiff’s
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habeas case filed in the federal district court, Penton v. Kernan, No. 3:06-cv-0233 WQH RBM
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(S.D. Cal.) (ECF No. 220-3 at 6-89) (DEF 5 331-414); California Code of Regulations, Title 15, in
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effect in 2007-2008 (ECF No. 220-3 at 91-112) (DEF 416-437); and certain rulings issued in the
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instant action (ECF No. 220-3 at 114-148) (DEF 439-473). Plaintiff did not oppose the request.
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The undersigned grants the request for judicial notice because such documents are
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“capable of accurate and ready determination by resort to sources whose accuracy cannot
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reasonably be questioned.” Fed. R. Evid. 201(b)(2).
SUMMARY JUDGMENT STANDARDS UNDER RULE 56
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Summary judgment is appropriate when it is demonstrated that the standard set forth in
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Federal Rule of Civil procedure 56 is met. “The court shall grant summary judgment if the
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movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
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judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]the moving party always bears the
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initial responsibility of informing the district court of the basis for its motion, and identifying
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those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
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together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
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of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered
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Fed. R. Civ. P. 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving
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party need only prove that there is an absence of evidence to support the non-moving party’s
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case.” Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.),
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“DEF” is used to denote defendants’ Bates numbers.
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627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P.
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56 advisory committee’s notes to 2010 amendments (recognizing that “a party who does not have
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the trial burden of production may rely on a showing that a party who does have the trial burden
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cannot produce admissible evidence to carry its burden as to the fact”). Indeed, summary
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judgment should be entered, after adequate time for discovery and upon motion, against a party
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who fails to make a showing sufficient to establish the existence of an element essential to that
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party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477
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U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving
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party’s case necessarily renders all other facts immaterial.” Id. at 323.
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Consequently, if the moving party meets its initial responsibility, the burden then shifts to
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the opposing party to establish that a genuine issue as to any material fact actually exists. See
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to
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establish the existence of such a factual dispute, the opposing party may not rely upon the
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allegations or denials of its pleadings, but is required to tender evidence of specific facts in the
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form of affidavits, and/or admissible discovery material in support of its contention that such a
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dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party
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must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome
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of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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(1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.
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1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return
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a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436
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(9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d
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1564, 1575 (9th Cir. 1990) (en banc).
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In the endeavor to establish the existence of a factual dispute, the opposing party need not
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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual
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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at
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trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce
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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”
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Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963
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amendments).
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In resolving a summary judgment motion, the court examines the pleadings, depositions,
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answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R.
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Civ. P. 56(c). The evidence of the opposing party is to be believed. See Liberty Lobby, Inc., 477
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U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court
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must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless,
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inferences are not drawn out of the air, and it is the opposing party’s obligation to produce a
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factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines,
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602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally,
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to demonstrate a genuine issue, the opposing party “must do more than simply show that there is
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some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could
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not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for
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trial.’” Matsushita, 475 U.S. at 586 (citation omitted).
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OTHER APPLICABLE LEGAL STANDARDS
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To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate: (1) the
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violation of a federal constitutional or statutory right; and (2) that the violation was committed by
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a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v.
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Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil
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rights claim unless the facts establish the defendant’s personal involvement in the constitutional
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deprivation or a causal connection between the defendant’s wrongful conduct and the alleged
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constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v.
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Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). That is, plaintiff may not sue any official on the
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theory that the official is liable for the unconstitutional conduct of his or her subordinates.
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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The requisite causal connection between a
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supervisor’s wrongful conduct and the violation of the prisoner’s constitutional rights can be
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established in a number of ways, including by demonstrating that a supervisor’s own culpable
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action or inaction in the training, supervision, or control of his subordinates was a cause of
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plaintiff’s injury. Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011).
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I. Summary Judgment Motion re Exhaustion (Walker, Virga, Donahoo, Salas & Lynch)
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A. Undisputed Facts (“UDF”) re Exhaustion 6
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1. Plaintiff was a prisoner housed at California State Prison, Sacrament (“CSP-SAC”) at
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all times relevant herein.
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2. The California Department of Corrections and Rehabilitation (“CDCR”) provides its
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prisoners with an administrative appeals process in which prisoners may administratively appeal
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any decision, action, condition or policy by the department or staff which they can demonstrate
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has an adverse effect upon their welfare. Cal. Code Regs., Title 15, § § 3084.1-3084.7 et seq.
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(2007-2008 & current). (ECF No. 220-3 (RJN) at 96-102 (DEF 421-27).)
3. Between August 31, 2007, and February 24, 2011, the OOA received only two inmate
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appeals potentially related to the remaining defendants and the allegations in plaintiff’s fourth
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amended complaint: IAB log no. 0813106 (institutional log no. SAC-08-1769); and IAB log no.
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0805882 (institutional log no. SAC-07-02453). (ECF 220-4 at 6-7 (Moseley Decl. at ¶¶ 5-7);
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(ECF No. 220-4 at 10-58 (Exs. A-C, DEF 005-054).)
4. Inmate appeal log no. SAC-07-2453 relates to plaintiff’s problems with mail, but the
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parties dispute the scope of plaintiff’s mail claims grieved therein. (ECF No. 220-4 at 55, 57-58
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(DEF 051, 053-54.) However, it is undisputed that appeal log no. SAC-07-2453 exhausted
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plaintiff’s allegation that defendants impeded the delivery of his outgoing personal
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correspondence.
5. Inmate appeal log no. SAC-08-1769 relates to plaintiff’s difficulties accessing the law
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library in various ways which plaintiff alleges interfered with his access to the courts. It is
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undisputed that appeal log no. SAC-08-1769 exhausts plaintiff’s claims against defendants
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Bradford and Morrow for denying plaintiff access to the prison law library prior to September 30,
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2007. (ECF Nos. 220-1 at 23; 230 at 15.) The parties dispute whether such appeal also exhausts
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any of plaintiff’s claims that arose in 2008.
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For purposes of summary judgment, the undersigned finds the following facts are undisputed,
unless noted otherwise.
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6. From August 31, 2007, through February 24, 2011, plaintiff received no other third and
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final level of review addressing the substance or underlying merits of an inmate appeal related to
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the allegations in plaintiff’s fourth amended complaint or any remaining defendant. (ECF No.
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220-4 at 6-7 (Moseley Decl.) (DEF 002-003); (DEF 005-054).)
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7. From August 31, 2007, through February 24, 2011, plaintiff did not submit any other
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inmate appeals that were accepted for review at CSP-SAC related to the allegations in plaintiff’s
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fourth amended complaint or any remaining defendant. (ECF No. 220-4 at 60-62 (DEF 056-
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058)); (DEF 059-136).
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8. On August 5, 2008, plaintiff submitted an inmate appeal stating: “On July 29, 2018, I
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received via ASU legal mail officer C/O Gaddi 9 pieces of legal mail dating as far back as Nov. 9,
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2007, through April 8, 2008, without any explanation.” (ECF No. 220-4 at 145 (DEF 141).) As a
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result, plaintiff wrote that his habeas petition was terminated, and he defaulted an opportunity to
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request oral argument in his civil appeal. (Id.) Documents confirm that former defendant Pool
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screened out such appeal at the second and third levels. (See ECF No. 33 at 10.)
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9. On September 11, 2008, plaintiff submitted an inmate appeal regarding the return of
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his 2008 annual package. (ECF No. 220-4 at 168 (DEF 164).) Plaintiff wrote that the appeal was
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“remedial in an effort to prevent ad seg property staff from sending [his] annual package back.”
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(Id.) Plaintiff complained that on September 8, 2008, he received notice that his package was
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being returned despite plaintiff’s eligibility to receive one. (Id.) Documents confirm that Pool
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screened out this appeal at the second and third levels of review. (ECF No. 220-4 at 143 (Pool
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Decl.) (DEF 139); ECF No. 220-4 at 155-57 (DEF 151-53).)
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10. The CDCR has no record that plaintiff filed a separate grievance in which he asserted
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that defendant Lynch retaliated against him based on plaintiff’s protected conduct. (ECF No.
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220-4 at 60-62 (DEF 056-058; Pl.’s Dep. at 45:12-23; 46:3-24 (DEF 328-29).)
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B. Legal Standards re Exhaustion of Administrative Remedies
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The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be
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brought with respect to prison conditions under section 1983 . . . , or any other Federal law, by a
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prisoner confined in any jail, prison, or other correctional facility until such administrative
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remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion
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requirement applies to all inmate suits about prison life, whether they involve general
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circumstances or particular episodes, and whether they allege excessive force or some other
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wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The purpose of the PLRA was “to reduce
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the quantity and improve the quality of prisoner suits.” Id. at 524.
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Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731,
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741 (2001), and “[p]roper exhaustion demands compliance with an agency’s deadlines and other
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critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). The Supreme Court has
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also cautioned against reading futility or other exceptions into the statutory exhaustion
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requirement. See Booth, 532 U.S. at 741 n.6; Ross v. Blake, 136 S. Ct. 1850, 1857, 1859 (2016).
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Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion
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requirement by filing an untimely or otherwise procedurally defective administrative grievance or
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appeal. See Woodford, 548 U.S. at 90-93. “[T]o properly exhaust administrative remedies
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prisoners ‘must complete the administrative review process in accordance with the applicable
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procedural rules,’ [] - rules that are defined not by the PLRA, but by the prison grievance process
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itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88). See also
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Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison system’s
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requirements ‘define the boundaries of proper exhaustion.’”) (quoting Jones v. Bock, 549 U.S. at
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218). When the rules of the prison do not dictate the requisite level of detail for proper review, a
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prisoner’s complaint “suffices if it alerts the prison to the nature of the wrong for which redress is
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sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). This requirement is so because
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the primary purpose of a prison’s administrative review system is to “notify the prison of a
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problem and to facilitate its resolution.” Griffin, 557 F.3d at 1120; accord Morton v. Hall, 599
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F.3d 942, 946 (9th Cir. 2010). The grievance need not include legal terminology or legal theories
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unless they are needed to provide notice of the harm being grieved. Griffin, 557 F.3d at 1120. A
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grievance is not required to include every fact necessary to prove each element of an eventual
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legal claim. Id. The purpose of a grievance is to alert the prison to a problem and facilitate its
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resolution, not to lay groundwork for litigation. Id. Rather, the grievance should include
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sufficient information “to allow prison officials to take appropriate responsive measures.” Id. at
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1121 (citation and internal quotation omitted).
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Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Jones
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v. Bock, 549 U.S. at 204, 216. It is the defendant’s burden “to prove that there was an available
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administrative remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc) (citing
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Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996).) The burden then shifts to the
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plaintiff to show that the administrative remedies were unavailable. See Albino, 747 F.3d at
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1172.
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A prisoner may be excused from complying with the PLRA’s exhaustion requirement if
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he establishes that the existing administrative remedies were effectively unavailable to him. See
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Albino, 747 F.3d at 1172-73. When an inmate’s administrative grievance is improperly rejected
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on procedural grounds, exhaustion may be excused as effectively unavailable. Sapp v. Kimbrell,
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623 F.3d 813, 823 (9th Cir. 2010); see also Nunez v. Duncan, 591 F.3d 1217, 1224-26 (9th Cir.
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2010) (warden’s mistake rendered prisoner’s administrative remedies “effectively unavailable”);
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Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to proceed to third
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level where appeal granted at second level and no further relief was available).
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“If undisputed evidence viewed in the light most favorable to the prisoner shows a failure
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to exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are
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disputed, summary judgment should be denied, and the district judge rather than a jury should
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determine the facts.” Albino, 747 F.3d at 1166. The question of exhaustion “should be decided,
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if feasible, before reaching the merits of a prisoner’s claim.” Id. at 1170. If under the Rule 56
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summary judgment standard, the court concludes that plaintiff failed to exhaust administrative
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remedies, the proper remedy is dismissal without prejudice. Wyatt v. Terhune, 315 F.3d 1108,
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1120 (9th Cir. 2003), overruled on other grounds by Albino, 747 F.3d 1162.
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C. The Prison’s Grievance System
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The State of California provides its prisoners the right to appeal administratively “any
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departmental decision, action, condition or policy which they can demonstrate as having an
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adverse effect upon their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a) (2010). It also provides
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them the right to file appeals alleging misconduct by correctional officers and officials. Id. at
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§ 3084.1(e). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Appeals
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must be submitted within fifteen working days of the event being appealed, and the process is
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initiated by submission of the appeal to the informal level, or in some circumstances, the first
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formal level. Id. at §§ 3084.5, 3084.6(c). In order to exhaust available administrative remedies
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within this system, a prisoner must proceed through several levels of appeal: 7 (1) informal
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resolution, (2) formal written appeal on a 602 inmate appeal form, (3) second level appeal to the
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institution head or designee, and (4) third level appeal to the Director of the California
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Department of Corrections and Rehabilitation. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D.
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Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director’s level of
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review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38; 15 Cal. Code Regs.
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§ 3084.7(d)(3).
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D. Discussion
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The court addresses, in turn, the grievances plaintiff submitted to determine whether
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plaintiff properly exhausted his administrative remedies prior to filing the instant action.
1. Appeal No. SAC-07-2453
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The Documentary Evidence
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On September 2, 2007, plaintiff submitted inmate appeal log no. SAC-07-2453, describing
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his problem as follows:
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This (602) complaint arises out of a mail issue. Prison staff/officials
are impeding my correspondence with family and friends outside of
prison. Article 4 Title 15 “mail” (general policy) provides in part
that “the Department encourages correspondence between inmates
and persons outside the correctional facilities.” It further states “the
sending and receiving of mail by inmates will be uninhibited except
as provided in this article.” My mail has not been leaving the
institution/prison until 3 weeks after I’ve given it to the prison staff
at my cell door to be mailed. My close family & friends who
communicate with [me] on a regular basis have informed me that my
letters are “post marked” 3 weeks from the date that it’s given to the
officer at my door which is recorded at the top right corner of every
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This four-step process was effective prior to January 28, 2011. The current statute eliminates
the informal level, retains the first, second, and third levels, and reaffirms that third level review
exhausts administrative remedies. 15 Cal. Code. Regs. § 3084.7(d)(3) (eff. Jan. 28, 2011).
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letter that I write. These actions, holding my mail both going &
coming, is believed to be in retaliation by prison staff for a pending
staff complaint authored by this writer for prison staff brutality,
excessive use of force, assault by staff against an inmate, and denial
of medical treatment. (Log No. #SAC-07-01905) Instead of
encouraging family ties and correspondence prison staff members
are actually inhibiting correspondence and discouraging family ties
and communication.
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By virtue of the fact that prison staff are holding my mail 3 weeks
without delivering it to the U.S. Postal Service, and without
providing me with any advanced notification for their reasons for
holding my mail for such an extensive period of time, they are
violating “federal law” without a legitimate penological reason for
doing so . . . furthermore, these acts are destroying family ties and
breaking down the process of effective communication by holding
important materials such as birthday & anniversary cards for my wife
and children, cards & letters to my mother, family and friends . . .
holding most of these correspondences for 3 weeks before mailing
them at the U.S. Postal Service.
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In essence, prison staff are stripping these correspondences of [their]
value & sentiment . . . .
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Also, I received notification from my old cell mate that mail had
come to me at my old cell. However, I have not received any rerouted mail since my placement in ad seg.
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There has been 3 incidents of this nature. My letters were sent on 723-07, 7-25-07, & 7-26-07, the return correspondence indicating that
the mail had been delayed was received on 8-31-07. . . .
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(ECF No. 220-4 at 55, 57-58 (DEF 051, 053-54); ECF No. 231 at 7 (PENTON_VIRGA00001,
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00003-4).) Plaintiff requested the following actions: (1) to be informed in writing why his mail
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is being withheld and by whom; (2) to be free from retaliation for plaintiff’s staff complaint; and
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(3) to have all my mail, legal and regular, leave the institution “as set forth in the plan of
21
operation.” (ECF No. 220-4 at 55.)
On October 10, 2007, plaintiff’s appeal was received and denied at the informal level of
22
23
24
25
26
27
28
review:
We receive and process mail each day. Any mail received with your
name and location will be forwarded on to you after processing. Any
outgoing mail received in the mailroom is processed and sent out the
“same” day. We do not hold mail in the mailroom. We have 10
working days to receive mail from the post office/post mark and
another 5 days for processing once it arrives here.
(ECF No. 220-4 at 44 (DEF 051); ECF No. 231 at 6 (PENTON_VIRGA00001).)
11
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1
In his request for formal review, plaintiff complained that the informal response was
2
ambiguous and failed to answer plaintiff’s question, why was his mail being held, and if his mail
3
was being flagged, by whom? (Id.) The first level review response was assigned to defendant
4
Johnson, who characterized plaintiff’s appeal as: “You contend that your mail is being withheld
5
by Mailroom staff. You are requesting to be notified in writing when your mail is being held.
6
You are requesting not to be retaliated against for filing this complaint.” (ECF No. 220-4 at 72
7
(DEF 068); ECF No. 231 at 7 (PENTON_VIRGA00005).) Following an interview with plaintiff,
8
the appeal was partially granted on December 21, 2007, and defendant Johnson summarized his
9
investigation as follows:
10
11
12
13
14
15
16
17
The Department rule(s) regarding this issue contained in the
California Code of Regulations (CCR), Title 15, Section 3138,
General Mail Regulations, (e) and the Mailroom Operational
Procedure 17, which dictates that the Mailroom process outgoing and
Incoming mail within a reasonable time frame. The Mailroom
forwards all mail received from the Facilities in the form of outgoing
mail the same day that it is received in the Mailroom. Mail is
forwarded out daily Monday through Friday, excluding State
mandated holidays.
All incoming mail is processed and sent to the Facilities within two
working days. For example, mail received in the Institution on
Monday is processed and forwarded to the Facilities on Tuesday.
19
In response to your request to be notified in case your mail is
withheld, you will be given notification in the form of Notification
of Disapproval-Mail/Packages/Publications (CDCR 1819) after
receiving this form you will have 15 working days to decide the
disposition of the mail in question.
20
(ECF No. 220-4 at 72 (DEF 068); ECF No. 231 at 7 (PENTON_VIRGA00005-6).)
21
On July 18, 2008, plaintiff wrote a request for second level review:
18
22
24
[Plaintiff] is still dissatisfied with this response as the included
summary contends I’ve made the complaint that my mail is being
withheld by mail room staff! I never said that. Instead my complaint
contends that my correspondence is being impeded by prison staff.
Please respond accordingly. (Returnee from out to court status.)
25
(ECF No. 220-4 at 69 (DEF 065); ECF No. 231 at 7 (PENTON_VIRGA00002).) The appeal was
26
screened out and returned to plaintiff on July 18, 2008, marked untimely because it exceeded the
27
15 working day time limit and “failed to offer a credible explanation as to why he could not
28
submit the appeal within established time limits.” (ECF No. 220-4 at 76 (DEF 072); ECF No.
23
12
Case 2:11-cv-00518-TLN-KJN Document 251 Filed 08/12/21 Page 13 of 86
1
231 at 12 (PENTON_VIRGA00007).) In the comments was written “602 returned to you 1/4/08.
2
It was received 7/18/08.” (Id.) On July 23, 2008, plaintiff resubmitted the appeal with a copy of
3
his CDC 114-D confirming he was sent out to court. (ECF No. 220-4 at 74-75 (DEF 070-71);
4
ECF No. 231 at 13 (PENTON_VIRGA00008).)
5
6
On August 22, 2008, plaintiff’s grievance was granted at the second level of review. The
appeal was summarized as follows:
7
You claim staff has “impeded” the sending and receiving of your
mail to family and friends outside of prison and that the delays have
been up to three weeks.
8
9
You are requesting the following actions:
1. That you are informed in writing “who” and “why” your mail is being delayed.
2. That you remain “free” from retaliation for a staff complaint you submitted.
3. That your legal and “regular” mail leave the institution without any delays.
10
11
12
(ECF No. 220-4 at 64 (DEF 060); ECF No. 231 at 21 (PENTON_VIRGA000016).) After setting
13
forth various relevant guidelines, including those governing general mail policy and guidelines,
14
the following findings were written: 8
15
The FLR was comprehensive and appropriate and all your issues and
concerns were clearly addressed. The FLR established that all
incoming mail is processed and sent to the facilities within two
working days and all outgoing mail is picked-up by the U.S. Postal
Service the same day it is received in the Mailroom. The FLR notes
if your mail is withheld for any reason, you will be sent a Notification
of Disapproval-Mail/Packages/Publications (CDC-1819) and have
15 working days to decide the disposition of the mail which is
disapproved.
16
17
18
19
20
24
The AI conducted an investigation into the facts, circumstances, and
arguments of your appeal. The AI notes that your Inmate/Parolee
Appeal Form (CDC-602) is cluttered with unnecessary information
and excessive verbiage and that you are attempting to cloud the
appeal issue with a barrage of circumstantial information. The AI
recommends that you state your appeal issues chronologically and
concisely to eliminate any possibility of delays and/or canceled
appeals (refer to DOM Section 54100.7 Appeal Procedure Abuse).
However, the AI continued with the inquiry into your appeal issues.
25
The AI established Mailroom staff are receiving your outgoing mail
21
22
23
26
27
28
8
This memo identifies defendant B. Donahoo as the assigned Appeals Investigator (“AI”), and
bears a signature block for “James Walker, Warden,” including the reference initials “JW:bmd.”
(ECF No. 220-4 at 67.) Rather than a signature, the handwriting appears to read, “4 J[illegible]
J.V.” (Id.)
13
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1
and forwarding your mail, per procedure. The AI notes once the
Mailroom sends the mail out, the responsibility for control of the
mail is given to the United States Postal Service. The AI further
documents the institution’s Mailroom does not have jurisdiction over
the United States Postal Service.
2
3
4
Your request that you be informed in writing when your mail is
delayed is granted, per SAC Operational Procedure #17, which states
in part, “The inmate will be promptly informed in writing of the
reason the mail is being retained via a CDC Form 1819.” Your
request that you are not retaliated against is granted, per CCR 3084.1,
which states in part, “No reprisal shall be taken against an inmate . .
. for filing an appeal.” Your request that your mail leave the
institution without any delays is granted, per SAC Operational
Procedure #17, which states in part, “All inmate mail that does not
require special handling will be processed in/out of the Mailroom
within 40 business hours.”
5
6
7
8
9
10
The AI notes that all staff involved in the processing of your outgoing
mail acted professionally and appropriately and finds no evidence
that staff acted outside of the policy, procedures, and rules set by the
California Department of Corrections and Rehabilitation.
11
12
All submitted documentation and supporting arguments have been
considered, and you have failed to raise any significant new issues or
evidence in appealing this matter to the SLR. After close review of
this matter, it is determined staff have acted appropriately and in
accordance with State law, the CCR, Title 15, and the DOM.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(ECF No. 220-4 at 64-67 (DEF 060-63); ECF No. 231 at 21-24(PENTON_VIRGA00016-19).)
On September 1, 2008, plaintiff sought a Director’s Level Review of Grievance No. 0702453, reporting that his incoming legal mail was withheld by the CSP-SAC mailroom while
plaintiff was out to court for 8 months, and then another 40 days upon his return to state prison.
(See ECF No. 33 at 6, referring to ECF No. 16 at 20.) 9 On October 14, 2008, the Chief of the
Inmate Appeals Branch (“IAB”) responded to plaintiff’s third level of appeal. (ECF No. 29 at
27.) The Chief noted that plaintiff’s appeal was being screened out and returned to plaintiff
because the “appeal was granted at the institutional level. There is no unresolved issue to be
reviewed at the Director’s Level of Review.” (Id.)
9
It appears that no party provided a copy of plaintiff’s request for third level review or the
rejection letter provided by the Chief of the Inmate Appeals Branch. (ECF No. 220-4 at 40-58
(DEF 036-054); ECF No. 220-4 at 64-88 (DEF 060-084); ECF No. 231 at 6-24
(PENTON_VIRGA00001-19).) However, both documents were filed in the court’s record, and
relied upon by the court in addressing a previous motion. (ECF No. 33.) At that time, no party
objected to the validity of such exhibits. Therefore, the undersigned finds that such exhibits are
part of the court record.
14
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1
The Parties’ Arguments re Exhaustion
2
Defendants Walker, Virga, and Donahoo contend that plaintiff’s appeal Log No. SAC-07-
3
2453 related solely to plaintiff’s outgoing personal mail based on plaintiff’s assertion that “my
4
mail has not been leaving the institution/prison until 3 weeks after I’ve giv[e]n it to the prison
5
staff at my cell door to be mailed,” and did not address plaintiff’s incoming mail, legal or
6
personal. (ECF No. 220-1 at 22.) Defendants point to the court’s prior ruling that because
7
plaintiff specifically identified his concern as his outgoing personal correspondence with family
8
and friends, appeal SAC-07-2453 cannot serve to exhaust plaintiff’s claim that defendants
9
subsequently withheld plaintiff’s incoming legal mail while he was out to court, or upon his
10
return. (Id., citing ECF No. 33 at 7, 29.) Because plaintiff’s initial grievance did not put prison
11
officials on notice that plaintiff’s incoming legal mail was being withheld, defendants argue that
12
such grievance cannot suffice to exhaust plaintiff’s claims that such withholding of plaintiff’s
13
legal mail interfered with his access to the courts or stand-alone right to mail.
14
Moreover, to the extent such grievance exhausts any claim, defendants contend that the
15
appeal was submitted on or about September 7, 2007, and thus could not suffice to exhaust any
16
claim based on post-September 7, 2007 conduct. In addition, defendants argue that any attempt
17
to find appeal SAC-07-2453 addressed issues after September 7, 2007, fails because such issues
18
were not properly exhausted under CDCR regulations, as required under Woodford, 548 U.S. at
19
91. (ECF No. 220-1 at 22.) At the time, CDCR regulations required (1) inmates to set forth their
20
issues on the CDC form 602 to describe the problem and action requested, (2) the appeal be filed
21
at the first level of review, and (3) the appeal be submitted within 15 working days from the
22
incident being appealed. (ECF No. 220-1 at 22-23) (citing Cal. Code Regs. tit. 15,
23
§§ 3084.2(a)(11); 3084.5(b); & 3084.6(c) (2007-2008).)
24
25
Plaintiff’s Opposition
Plaintiff contends that defendants “cherry-pick” quotations from plaintiff’s appeal, and
26
argue that defendants’ arguments are flawed for at least three reasons, all of which establish
27
genuine disputes of fact as to the appeal’s scope and precluding summary judgment:
28
1. Plaintiff contends that sufficient language contradicts defendants’ view of the appeal:
15
Case 2:11-cv-00518-TLN-KJN Document 251 Filed 08/12/21 Page 16 of 86
1
For example, in the describe the problem section, plaintiff wrote, “complaint arises out of a mail
2
issue,” Title 15 encourages correspondence between inmates and persons outside CDCR custody;
3
Title 15 requires that the sending and receiving of mail by inmates to be uninhibited; “prison
4
staff members are inhibiting correspondence;” and although mail was delivered to plaintiff’s old
5
cell, plaintiff had not received any rerouted mail since being placed in ad seg. (ECF No. 230 at
6
12.) Further, in the action requested section, plaintiff again refers to mail, stating he wants to be
7
informed why his mail is being withheld and by whom, and “to have all his mail, legal and
8
regular, leave the institution as set forth in the plan of operation.” (Id.)
9
Plaintiff’s appeal to the first level and the first level response by defendant Johnson
10
supports plaintiff’s view of the appeal because each addressed both incoming and outgoing mail.
11
(Id.) Plaintiff requested written notice when his mail is being withheld; the summary of appeal
12
noted plaintiff grieved that his “mail is being withheld by mailroom staff,” and asked for such
13
written notice when his “mail is being held;” and the summary of investigation noted “all
14
incoming mail is processed and sent to facilities within two working days. For example, mail
15
received in the Institution on Monday is processed and forwarded to the Facilities on Tuesday.”
16
(ECF No. 230 at 12-13.)
17
Plaintiff attributes the second level review to defendants Donahoo, Virga, and Walker,
18
arguing that Donahoo investigated and wrote the second level response, and defendant Virga
19
signed the response on behalf of Walker. (ECF No. 230 at 13.) Plaintiff argues that the second
20
level response also supports plaintiff’s position: The response confirmed that plaintiff claimed
21
“staff has ‘impeded’ the sending and receiving of [plaintiff’s] mail to family and friends outside
22
of prison and that the delays have been up to three weeks;” described plaintiff’s request as
23
seeking to be “informed in writing ‘who’ and ‘why’ [his] mail is delayed,” and that his “legal
24
and ‘regular’ mail leave the institution without any delays;” and confirmed all incoming mail is
25
processed and sent to the facilities within two working days, and all outgoing mail is picked up by
26
the U.S. Postal Service the same day it is received in the Mailroom.” (ECF No. 230 at 13.)
27
28
Plaintiff argues that both plaintiff’s and defendants’ statements contained in appeal Log
No. SAC-07-2453 contradict defendants’ limited interpretation, and creates genuine issues of fact
16
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1
2
as to exhaustion.
2. Plaintiff contends that evidence obtained since the court’s 2012 review of appeal Log
3
No. SAC-07-2453 warrants a fresh look into the scope of such appeal and contradicts defendants’
4
assertions. (ECF No. 230 at 13, citing ECF No. 33 at 7.) Defendant Johnson testified that during
5
his face to face interview with plaintiff about appeal Log No. SAC-07-2453, “the only thing
6
[plaintiff] was saying was he couldn’t -- he hadn’t gotten his mail.” (ECF No. 230 at 13, citing
7
ECF No. 231 at 30 (Johnson Dep. at 179.) Defendants Virga and Walker “both testified that
8
during Johnson’s first level investigation of [plaintiff’s] appeal, Johnson should have discovered
9
that [plaintiff’s] incoming legal mail had already been withheld in the CSP-SAC mailroom.”
10
(ECF No. 230 at 13-14.) In addition, plaintiff testified that appeal Log No. SAC-07-2453 related
11
to “both legal and regular mail, going and coming.” (ECF No. 230 at 14, citing ECF No. 231 at
12
101, 103 (Pl.’s Dep. at 71, 81).)
13
3. Finally, plaintiff contends that defendants’ position that appeal Log No. SAC-07-2453
14
could not serve to exhaust any incident occurring after September 7, 2007, is unavailing in light
15
of Ninth Circuit authority reasoning that “where a prisoner obtains a remedy or decision in
16
regards to an inmate appeal, it is not the prisoner’s responsibility to ensure that prison officials
17
comply with that remedy or decision,” and another Ninth Circuit case quoting, “A prisoner who
18
has not received promised relief is not required to file a new grievance where doing so may result
19
in a never-ending cycle of exhaustion.” (ECF No. 230 at 14) (citing Hawthorne v. Mendoza-
20
Power, 447 F. App’x 839 (9th Cir. 2011) (mem.); Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir.
21
2010), (quoting Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004)).) Plaintiff argues that the
22
first level response partially granted plaintiff’s appeal Log No. SAC-07-2453, advising plaintiff
23
he would be notified if his mail is withheld. Moreover, after plaintiff returned from out to court
24
and grieved that his “correspondence is being impeded by prison staff,” his appeal was granted by
25
defendants Donahoo and Virga (on behalf of Walker). (ECF No. 230 at 14.) While the appeal
26
was pending, plaintiff received all of his withheld mail on July 29, 2008, 40 days after he returned
27
from out to court, and almost two weeks after appealing defendant Johnson’s first level response.
28
Plaintiff received no notice that his mail was withheld. Plaintiff contends that this evidence
17
Case 2:11-cv-00518-TLN-KJN Document 251 Filed 08/12/21 Page 18 of 86
1
demonstrates that the court should find plaintiff sufficiently exhausted plaintiff’s right to court
2
and access to the courts claim against all of the defendants. Or, in the alternative, that genuine
3
issues of material fact as to the scope of appeal Log No. SAC-07-2453 preclude summary
4
judgment. (ECF No. 230 at 14.)
5
6
Defendants’ Reply
Defendants contend that the appeal speaks for itself and supports the court’s prior
7
conclusion that appeal Log No. SAC-07-2453 only related to outgoing personal mail and was
8
“insufficient to put prison authorities on notice that plaintiff was having difficulty receiving
9
incoming legal mail.” (ECF No. 236 at 2, quoting ECF No. 33 at 7:13-20, adopted ECF No. 40.)
10
Defendants argue that plaintiff’s speculative comments concerning deposition testimony during
11
adverse questioning ten years after the incident “are immaterial and do not supplant the Court’s
12
legal analysis.” (ECF No. 236 at 2.) First, defendant Johnson’s deposition testimony makes clear
13
that he does not quite recall the interview; he could not recall when the interview took place or
14
what he asked plaintiff. In any event, Johnson’s testimony was: “I think the only thing that he
15
was saying was he couldn’t -- he hadn’t gotten his mail.” (Id., citing ECF No. 230-1 at 30
16
(Johnson Dep. at 179.) Second, plaintiff’s statements during the appeal interview could not
17
properly expand the scope of the appeal, citing Griffin, 557 F.3d at 1120, and other district court
18
cases. (ECF No. 236 at 2-3.) In addition, even if defendant Johnson were aware of incoming
19
mail issues, the documents that form the basis of plaintiff’s access to courts claim would not have
20
arrived by December 31, 2007, the date of Johnson’s first level review. (ECF No. 236 at 3.)
21
Nevertheless, defendants reiterate that appeal Log No. SAC-07-2453 itself makes clear
22
that it does not relate to incoming mail: “no mail has been leaving the institution/prison until 3
23
weeks after. . .,” and “prison staff are holding my mail 3 weeks without delivering it to the U.S.
24
postal service.” (ECF No 236 at 3, citations omitted.) Plaintiff’s appeal to the second level states
25
he is “still dissatisfied with the response as the included summary contend[s] I’ve made the
26
complaint that my mail is being withheld by mail room staff! I never said that. . . .” (ECF No.
27
236 at 3.) The second level appeal response summary restates the requested actions: “1. That
28
you are informed in writing who and why your mail is being delayed… 3. That your legal and
18
Case 2:11-cv-00518-TLN-KJN Document 251 Filed 08/12/21 Page 19 of 86
1
regular mail leave the institution without any delays,” and concluded that “mailroom staff are
2
receiving your outgoing mail and forwarding your mail, per procedure…. once the mailroom
3
sends the mail out, the responsibility for control of the mail is given to the United States Postal
4
Service,” and “all staff involved in the processing of your outgoing mail acted professionally. …”
5
(ECF No. 236 at 3 (citations omitted).
6
In addition, as the court previously noted, in his August 5, 2008 grievance concerning
7
legal mail, plaintiff wrote “this grievance presents new issues which is [sic] separate and distinct
8
from the (grievance) in Log No. SAC-07-2453.” (ECF No. 236 at 3, quoting ECF No. 33 at 9:5-
9
12; see also ECF No. 231 at 144.)
10
Defendants contend that in appeal Log No. SAC-07-2453, plaintiff failed to identify any
11
of the issues pled in the operative pleading as required at the first level of review, within fifteen
12
days of the incident, could not have contemplated issues that had not yet taken place, and could
13
not expand the scope of the appeal during the grievance process.
14
Discussion
Law of the case 10
15
Neither party argues that the court should find that the court is required to apply the law of
16
17
the case doctrine to the exhaustion question surrounding appeal Log No. SAC-07-2453.
18
Defendants recognize that the July 5, 2012 findings and recommendations (ECF No. 33),
19
although adopted by the district court (ECF No. 40), addressed plaintiff’s pro se amended
20
complaint, and since that date, plaintiff is represented by counsel who filed a fourth amended
21
complaint and added allegations and other defendants. (ECF No. 220-1 at 21 n.1.) Such changed
22
circumstances warrant revisiting the issue of exhaustion as to appeal Log No. SAC-07-2453.
23
24
25
26
27
28
10
Under the doctrine of the law of the case, “a court will not reexamine an issue previously
decided by the same or higher court in the same case.” Lucas Auto Eng’g, Inc. v.
Bridgestone/Firestone, Inc., 275 F.3d 762, 766 (9th Cir. 2001). The court may exercise its
discretion to depart from the law of the case only if one of these five circumstances is present: (1)
the first decision was clearly erroneous; (2) there has been an intervening change of law; (3) the
evidence is substantially different; (4) other changed circumstances exist; or (5) a manifest
injustice would otherwise result. United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997).
It is an abuse of discretion for a court to depart from the law of the case without one of these five
requisite conditions. Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993).
19
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1
Nevertheless, the parties are not precluded from citing or arguing the court’s reasoning included
2
in the prior findings and recommendations.
3
4
Exhaustion
In 2007 and 2008, inmates in CDCR custody were not required to specifically name
5
defendants; rather, they simply needed to set forth sufficient facts to put prison staff on notice of
6
the problem. In 2009, the Ninth Circuit confirmed that “[t]he primary purpose of a grievance is to
7
alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation.”
8
Griffin, 557 F.3d at 1120 (citation omitted). “[W]hen a prison’s grievance procedures are silent
9
or incomplete as to factual specificity, ‘a grievance suffices if it alerts the prison to the nature of
10
the wrong for which redress is sought.’” Griffin, 557 F.3d at 1120 (quoting Strong v. David, 297
11
F.3d 646, 650 (7th Cir. 2002)).
12
First, reading appeal Log No. SAC-07-2453 anew, it appears the court previously viewed
13
plaintiff’s grievance too narrowly. Indeed, even the reviewing officials at three separate levels
14
referred to plaintiff’s incoming and outgoing mail. At the time of plaintiff’s grievance, he was
15
not required to write his grievance like a complaint with an eye toward litigation, or include legal
16
terminology, but simply to include sufficient facts that would alert prison staff to the problem
17
such that efforts could be undertaken to resolve the problem. Initially, plaintiff identifies the
18
problem as a “mail issue.” Although plaintiff focused on the issue that his outgoing
19
correspondence to his family and friends was being unduly delayed, he also added that he had not
20
received any incoming mail since being housed in ad seg, despite mail being delivered to his old
21
cell. Moreover, in his request for action, plaintiff addresses both legal and “regular” mail. Thus,
22
in addition to his general reference to “mail” as the problem issue, plaintiff’s reference to not
23
receiving “any” incoming mail while in ad seg covers both legal and regular incoming mail; his
24
request for action covers both outgoing legal and regular mail. Plaintiff later objected that he did
25
not complain that his mail was “being withheld by mail room staff,” but in his initial grievance he
26
wrote that prison staff were “holding [his] mail both going and coming,” and he wanted to know
27
when his mail was being “held” and by whom. Thus, it was obvious plaintiff did not know who
28
was “holding” his mail. The undersigned does not find that plaintiff’s subsequent objection
20
Case 2:11-cv-00518-TLN-KJN Document 251 Filed 08/12/21 Page 21 of 86
1
changes the nature of his initial grievance.
2
Second, as now argued by plaintiff, his grievance was granted at the second level of
3
review. A prisoner need not “press on to exhaust further levels of review once he has received all
4
‘available’ remedies at an intermediate level of review or has been reliably informed by an
5
administrator that no remedies are available.” Brown v. Valoff, 422 F.3d at 936 (citing Booth,
6
532 U.S. at 736-39). Therefore, an inmate “has no obligation to appeal from a grant of relief, or a
7
partial grant that satisfies him, in order to exhaust his administrative remedies.” Harvey, 605 F.3d
8
at 684-85; see also Finley v. Skolnik, 616 F. App’x 263, 264 (9th Cir. 2015) (reversing dismissal
9
for failure to exhaust); Reece v. Sisto, 536 F. App’x 705, 706 (9th Cir. 2013) (concluding that a
10
fully-granted appeal at the first level was sufficient to exhaust remedies, even when the relief
11
provided was not the exact relief plaintiff requested). 11
Here, although plaintiff attempted to obtain a third level review, such review was screened
12
13
out because plaintiff’s grievance was granted at the second level of review. Thus, this court’s
14
review of plaintiff’s grievances ends at the second level of review because his appeal Log No.
15
SAC-07-2453 was granted at the second level of review on August 22, 2008.
16
Did appeal Log No. SAC-07-2453 Exhaust Mail Issues Beyond September 2007?
17
Plaintiff argues that he was not required to file another appeal concerning the withholding
18
of his legal mail while he was out to court because he had already grieved the withholding of his
19
mail, and the Ninth Circuit has held that in certain circumstances, prisoners are not required to
20
exhaust anew a claim already granted in order to avoid a repeating cycle of exhaustion, citing
21
Hawthorne, 447 F. App’x at 839; Harvey, 605 F.3d at 685, (quoting Abney, 380 F.3d at 669).
22
23
24
25
26
27
28
11
In addressing Reece in the district court, the magistrate judge explained that Reece’s grievance
specifically requested that prison officials supply heat to all dorms. Reece v. Sisto, Case No.
2:10-cv-0203 JAM EFB P (E.D. Cal. Feb. 23, 2012) (ECF No. 35 at 7-8). Although the
grievance was partially granted at the informal level and fully granted at the first level of review,
neither response stated that prison officials would provide heat to all dorms. The responses at
both levels essentially informed Reece that the heating system in his dorm was working properly
and that he was being provided adequate heat.” Id. (ECF No. 35 at 7) (citations omitted). The
magistrate judge held that because Reece had not received a “favorable decision” at either the
informal or first level of review, and further administrative review was available, Reece had not
exhausted his available administrative remedies. Id. at 8. The Ninth Circuit disagreed.
21
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1
The undersigned is persuaded that the continued withholding of plaintiff’s legal and
2
personal mail, both incoming and outgoing, while plaintiff was housed at CSP-SAC was
3
exhausted by appeal Log No. SAC-07-2453. Whether or not appeal Log No. SAC-07-2453
4
governs future incidents of withheld mail turns on whether plaintiff had additional remedies
5
available to him and whether he received satisfactory relief of his complaint. Harvey, 605 F.3d at
6
681.
7
Plaintiff was partially granted relief at the first level of review on December 21, 2007,
8
advising plaintiff that he would be notified if his mail is withheld. Because the appeal was only
9
partially granted, some remedies remained available, and plaintiff properly filed a request for
10
second level review. On August 22, 2008, plaintiff’s request for second level review was granted.
11
Thus, as argued by plaintiff, he was not required to file new appeals concerning the withholding
12
of his mail because appeal Log No. SAC-07-2453 was granted at the second level of review on
13
August 22, 2008. Plaintiff was again informed that he would be “promptly informed in writing of
14
the reason the mail is being retained” as required by SAC Operational Procedure #17, and also
15
confirmed such procedure provides that “All inmate mail that does not require special handling
16
will be processed in/out of the Mailroom within 40 business hours.” (ECF No. 220-4 at 64-67
17
(emphasis added). The undersigned finds that plaintiff’s situation is akin to Harvey, where the
18
prisoner was promised he would be granted a hearing and access to the requested videotape, yet
19
five months later, Harvey had not received either. Id., 605 F.3d at 683, 685. Here, despite being
20
granted relief at both the first and second level reviews and informed that he would receive timely
21
written notice if his mail were withheld, plaintiff’s mail was again withheld for a period of eight
22
months while he was out to court, but also for an additional 40 days after he returned to CSP-
23
SAC. In Harvey, the Ninth Circuit held that the prisoner “exhausted the administrative process
24
when the prison officials purported to grant relief that resolved his . . . grievance to his
25
satisfaction.” Id. at 686. The Ninth Circuit explained:
26
27
28
An inmate has no obligation to appeal from a grant of relief, or a
partial grant that satisfies him, in order to exhaust his administrative
remedies. Nor is it the prisoner’s responsibility to ensure that prison
officials actually provide the relief that they have promised. See
Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004) (“A prisoner
22
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1
2
3
4
5
6
7
who has not received promised relief is not required to file a new
grievance where doing so may result in a never-ending cycle of
exhaustion.”).
. . . Once the prison officials purported to grant relief with which [the
inmate] was satisfied, his exhaustion obligation ended. His
complaint had been resolved, or so he was led to believe, and he was
not required to appeal the favorable decision.
Harvey, 605 F.3d at 685.
While defendants are correct that such appeal would not govern future incidents of mail
8
interference in perpetuity, the undersigned finds that such grievance was sufficient to govern mail
9
issues that occurred at least during the pendency of plaintiff’s appeal, which includes the period
10
legal or personal mail was withheld without notice to plaintiff, while he was out to court for eight
11
months, through at least July 29, 2008, when his withheld mail was delivered to plaintiff, forty
12
days after his return to CSP-SAC. Because the allegedly wrongful withholding of mail for such a
13
lengthy period of time would foreseeably impact plaintiff’s obligations while engaged in conduct
14
protected under the First Amendment, such grievance also exhausts any resulting interference
15
with access to court and mail claims plaintiff incurred during such period.
16
2. Appeal No. SAC 08-1769
17
Documentary Evidence
18
Inmate appeal log no. SAC-08-1769 describes plaintiff’s problem as follows:
19
20
21
22
23
24
25
26
This is a remedial complaint concerning the arbitrary deprivation of
access to the . . . law library, and the inadequacies . . . having a
potentially injurious effect upon appellant’s access to the courts
pursuant to the California Code of Regulation . . . Specifically, on
9-12-07 appellate submitted a request for priority legal user status
(“PLU”) with the necessary document [Ex. B] illustrating that
appellant had a verified deadline date of 9-28-07. The PLU
application seemingly demonstrates that the library technical
assistant (“LTA”) Ms. Bradford approved appellant access 2 days
following its submission. However, the following Wednesday 9-1907, appellant was not called nor could appellant get any officer to
assist him in his dilemma as appellant had been informed that he was
not on the PLU list for that day 9-19-07.
27
(ECF No. 220-4 at 16, 18.) On September 30, 2007, plaintiff wrote that on September 26, 2007,
28
plaintiff’s name was not called; he spoke with Sgt. Cross, who provided for plaintiff’s access to
23
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1
the law library on that day. But despite Sgt. Cross claiming he would also make provision for
2
plaintiff to attend on 9-28-07, plaintiff was not called on 9-28-07. “C/O Morrow was overheard
3
stating that he did not want I/M Penton in the law library.” (ECF No. 220-4 at 18.) Plaintiff
4
noted his belief that staff was impeding plaintiff’s access to the courts in retaliation for the 2-20-
5
07 staff assault. Because plaintiff was denied law library access, he had to gather information
6
from unqualified sources to draft an extension of time to file objections to pending findings and
7
recommendations. (Id.) In addition, plaintiff was prosecuting another civil case and a criminal
8
case. Plaintiff also complained that the two hours a week access to the law library, as well as the
9
paging system, are inadequate, and explained why. (ECF No. 220-4 at 18-19.)
10
In the action requested section, plaintiff sought access to the same computers general
11
population inmates use, and that plaintiff be provided continuous PLU status until plaintiff’s
12
litigation was complete. (ECF No. 220-4 at 16.)
13
On November 6, 2007, appeal log no. SAC-08-1769 was denied by defendant Morrow at
14
the informal level citing “too many issues.” (ECF No. 220-4 at 16.) Morrow noted plaintiff had
15
physical access to the library on August 22 and 31, September 5, 12, and 26, and November 2,
16
2007; informed plaintiff that any paging concerns needed to be addressed to Correctional Officer
17
Dunn; “your other allegations in reference to me are unfounded;” and “your PLU access has been
18
granted when proper forms completed and received.” (ECF No. 220-4 at 16.)
19
Plaintiff sought review at the formal level of review, claiming the response failed to
20
address any of plaintiff’s main concerns. (ECF No. 220-4 at 16.) D. Hamad, Supervisor of
21
Academic Instruction, Education Department, summarized plaintiff’s appeal as follows:
22
23
24
25
26
27
28
You contend that you have been denied access to the courts. You
claim you had approved PLU status, yet were not on the weekly
access list to be escorted to the Library, there was a delay in receiving
materials when you were in the Ad Seg Law Library, you receive
only two hours per week access, staff is often busy with other patrons
and your photocopy request[s] have taken 2-3 days to fill. You
request that staff respond to your requests more quickly, that you
have more than two hours per week of access to the library and that
you have access to the legal computers (purchased with Inmate
Welfare Funds) in the Library.
(ECF No. 220-4 at 28.) Hamad responded that inmates with PLU status receive two consecutive
24
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1
hours of priority access per week, which plaintiff received during September of 2007, and that the
2
paperwork plaintiff submitted confirmed that staff responded to plaintiff’s requests for PLU status
3
and photocopies within five days. (Id.) “The legal computers were purchased by the Office of
4
Correctional Education for use in the libraries and are not available in the Ad Seg Units.” (Id.)
5
Hamad found that staff acted appropriately, and plaintiff’s appeal was partially granted on
6
September 9, 2008. (Id.)
7
In his request for second level review, plaintiff objected that he does not receive
8
photocopies in 2-3 days, and cited one example where he did not receive his photocopies for 7
9
days, and then deprived him of the second copy he needed for the second opposing attorney.
10
Further, plaintiff claimed that the deprivation of library access on September 19, 2007, deprived
11
him of crucial research time given his September 21, 2007 deadline, resulting in the termination
12
of his habeas petition. (ECF No. 220-4 at 23.) On October 20, 2007, plaintiff submitted another
13
PLU request which took 11 days to process, and then only granted plaintiff two hours’ access.
14
(ECF No. 220-4 at 27.) Plaintiff argued that such response failed to meet existing regulations.
15
(Id.)
16
17
18
19
20
21
22
23
24
25
26
27
28
Former defendant Pool was assigned to investigate plaintiff’s second level review. (ECF
No. 220-4 at 29.) Plaintiff’s appeal was summarized as:
during the month of September 2007, you were denied access to the
courts. You claim that you had approved Priority Legal Use (PLU)
status; however, were not on the weekly access list to be escorted to
the Library from Administrative Segregation (AD-SEG). You claim
there was a delay in receiving requested materials when you were in
the AD-SEG Law Library. You claim you were only allowed two
hours per week access to the Law Library. You claim staff is often
busy with other patrons. You claim your photocopy request[s] have
taken 2-3 days to fill.
(ECF No. 220-4 at 29.) The actions plaintiff requested were set forth as:
1. That AD-SEG inmates be provided access to the same computers
used by general population inmates.
2. That you be allowed to continue PLU access until your litigation
process has been fully exhausted in the State and Federal Court.
3. That you be given more access to the Law Library and service by
the staff in a more timely manner.
25
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1
2
(Id.) On November 14, 2008, the reviewer partially granted plaintiff’s request to have his PLU
3
status recognized until his litigation was completed, “based on it is [plaintiff’s] responsibility to
4
submit all required documentation” as required by the governing rules and regulations. Plaintiff’s
5
request to use the legal computers purchased by the Office of Correctional Education was denied
6
because unavailable to AD-SEG inmates. Plaintiff’s request to have more law library access and
7
assistance in a more timely manner was partially granted in that plaintiff would receive “timely
8
staff assistance/service in accordance to the guidelines prescribed [as] expeditiously as possible,
9
however [plaintiff’s] access to the Law Library will remain the same as any other inmate” on
10
PLU status.” (ECF No. 220-4 at 30.) Defendant Virga signed the 602 appeal form as the second
11
level of review was completed on November 17, 2008. (ECF No. 220-4 at 23.)
12
On December 3, 2008, plaintiff sought third level review, claiming he had been denied
13
meaningful access to the law library, and such deprivation subsequently deprived him of access to
14
the courts. (Id.)
15
On February 8, 2009, plaintiff’s third level review was denied by nonparty N. Grannis,
16
Chief, Inmate Appeals Branch. (ECF No. 231 at 120.) Grannis summarized plaintiff’s argument
17
as follows:
18
19
20
21
22
the staff at [CSP-SAC] are inappropriately failing to provide the
inmate population a sufficient number of research computers in the
Administrative Segregation Unit (ASU) law library. [Plaintiff]
asserts that there are not any computers to conduct research.
Additionally, [plaintiff] contends that his request for [PLU] status
was not responded to in a timely manner and he was provided
[in]sufficient access to meet his court deadlines. [Plaintiff] requests
that the [CSP-SAC] provide computers in the ASU law library and
that he be granted continued PLU status.
23
(ECF No. 231 at 141.) After summarizing the second level review decision, Grannis made the
24
following findings:
25
26
27
28
the [CSP-SAC] reviewers advised [plaintiff] that computers would
not be installed in the ASU due to security concerns. . . . [CSP-SAC]
provides a law library for inmate access and . . . additional assistance
may be provided dependent upon the need. . . . [P]ursuant to the
California Code of Regulations, Title 15, Section (CCR) 3120, “Each
warden shall ensure a library, law library and related services are
maintained for the benefit of inmates in their facility. . . .A library
26
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1
access schedule shall be approved by the warden and posted
throughout the facility.” Review of this matter reflects that the
institution does have an approved procedure for ensuring that the
library is updated and is adhering to that procedure. [Plaintiff] has
not provided any evidence that his ability to prepare legal documents
has been hindered because of the [CSP-SAC] library procedures or
available resources. . . . [T]he [CSP-SAC], and CDCR, are operating
at a time of fiscal crisis and is making a good faith effort to ensure
that the [CSP-SAC] ASU law library provides sufficient resources
for the inmate population access to the courts. . . . [Plaintiff] was
advised of the procedures to be granted PLU status and it is his
responsibility to provide the necessary court documents. Therefore,
based upon the evidence presented it is determined that the actions
taken by staff are consistent with the rules cited here.
2
3
4
5
6
7
8
9
(ECF No. 231 at 141.)
It is undisputed that appeal log no. SAC-08-1769 exhausts plaintiff’s claims against
10
11
defendants Bradford and Morrow for allegedly denying plaintiff access to the prison law library
12
prior to September 30, 2007. (ECF Nos. 220-1 at 23; 230 at 15.) The issue is whether such
13
appeal exhausts plaintiff’s claims occurring thereafter.
14
The Parties’ Arguments re Exhaustion
Defendants’ Position
15
Defendants argue that plaintiff’s appeal log no. SAC-08-1769 should be limited to
16
17
plaintiff’s claims arising prior to September 30, 2007, because such appeal complains about the
18
CSP-SAC law library, computers, and a PLU application from 2007. (ECF No. 220-1 at 23.)
19
Defendants contend that plaintiff’s claim that defendant Bradford prevented or interfered with
20
plaintiff’s law library access after plaintiff returned from out to court in 2008, cannot be
21
exhausted by appeal log no. SAC-08-1769 because such alleged conduct occurred after plaintiff
22
submitted this appeal. (ECF No. 220-1 at 23) (citing see Griffin, 557 F.3d at 1120; Avery v. Elia,
23
2012 WL 6738312, at *5 (E.D. Cal. Dec. 28, 2012) (rejecting prisoner’s argument that a
24
grievance prospectively exhausts related issues that arose later).) Defendants argue that appeal
25
log no. SAC-08-1769 only exhausts a claim that plaintiff was not called to the law library in
26
September of 2007, after his request for PLU status was approved. (ECF No. 220-1 at 23.)
27
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28
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1
Plaintiff’s Opposition
2
After plaintiff returned from out to court in June of 2008, plaintiff appealed defendant
3
Morrow’s November 6, 2007 denial of plaintiff’s appeal log no. SAC-08-1769 at the informal
4
level. Plaintiff contends that he pursued his claims through the third level of review because he
5
was still “deprived of meaningful access to the law library,” “which denied him access to the
6
courts.” (ECF No. 230 at 15.) Thus, plaintiff argues that from 2007 through 2009, he pursued
7
appeal log no. SAC-08-1769 through the highest level of review to remedy the deprivation of his
8
access to litigate his habeas case. (Id.) Contrary to defendants’ argument that the appeal should
9
only address 2007 claims, plaintiff contends that plaintiff’s allegations against Bradford
10
concerning her improper denial of law library access in 2008 is directly related to appeal log no.
11
SAC-08-1769. Plaintiff points out that the relief sought was being granted continuous PLU
12
access until his litigation was completed. (ECF No. 230 at 16.) Plaintiff maintains that had he
13
filed a new grievance in August 2008 after Bradford denied plaintiff PLU status in response to
14
plaintiff’s request for PLU status to prepare a motion to reopen his habeas case, such grievance
15
would have duplicated appeal log no. SAC-08-1769 in which he sought additional law library
16
access to litigate his habeas case. (ECF No. 230 at 16) (citing Harvey, 605 F.3d at 685 (citing
17
Abney, 380 F.3d at 669).)
18
Plaintiff argues that Griffin supports plaintiff’s position, because “a grievance suffices if it
19
alerts the prison to the nature of the wrong for which redress is sought.” Id., 557 F.3d at 1120.
20
At a minimum, plaintiff contends that there are genuine disputes of material fact as to whether
21
appeal log no. SAC-08-1769, which plaintiff pursued from 2007 to 2009, notified prison officials
22
that plaintiff’s difficulties accessing the law library to work on his habeas case continued in 2008
23
after he returned from out to court. (ECF No. 230 at 16.)
24
Plaintiff also distinguishes Avery from the instant case. (ECF No. 230 at 16, discussing
25
Avery, 2012 WL 6738312.) In Avery, the district court “examined two distinct harms and found
26
no exhaustion where the relief requested in the first inmate appeal had already been fully granted
27
before the second harm occurred.” (ECF No. 230 at 16.) Specifically, the court found that a
28
prison official’s second revocation of an inmate’s diet card was distinct from the first denial
28
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1
because Avery’s diet card was restored and the first appeal granted prior to the second revocation
2
of the diet card. Plaintiff contends that the instant action differs because appeal log no. SAC-08-
3
1769 remained pending through February 2009, long after Bradford deprived plaintiff library
4
access in 2008. Plaintiff argues that had plaintiff filed a second appeal challenging Bradford’s
5
deprivation, it would have been duplicative of appeal log no. SAC-08-1769.
6
7
Defendants’ Reply
In reply, defendants reiterate that Bradford’s alleged deprivation could not be exhausted
8
by appeal log no. SAC-08-1769 because the alleged act occurred in 2008, long after the 2007
9
allegations contained in the initial grievance, and in violation of the regulation requiring that the
10
grievance be filed 15 working days after the alleged misconduct. Defendants point out that
11
plaintiff’s initial grievance focused on the deprivations in 2007, as did the first and second levels
12
of review. Although the second level review noted plaintiff requested continued PLU access, it
13
reminded plaintiff that it was his responsibility to submit the required documents. (ECF No. 230
14
at 4.) Accordingly, defendants argue that appeal log no. SAC-08-1769 was not sufficient to put
15
prison officials on notice that despite having access to the law library six times between August
16
and November of 2007, plaintiff would later have problems accessing the law library in August
17
2008, for entirely different reasons. (ECF No. 236 at 4.) Defendants contend that to find
18
otherwise would “absolve prisoners from complying with the mandatory grievance process as
19
long as they had submitted an appeal on a similar subject at some point in the past.” (Id.)
20
Discussion
21
The undersigned is persuaded that appeal log no. SAC-08-1769 was not sufficient to
22
exhaust plaintiff’s claim that defendant Bradford deprived plaintiff of access to the law library in
23
2008. In the fourth amended complaint, plaintiff alleges that defendant Bradford wrongfully
24
denied plaintiff’s August 11, 2008 request for PLU status, “on the basis that plaintiff failed to
25
attach a court order with an explicit deadline.” (ECF No. 104 at 10.) Plaintiff contends that the
26
PLU request form allowed prisoners to seek PLU status by citing a rule, and plaintiff cited Rule
27
60(b) of the Federal Rules of Civil Procedure. (ECF No. 104 at 10.)
28
While appeal log no. SAC-08-1769 put prison officials on notice that plaintiff experienced
29
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1
numerous difficulties accessing the law library in 2007, the grievance did not allege that plaintiff
2
had been wrongfully denied PLU access. Rather, it claimed, inter alia, that he was granted PLU
3
status, yet was not called to the library, and complained that the two-hour limit was insufficient.
4
Thus, appeal log no. SAC-08-1769 did not put prison officials on notice that plaintiff’s request for
5
PLU status was wrongfully denied, thus preventing him from accessing the law library in August
6
of 2008. In addition, prison officials reviewing appeal log no. SAC-08-1769 would have no way
7
of knowing that the habeas action referred to in appeal log no. SAC-08-1769 was still pending in
8
2008; indeed, it had been terminated, which was why plaintiff sought to prepare a Rule 60(b)
9
motion in 2008. Also, the appeals process confirmed that plaintiff would have to continue
10
submitting PLU requests like other inmates. Because prison regulations required inmates to
11
submit requests for PLU access, plaintiff was required to grieve a particular alleged wrongful
12
denial of such a request to put prison officials on notice of such problem. Just because plaintiff
13
requested continuous PLU status does not persuade the court otherwise. Accordingly, defendant
14
Bradford is entitled to summary judgment on plaintiff’s claim that Bradford wrongfully denied
15
plaintiff PLU status in 2008 because plaintiff failed to exhaust administrative remedies.
3. August 5, 2008 Screened Out Appeal
16
17
The Documentary Evidence
18
On August 5, 2008, plaintiff submitted an inmate appeal claiming:
19
On July 29, 2008, I received (via A.S.U. legal mail officer) C/O
Gaddi (9) pieces of legal mail dating as far back as Nov. 9th, 2007,
thru April 28th, 2008, without any explanation, justification, nor
reason given, as to why my legal mail had been withheld for over (8)
months. . . as a direct product of the withholding of said legal mail,
my habeas petition has been (terminated), and I defaulted on my
opportunity for (oral argument) in my civil appeal resulting from my
inability to comply with the notifications and orders contained
therein, the above-mentioned legal mail. . . NOTE: this grievance
presents new issues which is [sic] separate, and distinct from the
(grievance) in Log No. 07-02453.
20
21
22
23
24
25
(ECF No. 16 at 34; ECT No. 231 at 144.) Plaintiff sought an advance for the cost of attorney’s
26
fees to re-litigate the cases impeded by the withheld mail, as well as compensatory and punitive
27
damages. (Id.) On August 18, 2008, plaintiff received an informal level response, which stated:
28
////
30
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1
2
3
[t]he reason you received the legal mail dating back to 2007 is
because the mailroom was holding it while you were out to court
(federal). Once you returned you requested all your mail. For the
reasons stated above and the reasons your mail was held, your appeal
is denied.
4
(ECF No. 16 at 34; ECF No. 231 at 144.) On September 2, 2008, plaintiff noted such response
5
was returned to plaintiff 15 days after the August 18, 2008 response date, the response was
6
inadequate, and sought a formal level review. (Id.) The subsequent responses, screen-outs and
7
resubmissions are not relevant here.
8
9
To fall within the noted exception to exhaustion, a prisoner must show he attempted to
exhaust his administrative remedies, but was thwarted by improper screening. Sapp, 623 F.3d at
10
823. Specifically, the inmate must establish (1) that he actually filed a grievance or grievances
11
that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the
12
claim he seeks to pursue in federal court, and (2) that prison officials screened his grievance or
13
grievances for reasons inconsistent with or unsupported by applicable regulations. Id. at 823-24.
14
Discussion
15
Defendants argue that even if the court considers the August 5, 2008 screened out appeal,
16
such appeal cannot serve to exhaust administrative remedies against defendants Walker, Virga,
17
Donahoo, Gaddi, or any claims for incoming personal mail. (ECF No. 220-1 at 24.)
18
Law of the Case
19
“[A] court is generally precluded from reconsidering an issue that has already been
20
decided by the same court, or a higher court in the identical case.” United States v. Alexander,
21
106 F.3d 874, 876 (9th Cir. 1997) (internal quotations and citation omitted).
22
As pointed out by plaintiff, the court already determined that plaintiff’s August 5, 2008
23
grievance was improperly screened out, and therefore plaintiff’s administrative remedies were not
24
available. (ECF No. 230 at 17.) In 2012, defendants Donahoo, Johnson, Pool, Virga, and Walker
25
filed a motion to dismiss the August 5, 2008 screened out appeal, alleging plaintiff failed to
26
properly exhaust his administrative remedies. (ECF No. 27.) In detailed findings, the court found
27
that the August 5, 2008 appeal contained factual allegations supporting plaintiff’s claims in
28
federal court, was improperly screened out, and that plaintiff was not required to use the phrase
31
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1
“access to the courts,” and such grievance was “sufficient to put prison officials on notice of
2
plaintiff’s claims concerning the withheld incoming legal mail and the resulting interference with
3
plaintiff’s access to the courts,” and “recommended that defendants’ motion to dismiss plaintiff’s
4
claims as unexhausted should be denied.” (ECF No. 33 at 11-12, 15 (emphasis added).) Such
5
findings and recommendations were adopted in full by the district court on September 13, 2012.
6
(ECF No. 40.) Accordingly, such findings are law of the case, and the efforts of defendants
7
Donahoo, Virga, and Walker to revisit the exhaustion of such appeal are unavailing. See
8
Gonzales v. Arizona, 677 F.3d 383, 390 n.4 (9th Cir. 2012) (“Under the law of the case doctrine,
9
a court will generally refuse to consider an issue that has already been decided by the same court
10
or a higher court in the same case.”)
11
New Arguments
12
Defendants now argue that the August 5, 2008 grievance would not have put prison
13
officials on notice of the involvement of prison staff other than the mailroom or mail delivery
14
staff, thus failing the first prong of Sapp as to defendants Walker, Virga, Donahoo and Gaddi.
15
(ECF No. 220-1 at 24.) But in 2008, plaintiff was not required to set forth the names of the prison
16
staff involved, and because plaintiff had received no notice that his mail was being withheld, he
17
had no idea who decided to withhold his legal mail, or why the mail was withheld; due to such
18
lack of information, he was unable to determine whether the legal mail was withheld due to
19
prison policy or a violation of prison policy. Indeed, it was not until August 18, 2008, that
20
plaintiff was informed that his legal mail was held while he was out to court. Here, unlike the
21
cases relied upon by defendants, the problem grieved was concrete: plaintiff’s legal mail was
22
withheld while he was out to court. There were no other specific facts he could allege absent
23
more information he did not have. This court cannot find that plaintiff was required to speculate
24
whether supervisors or other prison staff might have been involved in the wrongful withholding
25
of his legal mail. Therefore, the court finds there are no new grounds to support setting aside the
26
prior finding that plaintiff’s August 5, 2008 appeal was improperly screened out, and that such
27
appeal would have exhausted plaintiff’s claims against defendants Walker, Virga, and Donahoo.
28
Alexander, 106 F.3d at 876 (court may exercise its discretion to depart from the law of the case
32
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1
only if one of these five circumstances is present: (1) the first decision was clearly erroneous; (2)
2
there has been an intervening change of law; (3) the evidence is substantially different; (4) other
3
changed circumstances exist; or (5) a manifest injustice would otherwise result.).
4
Although defendant Gaddi was not a party to the earlier motion to dismiss, defendant
5
Gaddi was named in the appeal. Defendants’ argument that the August 5, 2008 appeal failed to
6
exhaust plaintiff’s claims against defendant Gaddi is also unavailing. Plaintiff did not know who
7
was responsible for the deprivation of his legal mail. Although defendant Gaddi was the ASU
8
legal mail officer who did not work in the mail room, it was defendant Gaddi who delivered the
9
withheld legal mail. Thus, it was plausible that defendant Gaddi could have been involved in the
10
withholding of plaintiff’s legal mail. The withholding of plaintiff’s legal mail is the alleged
11
misconduct, and by naming defendant Gaddi, such connection is implied, particularly where
12
Gaddi offered no “explanation, justification [or] reason” for the delayed delivery of plaintiff’s
13
legal mail. (ECF No. 231 at 144.) Thus, the undersigned finds that the April 5, 2008 screened
14
out grievance was sufficient to exhaust plaintiff’s claim as to defendant Gaddi.
15
That said, the appeal specifically grieved the withholding of plaintiff’s legal mail and the
16
injuries he sustained therefrom. There was no mention of personal correspondence, or a general
17
challenge that all of his mail was withheld while he was out to court. Plaintiff’s August 5, 2008
18
grievance did not exhaust plaintiff’s claim as to personal mail.
19
Thus, the April 5, 2008 improperly screened out grievance, challenging the withholding of
20
plaintiff’s legal mail, was sufficient to exhaust plaintiff’s claims as to defendants Walker, Virga,
21
and Donahoo, as the court previously found on July 5, 2012, and adopted by the district court on
22
September 13, 2012. (ECF Nos. 33, 40.) Also, as to defendant Gaddi, such appeal was sufficient
23
to exhaust plaintiff’s claim that his legal mail was wrongfully withheld. Therefore, defendants
24
Walker, Virga, Donahoo, and Gaddi are not entitled to summary judgment based on the alleged
25
failure to exhaust administrative remedies in connection with the August 5, 2008 appeal. See
26
Ross, 136 S. Ct. at 1859 (“[A]n inmate is required to exhaust those, but only those, grievance
27
procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’”)
28
(quoting Booth, 532 U.S. at 731).
33
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1
4. September 11, 2008 Screened Out Appeal
2
Defendants contend that plaintiff failed to exhaust his retaliation claim against defendant
3
Salas through the third level of review, and that even if the court finds administrative remedies
4
were unavailable, the September 11, 2008 grievance would not exhaust such retaliation claim.
5
Plaintiff counters that prison officials thwarted his ability to exhaust such claim by improperly
6
screening out his appeal, and that the grievance is adequate to demonstrate exhaustion.
7
The Documentary Evidence
8
On September 11, 2008, plaintiff submitted an inmate appeal regarding a 2008 annual
9
10
package. (ECF No. 220-4 at 168 (DEF 164); ECF No. 231 at 181 (PENTON_SALAS00003).)
Plaintiff wrote:
11
This is a remedial 602 in an effort to prevent ad seg property staff
from sending my annual package back to the sender. . . . on
September 8, 2008, [plaintiff] received notice from [defendant] Salas
informing [plaintiff] that his package was being returned to vendor
because it was received after ad seg placement. The fact is . . .
[plaintiff has] been assigned to work privilege Group “D” for
approximately 14 months making [plaintiff] eligible to receive an
annual package.
12
13
14
15
16
(Id.) As action, plaintiff requested that he be allowed his annual package, and if it had already
17
been returned to the vendor, the purchaser be reimbursed for shipping, handling and re-stocking
18
fees. (Id.) Defendant Salas responded at the informal level:
19
21
My records indicate that your D-status started 6-19-08. However, it
was determined to be incorrect. Therefore your annual package was
unintentionally sent back to the vendor based on my records. You
are eligible to receive an annual package. At this point of your
appeal, I am unable to determine reimbursement for charges.
22
(Id.) The appeal was returned to plaintiff on September 23, 2008. (Id.) Plaintiff sought a formal
23
level review, writing:
20
24
There seems to be a discrepancy concerning the actual date the
package was received at R&R and the date it was returned to the
vendor. I respectfully request that a record of those events be
attached to this 602 as documented proof establishing C/O Salas’
inadvertence.
25
26
27
(Id.) The appeal was submitted on October 5, 2008. (Id.)
28
////
34
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1
2
The second page of this appeal form is blank; no first level response or first level screen
out is provided. 12
3
Plaintiff received two subsequent screening letters from former defendant Pool, marked
4
2nd and 3rd, dated October 14, 2008, and October 31, 2008, noting plaintiff’s failure to re-attach
5
all previous screening forms. (ECF No. 220-4 at 160, 162 (DEF 156, 158.) Pool provided a
6
declaration explaining that all screening letters (CDC 695’s) informed plaintiff that he must re-
7
attach all previous screening letters relative to the September 11, 2008 appeal before the appeal
8
could be processed further. (ECF No. 220-4 at 143.)
9
Standards
10
The PLRA requires that an inmate exhaust only those administrative remedies “as
11
are available.” 42 U.S.C. § 1997e(a). The Ninth Circuit concluded that the PLRA does not
12
require exhaustion when circumstances render administrative remedies “effectively unavailable.”
13
Sapp, 623 F.3d at 822 (citing Nunez, 591 F.3d at 1226). In Sapp, the Ninth Circuit held that
14
“improper screening of an inmate’s administrative grievances renders administrative remedies
15
‘effectively unavailable’ such that exhaustion is not required under the PLRA.” Sapp, 623 F.3d at
16
823. As the Ninth Circuit noted, if prison officials screen out an inmate’s appeals for improper
17
reasons, the inmate cannot pursue the necessary sequence of appeals, and, as a result, his
18
administrative remedies become unavailable. Id.
To fall within the noted exception to exhaustion, a prisoner must show he attempted to
19
20
exhaust his administrative remedies but was thwarted by improper screening. Id. Specifically,
21
the inmate must establish (1) that he actually filed a grievance or grievances that, if pursued
22
through all levels of administrative appeals, would have sufficed to exhaust the claim he seeks to
23
pursue in federal court, and (2) that prison officials screened his grievance or grievances for
24
reasons inconsistent with or unsupported by applicable regulations. Id. at 823-24.
25
////
26
27
28
12
Pool declares the appeal was screened out at the first level of review, but no copy of such first
level screening was provided. (ECF No. 220-4 at 143 (Pool Decl.) (DEF 139); ECF No. 220-4 at
155-57 (DEF 151-53).)
35
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1
First Prong of Sapp
2
Based on the evidence presented, the undersigned finds that plaintiff failed to properly
3
exhaust his administrative remedies as to defendant Salas prior to filing suit. The Ninth Circuit
4
has held that:
5
A grievance need not include legal terminology or legal theories
unless they are in some way needed to provide notice of the harm
being grieved. A grievance also need not contain every fact
necessary to prove each element of an eventual legal claim. The
primary purpose of a grievance is to alert the prison to a problem and
facilitate its resolution, not to lay groundwork for litigation.
6
7
8
9
Griffin, 557 F.3d at 1120. See also McCollum v. Cal. Dep’t of Corrs. & Rehab., 647 F.3d 870,
10
876 (9th Cir. 2011) (“While an inmate need not articulate a precise legal theory, ‘a grievance
11
suffices if it alerts the prison to the nature of the wrong for which redress is sought.’”). 13
12
Here, it is undisputed that plaintiff’s September 11, 2008 appeal was the only appeal
13
addressing defendant Salas’ wrongful return of plaintiff’s annual package. As argued by
14
defendants, and discussed below, the September 11, 2008 appeal did not include sufficient facts
15
to put prison officials on notice of plaintiff’s constitutional claims against defendant Salas.
16
Plaintiff argues that he was not required to include legal terminology such as “retaliation” in the
17
grievance, because the immediate problem was Salas’ wrongful return of the annual package,
18
which plaintiff believed to be in retaliation for his attempts to use the inmate appeals system
19
regarding his withheld mail, and not mere inadvertence as Salas claimed. (ECF No. 230 at 23.)
20
Plaintiff points to his request for first level review, where plaintiff asked for proof of the alleged
21
inadvertence. Plaintiff relies solely on Griffin, 557 F.3d at 1120. (ECF No. 230 at 23.)
22
In this appeal, plaintiff objected to the return of his annual package on the basis that he
23
was entitled to receive it under the governing prison regulation. Plaintiff did not mention
24
retaliation or retaliatory conduct, or even suggest misconduct was at issue. See Jennings v.
25
26
27
28
13
In McCollum, the Ninth Circuit found that a claim of religious discrimination predicated on
the CDCR’s failure to provide Wiccan chaplains was not exhausted by grievances addressing
other problems encountered by Wiccan inmates, and affirmed the district court’s finding that
challenge to paid-chaplaincy policy was unexhausted because grievances did not complain of lack
of chaplaincy. Id. at 876-77.
36
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1
Huizar, 2007 WL 2081200, at *4 (D. Ariz. July 19, 2007) (holding Jennings sufficiently
2
exhausted retaliation claim where he wrote in his grievance that the defendant changed Jennings’
3
work assignment for an “improper purpose,” thereby “afford[ing] corrections officials time and
4
opportunity to address [the retaliation claim] internally.”) Here, plaintiff did not set forth any
5
facts about any alleged “improper purpose,” his constitutionally protected conduct, i.e., filing an
6
inmate grievance about the withholding of his mail, or otherwise. Plaintiff did not include any
7
facts suggesting an ill or questionable motive on the part of defendant Salas. Moreover, asking
8
for proof of the alleged inadvertence does not suggest that the property was returned due to
9
plaintiff’s protected conduct. While plaintiff is correct that inmates need not set forth legal
10
terminology in their grievances, they are required to set forth sufficient facts to put prison
11
officials on notice of the alleged misconduct. See, e.g., Walton v. Hixson, 2011 WL 6002919, at
12
*2 (E.D. Cal. Nov. 30, 2011), adopted Jan. 3, 2012) (complaining about prison official’s
13
interference with Walton’s praying was not sufficient to alert prison officials to Walton’s claim
14
that such interference was in retaliation for plaintiff submitting a grievance against the official);
15
Martinez v. Adams, 2010 WL 3912359 at *5 (E.D. Cal. Oct. 5, 2010) (finding a failure to exhaust
16
a retaliation claim because plaintiff’s inmate grievances did not “mention retaliation or set forth
17
facts that would alert a prison official to retaliatory conduct for protected conduct”); Trevino v.
18
McBride, 2010 WL 2089660 at *3 (E.D. Cal. May 21, 2010) (finding Trevino failed to
19
adequately alert prison officials to the problem of retaliatory acts by correctional officers because
20
there was no “linkage mentioned between previously filed lawsuits and the defendants’
21
deprivation of his property.”); Thomas v. Sheppard-Brooks, 2009 WL 3365872 at *5 (E.D. Cal.
22
Oct. 16, 2009) (finding Thomas’ grievance “did not provide enough information in his grievance
23
to allow prison officials to take appropriate responsive measures because Thomas failed to notify
24
prison officials that his cell housing without light was retaliatory.).
25
Here, although the grievance put prison officials on notice of the wrongful return of the
26
package, plaintiff included no facts concerning his theory that Salas did so because plaintiff had
27
filed an inmate grievance. Alleged misconduct connected to plaintiff’s protected conduct is
28
different from the wrongful return of the package due to Salas’ alleged inadvertence or in
37
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1
violation of prison regulations that established plaintiff was entitled to receive the package. Thus,
2
the September 11, 2008 appeal, if exhausted through the third level of review, would not have
3
exhausted plaintiff’s retaliation claim against defendant Salas; accordingly, plaintiff fails to meet
4
the first prong of Sapp.
5
6
Second Prong of Sapp
Plaintiff meets the second prong of Sapp. Plaintiff’s September 11, 2008 appeal was also
7
improperly rejected, similar to the August 5, 2008 appeal. Defendants provided no copy of the
8
first level review or evidence demonstrating that the appeals office responded to plaintiff’s
9
request for documentation as to why and when his annual package was actually returned. Despite
10
plaintiff’s continued efforts to appeal the return of his package, Pool rejected plaintiff’s efforts,
11
again asking plaintiff to append a screening document that apparently did not, and does not, exist.
12
In light of this fact, Pool screened plaintiff’s September 11, 2008 grievance for improper reasons,
13
rendering the appeals process unavailable.
14
Conclusion
15
Plaintiff includes no other arguments demonstrating he should be excused from
16
exhausting his retaliation claim against defendant Salas. (ECF No. 230 at 22-23.) Under Sapp,
17
plaintiff must meet both prongs in order to establish that exhaustion was thwarted by improper
18
screening. Id. 623 F.3d at 823-24. Because plaintiff’s September 11, 2008 grievance would not
19
have exhausted plaintiff’s retaliation claim against defendant Salas, defendant Salas is entitled to
20
summary judgment based on plaintiff’s failure to properly exhaust his retaliation claim.
21
22
5. Defendant Lynch
Defendants adduced evidence that plaintiff filed no grievance claiming defendant Lynch
23
retaliated against plaintiff. Plaintiff provided no inmate grievance claiming that defendant Lynch
24
allegedly retaliated against plaintiff by telling plaintiff “If I were you, I would try to get
25
transferred. You have nothing coming here.” (Pl.’s Dep. at 43-44.) Therefore, the undersigned
26
finds it undisputed that plaintiff did not file a grievance which, if pursued through the third level
27
of review, would have exhausted plaintiff’s retaliation claim against defendant Lynch. Absent
28
evidence that demonstrates plaintiff’s administrative remedies were effectively unavailable,
38
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1
2
defendant Lynch is entitled to summary judgment based on such failure.
Plaintiff argues that Pool’s “repeated wrongful screening” of plaintiff’s appeals prevented
3
plaintiff from pursuing inmate appeals in 2008 upon his return from out to court, and taken with
4
defendant Lynch’s statement to plaintiff that “you have nothing coming to you,” which plaintiff
5
understood to be retaliatory based on his attempts to grieve the withholding of his mail while out
6
to court, should excuse plaintiff’s obligation to exhaust his retaliation claim against defendant
7
Lynch. (ECF No. 230 at 23.) Further, plaintiff claims that “genuine disputes of material fact
8
exist as to whether Lynch thwarted plaintiff “from taking advantage of [the] grievance process
9
through machination, misrepresentation, or intimidation,” quoting Ross, 136 S. Ct. at 1860. (ECF
10
No. 230 at 24.)
11
In 2015, the Ninth Circuit recognized that “the threat of retaliation for reporting an
12
incident can render the prison grievance process effectively unavailable.” McBride v. Lopez, 807
13
F.3d 982, 987 (9th Cir. 2015). Whether or not exhaustion may be excused on such basis is
14
demonstrated as follows:
15
20
To show that a threat rendered the prison grievance system
unavailable, a prisoner must provide a basis for the court to find that
he actually believed prison officials would retaliate against him if he
filed a grievance. If the prisoner makes this showing, he must then
demonstrate that his belief was objectively reasonable. That is, there
must be some basis in the record for the district court to conclude that
a reasonable prisoner of ordinary firmness would have believed that
the prison official’s action communicated a threat not to use the
prison’s grievance procedure and that the threatened retaliation was
of sufficient severity to deter a reasonable prisoner from filing a
grievance.
21
Id. at 987. In other words, prisoners must demonstrate both that the prisoner actually believed the
22
defendant would retaliate against him, and that such belief was objectively reasonable -- that “a
23
reasonable prisoner of ordinary firmness” would have felt sufficiently threatened by defendant to
24
not pursue administrative remedies. Id.; Rodriguez v. County of Los Angeles, 891 F.3d 776, 792
25
(9th Cir. 2018).
16
17
18
19
26
Here, plaintiff did not adduce any evidence that plaintiff did not file a grievance because
27
he actually believed defendant Lynch would retaliate against plaintiff. As disputed facts in
28
connection with this claim, plaintiff refers to two pages of his deposition testimony. (ECF Nos.
39
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1
230-1 at 22:13; 230-2 at 35:8) (citing Pl.’s Dep. at 43:5-44:15.) But on the pages cited, plaintiff
2
confirmed that he spoke with defendant Lynch about multiple issues, including multiple
3
grievances, during which plaintiff “conveyed [his] concerns about ad seg placement through
4
withholding of mail to not hav[ing] access to law library.” (Pl.’s Dep. at 43.) Plaintiff further
5
testified that at one of these interactions, defendant Lynch responded, “If I were you, I would try
6
to get transferred. You have nothing coming here.” (Pl.’s Dep. at 44.) But plaintiff did not
7
testify to any belief that Lynch would retaliate against plaintiff if he filed a grievance. (Id.)
8
Further, plaintiff points to no declaration or deposition testimony whereby plaintiff stated he
9
actually believed defendant Lynch would retaliate against him, or that plaintiff was fearful of
10
retaliation if he filed a grievance. Plaintiff points to no declaration or deposition testimony where
11
plaintiff stated that the screening out of his appeals coupled with Lynch’s statement caused
12
plaintiff to fear retaliation if he filed any administrative appeals.
13
Moreover, taking Lynch’s statement as true, the undersigned is not persuaded that a
14
reasonable prisoner of ordinary firmness who heard Lynch’s statement would consider such
15
statement, without more, as a threat not to use the prison grievance system, or find such statement
16
to be so severe that such reasonable prisoner would be deterred from filing a grievance. 14 Also,
17
plaintiff was unable to pinpoint the time, other than “in 2008,” defendant Lynch made the
18
statement such that the court could tie the statement to the screening out of plaintiff’s appeals by
19
former defendant Pool. (Pl.’s Dep. at 44.) Plaintiff’s deposition testimony also failed to provide
20
a specific context in which Lynch’s words could be viewed as a threat.
21
For all of the above reasons, the undersigned finds that no material dispute of fact exists as
22
to whether plaintiff’s administrative remedies were rendered unavailable. The record lacks
23
evidence that plaintiff actually feared retaliation by defendant Lynch or that any fear of retaliation
24
would have been objectively reasonable. See McBride v. Lopez, 807 F.3d at 986-88.
25
Accordingly, defendant Lynch is entitled to summary judgment based on plaintiff’s failure to
26
27
28
14
As noted by defendants, plaintiff submitted twelve different grievances through the third level
of review from 2007 to 2011. (ECF No. 236 at 7.) Three of those appeals were accepted in
November and December of 2008. (ECF No. 220-4 at 10 (DEF 006).)
40
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1
exhaust administrative remedies.
2
II. Are Plaintiff’s Access to the Courts Claims Barred by Heck?
3
Defendants renew their argument that plaintiff’s access to the court claim is barred by
4
Heck v. Humphrey, 512 U.S. 477 (1994). However, as pointed out by plaintiff, on April 14,
5
2020, the district court adopted this court’s findings and recommendations on this issue, and
6
denied defendants’ motion for judgment on the pleadings based on the favorable termination rule
7
of Heck. (ECF No. 207 at 3; see also ECF No. 177 at 5-6.) Accordingly, defendants’ renewed
8
Heck argument is barred by the law of the case doctrine. See Gonzales, 677 F.3d at 390 n.4
9
(“Under the law of the case doctrine, a court will generally refuse to consider an issue that has
10
already been decided by the same court or a higher court in the same case.) Defendants’ reliance
11
on Sampson v. Garrett, 917 F.3d 880, 881 (6th Cir. 2019), is unavailing because this court is not
12
bound by authorities from the Sixth Circuit,15 and defendants wholly failed to acknowledge or
13
address the prior findings in the instant action by both this court as well as the Ninth Circuit Court
14
of Appeals. Defendants’ motion for summary judgment on the grounds that plaintiff’s access to
15
the court claim is barred by Heck should be denied.
16
III. Plaintiff’s Access to Courts Claims
17
A. Undisputed Facts
18
1. Plaintiff was convicted of robbery, attempted robbery, and false imprisonment on
19
November 8, 2000, and was ultimately sentenced to 52 years and eight months. (ECF No. 220-3
20
at 29.)
2. Plaintiff unsuccessfully appealed his conviction through the California Supreme Court.
21
22
(ECF No. 220-3 at 30.)
23
24
3. Plaintiff filed a petition for habeas corpus in Penton v. Kernan, No. 2:06-cv-0233
WQH (PCL) (S.D. Cal.). (ECF No. 220-3 at 8.)
25
26
27
28
4. On March 3, 2006, plaintiff was ordered to immediately notify the Southern District
Court of any change in address, and warned that failure to do so would subject his case to
15
Indeed, the Sixth Circuit Court of Appeals noted the Ninth Circuit’s disagreement. Sampson,
917 F.3d at 882 (citation omitted).
41
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1
dismissal. (ECF No. 220-3 at 22.)
2
3
5. Plaintiff briefed his habeas petition, including the filing of an amended petition and a
traverse. (ECF No. 220-3 at 8-11.)
4
6. On August 31, 2007, report and recommendations were issued in Penton v. Kernan,
5
No. 2:06-cv-0233 WQH (PCL) (S.D. Cal.), recommending that plaintiff’s petition for writ of
6
habeas corpus be denied, and providing that any objections were to be filed on or before
7
September 21, 2007. (ECF Nos. 220-3 at 24-62; 220-4 at 134, 136.)
8
9
10
7. Plaintiff filed a motion for extension of time, nunc pro tunc, to object to the report and
recommendations, which was granted extending the deadline to object to November 7, 2007.
(ECF No. 220-3 at 11-12.)
11
12
8. Plaintiff submitted another motion to extend the deadline, but an unidentified person
mailed it to a different court. (ECF No. 104 at ¶ 35.)
13
14
15
9. Plaintiff did not file objections to the report and recommendations. (ECF No. 220-3 at
11-12.)
10. Plaintiff was transferred from CSP-SAC to the custody of the U.S. Marshal on
16
November 8, 2007, for transport to a prison in Kentucky to serve as a prosecution witness in a
17
criminal case. (ECF No. 104 at ¶ 36.)
18
19
20
11. Plaintiff’s mail was retained at CSP-SAC while he was out to court from November
9, 2007. (ECF No. 220-5 at 115.)
12. On December 20, 2007, the habeas court adopted all portions of the report and
21
recommendations, and denied plaintiff’s petition; judgment was entered on December 26, 2007.
22
(ECF No. 220-3 at 64-68; 70.)
23
24
25
26
27
28
13. On December 21, 2007, defendant Johnson partially granted appeal 07-02453 at the
first level of review. (ECF No. 220-4 at 48.)
14. Plaintiff returned to CSP-SAC from out to court on June 19, 2008. (ECF No. 226-3 at
3 (Pl.’s Decl.); ECF No. 220-4 at 139 (CDC-114-D).)
15. When plaintiff returned to CSP-SAC he was placed in administrative segregation.
(ECF No. 220-4 at 139 (CDC-114-D).)
42
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1
2
16. Plaintiff’s mail was returned to him on July 29, 2008, by defendant Gaddi. (ECF No.
220-5 at 112, 115.)
3
17. On August 18, 2008, plaintiff’s August 5, 2008 appeal was denied at the informal
4
level of review, 16 stating his mail had been withheld while he was out to court. (ECF Nos. 220-4
5
at 145; 231 at 144.) Subsequent reviews were conducted by nonparty O’Brian and former
6
defendant Pool.
7
8
18. On August 22, 2008, defendant Virga, on behalf of defendant Walker, granted
plaintiff’s appeal 07-02453 at the second level of review. (ECF No. 220-4 at 64.)
9
19. On August 28, 2018, over ten years later, plaintiff’s motion for relief from judgment
10
was granted by the habeas court; the judgment and portions of the order adopting the report and
11
recommendations and denying the amended petition were vacated. (ECF No. 220-3 at 72-79.)
12
13
20. On September 9, 2008, nonparty Hamad partially granted plaintiff’s appeal SAC-B08-01769 at the first level of review. (ECF No. 220-4 at 113.)
14
15
21. On November 14, 2008, defendant Virga, on behalf of defendant Walker, partially
granted plaintiff’s appeal SAC-B-08-01769 at the second level of review. (ECF No. 220-4 at 98.)
16
17
22. On November 26, 2018, plaintiff filed objections to the report and recommendations
in his habeas action. (ECF No. 220-3 at 14.)
18
19
23. On September 12, 2019, the district court again denied plaintiff’s habeas petition and
judgment was entered. (ECF No. 220-3 at 81-89.)
20
24. Plaintiff filed an appeal which is currently pending. (ECF No. 220-3 at 15-16.)
21
25. Defendant Walker was Warden of CSP-SAC from mid-2006 until December 2009.
22
As warden, Walker had overall administrative responsibility of the institution. (ECF No. 220-5 at
23
1-2 (Walker Decl., ¶¶ 1-2, DEF 178-79).)
24
26. In order to manage the institution, CSP-SAC operates through a chain of command.
25
A Chief Deputy Warden reports to the Warden. The Chief Deputy Warden supervises the four
26
Associate Wardens, who basically are assigned to oversee a facility, specific unit or function.
27
28
16
Defendant Johnson testified that he recognized the signature of the reviewer to be that of
defendant J. Nunez. (ECF No. 231 at 28 (Johnson Dep. at 160).)
43
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1
Each Associate Warden in turn supervises a Correctional Captain. This chain of command
2
continues through various middle managers and supervisors down to line staff. (ECF No. 220-5
3
at 2, 42 (Walker Decl. ¶ 4, DEF 179); (Virga Decl. ¶¶ 3-5, DEF 219).)
4
27. Defendant Virga was the Chief Deputy Warden at California State Prison,
5
Sacramento (CSP-SAC), from approximately April/May 2007, to March 2010, with the exception
6
of a brief ninety-day period in 2009. A Chief Deputy Warden is under the administrative
7
direction of the Warden and functions as the operations chief over institution programs and staff.
8
(ECF No. 220-5 at 41-42 (Virga Decl. ¶¶ 1-2, DEF 218-19.)
9
10
28. In 2007 to 2008, defendant Donahoo was a sergeant, and in 2008 was assigned as an
appeals investigator. (ECF No. 220-5 at 85 (DEF 262).)
11
29. Defendant Donahoo did not process inmate mail, personal or legal, during 2007 or
12
2008, including but not limited to plaintiff’s incoming and outgoing mail, and Donahoo had no
13
law library responsibilities during 2007 to 2008. 17 (ECF No. 220-5 at 85-86 (Donahoo Decl. ¶¶
14
1-2, DEF 262-63).)
30. Plaintiff’s appeal no. SAC-07-02453 was assigned for second level review on August
15
16
4, 2008. (ECF No. 220-4 at 61 (Boxall Decl. ¶ 8, DEF 057).) Defendant Donahoo investigated
17
such appeal at the second level of review. (Virga Dep. at 248.)
31. Defendant Donahoo drafted the August 22, 2008 second level response to plaintiff’s
18
19
appeal no. SAC-07-02453 for review by defendant Associate Warden Virga. (Walker Dep. at
20
176; Virga Dep. at 248.)
32. Defendant Gaddi has been a Correctional Officer at CSP-SAC since 2003 and
21
22
generally worked in the administrative segregation unit during 2004 until about spring 2008.
23
(ECF No. 220-5 at 111 (Gaddi Decl.) (DEF 288).)
24
25
33. Gaddi did not work in the mailroom and did not have any responsibility for the
processing of mail in the mailroom. (Id.)
26
27
28
34. In 2007-2008, the CSP-SAC mailroom received mail from the post office and would
17
Plaintiff disputes this fact (ECF No. 230-2 at 16), but fails to identify specific evidence that
rebuts this statement.
44
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1
bag the mail and deliver it to the A/B gate, for inmates assigned to administrative segregation.
2
The mail bag would be waiting at the A/B gate at the start of each weekday. On days that
3
defendant Gaddi worked, he would pick up the mail bag and process it, generally within one hour
4
and fifteen minutes of starting his shift. (ECF No. 220-5 at 112) (Gaddi Decl.) (DEF 289).)
5
35. Defendant Gaddi delivered some of plaintiff’s legal mail to plaintiff on July 29, 2008.
6
This mail was delivered to plaintiff by defendant Gaddi on the same day it was received by Gaddi
7
from the mailroom. The mail listed on plaintiff’s legal mail log, signed by plaintiff on July 29,
8
2008, was delivered to plaintiff on the same day that it was received by Gaddi. (ECF No. 220-5
9
at 111-13; 115) (Gaddi Decl.; Ex. A) (DEF 288-90; 292).) 18
10
36. Defendant Gaddi testified that normally when he received legal mail it would be
11
stamped the day that the institution received it, which is usually the day before. (Gaddi Dep. at
12
88.) With regard to the July 29, 2008 legal mail, defendant Gaddi testified that it was strange or
13
peculiar that the date stamps were not from the day before, so defendant Gaddi documented the
14
received date from the envelope onto the mail log to make that clear. (Gaddi Dep. at 88-89, 93-
15
94.)
16
37. Defendant Gaddi did not withhold and was not responsible for withholding plaintiff’s
17
legal or personal mail, and had no knowledge as to whether plaintiff’s mail was being held or
18
withheld while plaintiff was away from CSP-SAC. (ECF No. 220-5 at 112-13) (Gaddi Decl.)
19
(DEF 289-90.) 19
20
21
22
23
24
25
26
27
28
18
Plaintiff disputes these facts, citing “Virga Dep. Ex. 5,” and plaintiff’s deposition testimony at
“189:2-190:14.” (ECF No. 230-2 at 24.) Exhibit 5 to Virga’s deposition is plaintiff’s August 5,
2008 appeal that was screened out. (ECF No. 231 at 144.) In this appeal, plaintiff wrote that
ASU legal mail officer Gaddi delivered 9 pieces of legal mail to plaintiff on July 29, 2008. (Id.)
However, plaintiff fails to explain how plaintiff’s August 5, 2008 appeal rebuts defendant Gaddi’s
declaration. Plaintiff also cites to pages 189:2 to 190:14 of his deposition. (ECF No. 223 at 19899.) On such pages, plaintiff testified as to letters from plaintiff’s family members but does not
address defendant Gaddi. (Id.)
19
Plaintiff disputes this statement, citing specific pages from the depositions of plaintiff,
Le’Vance Anthony Quinn and defendant Gaddi, as well as Exhibit 1 to defendant Gaddi’s
deposition, the July 29, 2008 CSP-SAC Sacramento Legal Mail Log. (ECF No. 230-2 at 24-25.)
Plaintiff fails to explain how such mail log (ECF No. 220-5 at 115) refutes defendant Gaddi’s
declaration. Plaintiff also fails to explain how the cited testimony of plaintiff, Quinn or Gaddi
45
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1
2
B. Defendants Walker, Virga, Donahoo and Gaddi
1. The Parties’ Positions
3
Defendants’ Motion
4
Defendants Warden Walker, Chief Deputy Warden Virga, Appeals Investigator Donahoo
5
and Correctional Officer Gaddi argue that they are entitled to judgment as a matter of law because
6
they were not involved in processing plaintiff’s mail and did not cause or authorize the
7
withholding of plaintiff’s mail. (ECF No. 220-1 at 28-29.) Specifically, defendants Walker and
8
Virga oversee the prison and operate through a chain of command; neither directly supervised the
9
mailroom or law library, or had a direct role in training. Defendants contend that defendants
10
Walker, Virga, and Donahoo were not even aware plaintiff’s mail was being withheld and not
11
forwarded to plaintiff while he was out to court. (ECF No. 220-1 at 29.) Further, defendants
12
point out that liability cannot be imputed to defendants Walker, Virga and Donahoo based on
13
respondeat superior or vicarious liability. “[T]he Supreme Court has rejected the notion that a
14
supervisory defendant can be liable based on knowledge and acquiescence in a subordinate’s
15
unconstitutional conduct because government officials, regardless of their title, can only be held
16
liable under Section 1983 for his or her own conduct and not the conduct of others.” (ECF No.
17
220-1 at 29) (citing Iqbal, 556 U.S. at 676-77 (rejecting argument that “a supervisor’s mere
18
knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the
19
Constitution.”).) Defendants contend there is no evidence demonstrating defendants Walker,
20
Virga and Donahoo actively interfered with plaintiff’s mail.
21
Defendants argue that the sole involvement of defendants Virga and Donahoo was related
22
to the handling of plaintiff’s inmate appeal 07-02453, and because defendant Virga signed the
23
appeal on Walker’s behalf, defendant Walker had no involvement. (ECF No. 220-1 at 30, 31.)
24
Such involvement is insufficient to hold them liable for any alleged constitutional violation.
25
(ECF No. 220-1 at 30-31.) Nevertheless, if their involvement in the review of plaintiff’s appeal
26
could give rise to liability, defendants argue that appeal No. 07-02453 would not have given
27
28
rebuts the evidence regarding Gaddi’s role in delivering the withheld mail to plaintiff or how such
testimony rebuts defendant Gaddi’s declaration (ECF No. 230, passim).
46
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1
defendants notice that plaintiff’s legal mail was not being forwarded to him while he was out to
2
court because at the time he submitted his initial grievance on September 2, 2007, he had not yet
3
left for Kentucky and his legal mail had not yet been withheld. Moreover, by the time the appeal
4
was assigned to defendant Donahoo on August 4, 2008, and signed by defendant Virga on August
5
22, 2008, plaintiff had already returned from Kentucky and received all of his withheld mail.
6
(ECF No. 220-1 at 31.) Because appeal No. 07-02453 did not concern plaintiff’s “incoming legal
7
mail, there could be no failure to investigate incoming legal mail, endorsement of any practice of
8
withholding mail, cover-up or failure to rectify such.” (ECF No. 220-1 at 31-32.) Finally,
9
defendants contend that none of them were involved in plaintiff’s appeal screened out on August
10
5, 2008, which also took place after plaintiff’s withheld mail was returned to him. (ECF No. 220-
11
1 at 32.)
12
13
Defendants argue that the sole role of defendant Gaddi was delivering the withheld mail to
plaintiff on July 29, 2008.
14
Plaintiff’s Opposition
15
Plaintiff argues that “discovery revealed facts supporting that Walker, Virga, and
16
Donahoo either were involved in or endorsed defendant Johnson’s practice of withholding ‘out to
17
court’ inmate mail at CSP-SAC, . . . or knew or should have known about the practice and failed
18
to correct it.” (ECF No. 230 at 28.) Plaintiff identified multiple job duties defendant Donahoo
19
engaged in during 2007 to 2008, “including directly supervising Johnson’s operation of the
20
mailroom.” (Id., citing Donahoo Dep. at 70, 157, 167, 168) (Donahoo would go down to the
21
mailroom to “make sure [Johnson] was on task in completing his assignments,” “to check in . . .
22
and make sure [Johnson] was performing [assigned] tasks,” “just to see how everything was
23
going,” “to talk to [Johnson] about appeals, about other assignments,” worked with [Johnson] on
24
his appeal responses and ensuring that he’[d] turned in his work in a timely manner,” “saw
25
[Johnson] pick up mail, bring it there,” “pour it on tables for sorting,” and “saw him at a table
26
looking at mail.”) In connection with plaintiff’s appeal No. 07-02453, defendant Donahoo
27
testified that he interviewed defendant Johnson, asking him to explain the mail process, and
28
Johnson claimed “in basic terms that all the mail that is received goes out that same day . . . they
47
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1
process all their mail.” (ECF No. 230 at 29, quoting Donahoo Dep. at 225.) Defendant Donahoo
2
testified that he “went into the mailroom all the time and I made sure that there wasn’t pockets of
3
mail sitting around . . . I looked in drawers, everywhere, make sure that stuff wasn’t being
4
sequestered or hidden or something like that.” (ECF No. 230 at 29, quoting Donahoo Dep. at
5
226.) Defendant Donahoo also testified that defendants Walker and Virga were also responsible
6
for the operation of the CSP-SAC mailroom. (ECF No. 230 at 30, citing Donahoo Dep. at 85.)
7
Plaintiff points to defendant Virga’s deposition testimony confirming Virga “had overall
8
general responsibility for the operation of that whole area . . . [his] responsibility was to address
9
issues that either [he] saw happening or that were brought to [his] attention or that the managers
10
would come and talk about,” and that as chief deputy, Virga was “responsible for operations, and
11
mail room is part of the operations.” (ECF No. 230 at 30, citing Virga Dep. at 102-03; 147.) As
12
part of his responsibilities of supervising defendant Johnson’s operation of the mailroom,
13
defendant Virga testified he was “supposed to be out reviewing and walking through and talking
14
to people and visually checking as much as waiting to be told something’s wrong.” (ECF No.
15
230 at 30, quoting Virga Dep. at 155-57.) However, defendant Virga denied proactively looking
16
into any issues in the CSP-SAC mail room during 2007 or 2008, and denied knowing if there was
17
a process for how the CSP-SAC mail room was supposed to handle incoming mail for an inmate
18
out to court, but testified that defendant Johnson was “responsible for implementing the policy in
19
the mail room” of withholding “out to court” inmate mail at CSP-SAC. (ECF No. 230 at 31,
20
quoting Virga Dep. at 160, 176, 178, 185-86, 187-88.) “Virga then admitted, however, that
21
Johnson’s practice of withholding “out to court” inmate mail in the CSP-SAC mailroom until the
22
inmate returned conflicted with the requirements of Title 15 of the CCR. (Id.) Consistent with
23
such testimony, defendant Walker agreed that defendant Johnson’s practice of withholding out to
24
court inmate mail at in the CSP-SAC mailroom violated Title 15 of the CCR. (ECF No. 230 at
25
31, citing Walker Dep. at 107, 112-13; 116-21.)
26
Both defendants Virga and Walker testified that defendant Johnson should have
27
discovered plaintiff’s legal mail had already been withheld when defendant Johnson responded to
28
plaintiff’s first level appeal on December 31, 2007. (Virga Dep. at 262-65; Walker Dep. at 17448
Case 2:11-cv-00518-TLN-KJN Document 251 Filed 08/12/21 Page 49 of 86
1
75.)
2
Defendant Walker testified that defendant Virga was “responsible for the daily operation
3
of the CSP-SAC mailroom in 2007 - 2008 and that Walker was responsible for monitoring the
4
chief deputy warden’s performance of his job duties pertaining to the operation of the CSP-SAC
5
mailroom.) (ECF No. 230 at 31, quoting Walker Dep. at 174-75; 55-56.) Defendant Walker
6
confirmed that as warden, he was “at the head of institution, and ultimately, he’s in charge of
7
everything that happens under the umbrella of the institution,” including the CSP-SAC mailroom.
8
(ECF No. 230 at 311, quoting Walker Dep. at 63-64.)
9
Further, defendant Walker testified that he was responsible for establishing mail
10
procedures, “the routine operation of the mail room processing of inmate mail in and out of the
11
institution” at CSP-SAC in 2007-2008. (ECF No. 230 at 31, quoting Walker Dep. at 90, 104-05.)
12
Plaintiff points to Walker’s testimony that if an office services supervisor “was storing incoming
13
mail in his office space, and not delivering it to the inmate,” such situation would have been
14
serious enough to warrant Walker’s involvement concerning how to rectify such wrongful
15
conduct in the mailroom. (ECF No. 230 at 31, quoting Walker Dep. at 69-70.)
Plaintiff contends that such testimony demonstrates that genuine disputes of material fact
16
17
preclude summary judgment as to plaintiff’s access to courts claims against defendants Walker,
18
Virga, and Donahoo. Plaintiff argues that such testimony demonstrates their roles extend beyond
19
addressing administrative appeals, and that evidence establishes that defendant Donahoo was
20
routinely present in the CSP-SAC mailroom in 2007 to 2008 to oversee defendant Johnson’s
21
operation of the mailroom, that defendants Virga and Walker were responsible for the overall
22
operation of such mailroom, and that defendant Walker was responsible for establishing
23
mailroom procedures at CSP-SAC during 2007-08. (ECF No. 230 at 32.) Moreover, plaintiff
24
argues that defendants Donahoo and Virga should have been put on notice of plaintiff’s mail
25
issues when addressing and investigating plaintiff’s mail appeal No. 07-02453, and if Pool had
26
not improperly screened out the appeal, such defendants would have been provided further notice.
27
(ECF No. 230 at 32.)
28
////
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1
Defendants’ Reply
2
Defendants contend that plaintiff’s evidence is insufficient to raise a genuine dispute of
3
material fact as to defendants Walker, Virga, or Donahoo. As to defendants Walker and Virga,
4
defendants argue that plaintiff relies solely on a theory of respondeat superior, which was rejected
5
by the Supreme Court. (ECF No. 236 at 9) (citing Iqbal, 556 U.S. at 677.) “Where purpose
6
rather than knowledge is required to impose liability on a subordinate for constitutional
7
violations, the same applies for an official charged with violations arising from his or her
8
supervisory responsibilities.” (ECF No. 236 at 9.)
9
Defendants argue that plaintiff’s reliance on Donahoo’s statements that he “would talk to
10
the mailroom supervisor about appeals and other assignments or questions about mail related to
11
an appeal response,” “typical appeals investigator issues,” fails to demonstrate defendant
12
Donahoo was involved in the withholding of plaintiff’s mail. Indeed, defendants contend that
13
plaintiff failed to offer competent evidence linking defendants Walker, Virga or Donahoo to such
14
mail withholding, or showing such defendants even knew plaintiff’s mail was withheld or
15
delayed. (ECF No. 236 at 9.) Defendants point out that plaintiff failed to make any argument
16
with regard to defendant Gaddi.
2. Standards Governing Access to the Courts Claims
17
Under the First and Fourteenth Amendments to the Constitution, state prisoners have a
18
19
right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); Phillips v. Hust, 477
20
F.3d 1070, 1076 (9th Cir. 2007). 20 Traditionally, courts have identified two types of access
21
claims: “those involving prisoners’ right to affirmative assistance, and those involving prisoners’
22
right to litigate without active interference.” Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir.
23
2011), overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th
24
Cir. 2015).
25
The right to assistance is limited to direct criminal appeals, habeas petitions, and civil
26
27
28
20
Phillips was overruled on other grounds by Hust v. Phillips, 555 U.S. 1150 (2009) (holding
librarian entitled to qualified immunity due to reasonable belief that prisoner plaintiff not required
to comb-bind petition).
50
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1
rights actions. Lewis, 518 U.S. at 354. Where interference is alleged, the right of access to courts
2
does not stop at the pleading stage of a civil rights or habeas litigation. Silva, 658 F.3d at 1102
3
(citing Lewis, 518 U.S. at 355; Bounds v. Smith, 430 U.S. 817, 828 (1977), limited in part on
4
other grounds by Lewis, 518 U.S. at 354). Prisoners also have the right to pursue claims that
5
have a reasonable basis in law or fact without active interference by prison officials. Silva, 658
6
F.3d at 1103-04 (finding that repeatedly transferring the plaintiff to different prisons and seizing
7
and withholding all of his legal files constituted active interference where the prisoner alleged
8
cases had been dismissed). This right forbids state actors from erecting barriers that impede the
9
right of access to the courts by incarcerated persons. Silva, 658 F.3d at 1102 (internal quotations
10
11
12
13
omitted).
In both types of access to the courts claims, the defendant’s actions must have been the
proximate cause of actual prejudice to the plaintiff. Silva, 658 F.3d at 1103-04.
Where, as here, a prisoner asserts a backward-looking denial of access claim, seeking a
14
remedy for a lost opportunity to present a legal claim, the prisoner must adduce evidence
15
demonstrating: (1) the loss of a “nonfrivolous” or “arguable” underlying claim; (2) the official
16
acts frustrating the litigation; and (3) a remedy that may be awarded as recompense but that is not
17
otherwise available in a future suit. See Christopher v. Harbury, 536 U.S. 403, 413-14 (2002).
18
“An arguable (though not yet established) claim [is] something of value.” Lewis, 518
19
U.S. at 353. Therefore, to demonstrate the existence of a nonfrivolous claim, plaintiffs “need not
20
show, ex post, that [they] would have been successful on the merits had [their] claims been
21
considered.” Allen v. Sakai, 48 F.3d 1082, 1085 (9th Cir. 1994). To hold otherwise “would
22
permit prison officials to substitute their judgment for the courts’ and to interfere with a
23
prisoner’s right to access on the chance that the prisoner’s claim would eventually be deemed
24
frivolous.” Id. Examples of actual prejudice include the “inability to meet a filing deadline or to
25
present a claim.” Lewis, 518 U.S. at 348 (citations and internal quotations omitted).
26
27
28
3. No Vicarious Liability
As discussed above, liability under § 1983 must be based on a defendant’s personal
participation in the alleged deprivation of constitutional rights. Barren v. Harrington, 152 F.3d
51
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1
1193, 1194 (9th Cir. 1998). A cognizable claim under Section 1983 also requires plaintiff to
2
show causation, or that a particular defendant engaged in “‘an affirmative act, participat[ed] in
3
another’s affirmative act, or omit[ted] to perform an act which he is legally required to do that
4
causes the deprivation of which complaint is made.’” Preschooler II v. Clark Cty. Sch. Bd. of
5
Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d at 743); Leer v.
6
Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988).
7
To establish causation, a plaintiff must provide evidence of each individual defendant’s
8
causal role in the alleged constitutional deprivation. Leer, 844 F.2d at 634. Accordingly, when
9
determining causation, a court “must take a very individualized approach which accounts for the
10
duties, discretion, and means of each defendant.” Id. at 633-34. Similarly, “[a] supervisor is only
11
liable for the constitutional violations of . . . subordinates if the supervisor participated in or
12
directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v.
13
List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 676 (“Because vicarious
14
liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official
15
defendant, through the official’s own individual actions, has violated the Constitution.”).
16
Respondeat superior liability does not exist under § 1983. List, 880 F.2d at 1045.
17
4. Discussion
18
A. Defendant Walker
19
20
1. No Evidence of Personal Involvement
Defendant Walker provided his own declaration in which he declares he had no direct
21
involvement in the mail process, and in 2007 to 2008, he did not directly supervise mailroom staff
22
or law library staff, and had no direct role in training staff in the processing of mail, mailroom
23
operations or law library operations. (ECF No. 220-5 at 2 (DEF 179).) Defendant Walker
24
declares he did not withhold plaintiff’s mail, did not endorse the alleged practice of wrongfully
25
withholding plaintiff’s mail, was not aware that plaintiff’s mail was withheld, and did not impede
26
plaintiff’s access to the courts or right to mail. (ECF No. 220-5 at 3.) Thus, the burden shifts to
27
plaintiff to demonstrate otherwise.
28
In opposition, plaintiff boldly claims that defendant Walker “endorsed the practice of
52
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1
wrongfully withholding mail at CSP-SAC addressed to inmates that were transferred out to court,
2
or knew or should have known about the practice and failed to correct it.” (ECF No. 230 at 28.)
3
But plaintiff then points to Walker’s testimony that as warden, Walker was responsible for
4
monitoring the chief deputy warden’s performance of his job duties pertaining to the operation of
5
the CSP-SAC mailroom,” and that as “head of institution, . . . ultimately, he’s in charge of
6
everything that happens under the umbrella of the institution,” including the CSP-SAC mailroom.
7
(ECF No. 230 at 31.) Such duties are the type of supervisorial duties that the Supreme Court
8
finds are insufficient to establish liability in a § 1983 action. Iqbal, 556 U.S. at 676. Plaintiff
9
points to no evidence demonstrating defendant Walker was personally involved, directed,
10
endorsed or was even aware that plaintiff’s mail was being withheld while he was out to court.
11
See Blantz v. Cal. Dep’t of Corr. & Rehab., 727 F.3d 917, 926-27 (9th Cir. 2013) (concluding
12
that “conclusory allegations” that a supervisory defendant “directed” other defendants, without
13
factual assertions to support the allegation, were insufficient to defeat a motion to dismiss).
14
Plaintiff’s claim as to defendant Walker fails because plaintiff adduced no competent
15
evidence demonstrating that defendant Walker was personally involved in the processing or
16
withholding of plaintiff’s legal mail. Plaintiff failed to raise a genuine dispute of material fact as
17
to whether the warden even knew that plaintiff’s legal mail was being withheld. See List, 880
18
F.2d at 1045 (no respondeat superior liability under § 1983; plaintiff must show defendant’s
19
personal involvement in the alleged violations). Rather, plaintiff recites all manner of duties
20
defendant Walker performed in his role as warden. (ECF No. 230-1 at 15.) But all of the facts
21
relied on by plaintiff as precluding summary judgment are solely based on vicarious liability due
22
to defendant Walker’s position as warden of CSP-SAC. The Supreme Court confirmed that “each
23
Government official, his or her title notwithstanding, is only liable for his or her own
24
misconduct.” Iqbal, 556 U.S. at 677. Plaintiff identified no personal misconduct by defendant
25
Walker.
26
27
28
2. No Role in Appeals Process
Defendant Walker declared that he did not participate in plaintiff’s appeal No. 07-02453
or in plaintiff’s screened out appeal dated August 5, 2008. (ECF No. 220-5 at 3-4.) Defendant
53
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1
Virga testified that defendant Walker did not participate in the second level review of plaintiff’s
2
appeal No. 07-02453. (ECF No. 231 at 71 (Virga Dep. at 267).) Defendant Virga testified that he
3
would always sign appeals on behalf of defendant Warden Walker. “It’s pro forma. He’s
4
[Walker] the warden. He’s the one that is on all the inmate appeals, and since we had split the
5
duties, and I was doing the appeals, I signed on his behalf.” (ECF No. 231 at 71 (Virga Dep. at
6
267-68.) Plaintiff failed to adduce evidence rebutting defendants’ evidence that defendant
7
Walker was not involved in addressing plaintiff’s administrative appeals.
8
9
3. Mail Procedures
Moreover, although defendant Walker testified that he was responsible for the
10
“establishment of mail procedures,” meaning “the routine operation of the mail room processing
11
of inmate mail in and out of the institution” at CSP-SAC in 2007 to 2008 (ECF No. 231 at 82
12
(Walker Dep. at 90-91), the warden later clarified that “there were already written policies and
13
procedures for everything in the institution, so in 2007-2008 we would update the current policy
14
and the procedures. So the term establishment maybe isn’t the right term” (ECF No. 231 at 86
15
(Walker Dep. at 106).). While defendant Walker was ultimately responsible as warden for the
16
annual review of the established procedure, he testified he was not directly involved. (ECF No.
17
231 at 84 (Walker Dep. at 105-06.) Plaintiff points to no written procedures authored or
18
approved by defendant Walker requiring mail room staff to retain an inmate’s mail rather than
19
forward the mail as required under Title 15 of the CCR. Plaintiff points to no memos or other
20
testimony demonstrating that defendant Walker was informed of issues with the mail room in
21
2007 to 2008. Walker agreed that if an office services supervisor was storing inmate mail in his
22
office and not delivering it to an inmate such situation would warrant Walker’s involvement, but
23
plaintiff adduced no evidence demonstrating that defendant Walker was informed that inmate
24
mail was being stored and not delivered. Plaintiff failed to adduce evidence demonstrating that
25
defendant Walker was aware that anyone in the mail room was withholding mail from plaintiff or
26
other inmates who were out to court, rather than forwarding such mail. In addition, although
27
Walker testified that defendant Johnson’s practice of holding mail for inmates who were out to
28
court violated Title 15 of the CCR, such testimony fails to demonstrate defendant Walker was
54
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1
aware of defendant Johnson’s practice. The undersigned finds that plaintiff fails to demonstrate
2
genuine material disputes of fact exist as to defendant Walker’s involvement in creating or
3
implementing the mailroom procedures at issue here, or in defendant Johnson’s alleged
4
withholding of “out to court” inmate mail at CSP-SAC.
5
For all of the above reasons, defendant Walker is entitled to summary judgment.
6
B. Defendant Virga
7
8
9
1. No Personal Involvement
While defendant Virga had “overall general responsibility for the operation of that whole
area,” including the mailroom, his duties, like defendant Walker’s, were supervisorial in nature.
10
(ECF No. 230-1 at 13-14.) When asked whether any issues came up during 2007 to 2008
11
regarding operation of the mail room at CSP-SAC, or regarding how defendant Johnson was
12
operating the mail room, defendant Virga testified, “[n]ot to my memory during this time frame,
13
no.” (ECF No. 231 at 58 (Virga Dep. at 102, 104).) Plaintiff points to no memos or other
14
testimony demonstrating that defendant Virga was informed of issues with the mail room or with
15
defendant Johnson’s role in supervising the mail room in 2007 to 2008. Plaintiff adduced no
16
evidence of defendant Virga’s personal involvement in processing or withholding plaintiff’s mail
17
or that defendant Virga was even aware that plaintiff’s mail was retained while plaintiff was out
18
to court. (ECF No. 230-1 at 13-14.) In a civil rights action, plaintiff is required to adduce
19
evidence demonstrating that defendant Virga, by his own actions, violated the Constitution.
20
Iqbal, 556 U.S. at 676. Plaintiff has not done so.
21
2. Appeals Process
22
Defendant Virga testified that defendant Donahoo conducted the second level review
23
investigation for appeal No. 07-2453 and also wrote the August 22, 2008 second level reviewer’s
24
response. (ECF No. 231 at 71 (Virga Dep. at 267.) Virga declared that he did not personally
25
investigate plaintiff’s claims. (Virga Decl. ¶¶ 13, 14 DEF 221.) Virga denied writing any portion
26
of such second level review. (Id.; Virga Dep. at 269.) Virga testified: “Donahoo did the
27
investigation. I reviewed the response,” and also reviewed the first level review and response.
28
(Virga Dep. at 248, 267, 269-70.) Defendant Walker confirmed that defendant Donahoo would
55
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1
have prepared the second level response, not defendant Virga. (Walker Dep. at 177.) Defendant
2
Walker further confirmed that defendant Virga had authority to sign the appeal response on
3
Walker’s behalf. (Walker Dep. at 178.) Thus, it appears that defendant Virga merely signed off
4
on the review for defendant Walker. Plaintiff adduced no evidence to the contrary.
5
Plaintiff argues that Virga should have been put on notice of plaintiff’s problems with the
6
mail when Virga reviewed the appeal (both first and second levels). But even assuming
7
defendant Virga’s personal involvement by virtue of his reviewing the first and second levels in
8
connection with signing off on the second level review, such involvement comes too late.
9
Review was completed after plaintiff’s mail was withheld and plaintiff had returned from out to
10
court on June 19, 2008. Plaintiff did not request the second level review until July 18, 2008, and
11
his mail was delivered on July 29, 2008. Thus, by August 28, 2008, the date the second level
12
review was signed, defendant Virga could take no steps to rectify the retention of plaintiff’s mail
13
while he was out to court because the mail had already been withheld and returned.
14
For all of the above reasons, defendant Virga is entitled to summary judgment.
15
C. Defendant Donahoo
16
1. Johnson’s Supervisor?
17
Plaintiff argues that defendant Donahoo conceded that when he was an administrative
18
sergeant at CSP-SAC, his job duties included directly supervising Johnson’s operation of the
19
mailroom, citing Donahoo’s testimony: “I usually would go down and see Layton Johnson
20
because he supervised the mailroom,” and “sometimes I would be called down there to make sure
21
that he was on task in completing his assignments.” (ECF No. 230 at 29.) Defendants object that
22
defendant Donahoo’s role as appeals investigator and mere presence in the mail room does not
23
demonstrate he withheld or interfered with plaintiff’s mail.
24
Importantly, plaintiff disregards Donahoo’s testimony that he “never officially supervised
25
the mailroom ever in [his] career.” (ECF No. 231 at 36 (Donahoo Dep. at 69).) Donahoo “had no
26
reporting structure with [Johnson].” (ECF No. 231 at 41 (Donahoo Dep. at 158).) Donahoo
27
denied ever going to the mailroom to make sure defendant Johnson was performing his duty of
28
supervising the processing of inmate mail. (ECF No. 231 at 43 (Donahoo Dep. at 169).)
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1
Indeed, defendant Johnson testified that he reported to the visiting Lieutenant, and maybe
2
a central services captain. (Johnson Dep. at 80, 81.) Although defendant Johnson could not
3
recall names (defendant Johnson testified the positions were a “revolving door,”) nonparty
4
Mclendan and Lynch were identified as central service captains. (Johnson Dep. at 81, 171-73.)
5
Defendant Walker confirmed that Johnson’s direct supervisor, the correctional captain, would
6
have known what were Mr. Johnson’s job responsibilities. (Walker Dep. at 72.) Walker denied
7
knowing whether defendant Donahoo had job responsibilities as to the operation of the CSP-SAC
8
mail room. (Walker Dep. at 72.) When asked whether defendant Donahoo had any
9
responsibilities with regard to the CSP-SAC mail room in 2007 through 2008, defendant Virga
10
responded, “I don’t believe he did. I believe he was doing appeals during that time frame.”
11
(Virga Dep. at 164-65.) Virga explained that he believed that because he recalled Donahoo
12
responding to inmate appeals. (Virga Dep. at 165.)
13
Defendant Donahoo testified he “was all over that institution as being the administrative
14
sergeant . . . tr[ying] to . . . cover the whole institution, do whatever I was directed to do.”
15
(Donahoo Dep. at 73.) Former defendant Pool confirmed that defendant Donahoo “was in and
16
out, going to all different places.” (Pool Dep. at 181.) Custody Captain Fred Schroeder would
17
ask Donahoo to go down to the mailroom “in different capacities:” verifying correctional officers
18
temporarily assigned in there were working; going down to talk to Johnson about a memo or an
19
appeal close to being overdue; “just go see what’s going on down there,” appeals office says that
20
this appeal’s coming up. Can you go check the status of it,” “sometimes [Donahoo] would be
21
called down there to make sure that [Johnson] was on task in completing his assignments,” “to
22
ensure that certain staff made it to work,” “most of the time it was the staff that were redirected
23
there that couldn’t work inside the prison walls because they were being investigated. So
24
[Donahoo] would verify that certain staff members are there,” that accounted for about 50% of
25
Donahoo’s time; other times Donahoo went down to talk to Johnson about “appeals,” “other
26
assignments,” “he might be doing a memo . . . or any other work;” “somebody could be
27
responding to a second level,” Donahoo “might be looking for a book that an inmate alleges that
28
he didn’t receive,” Donahoo worked with Johnson “on his appeal responses and ensuring that he’s
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1
turned in his work in a timely manner,” there were times Donahoo went down “because staff had
2
made allegations [about] this or that[,] and [Donahoo would] go down there and try to be the
3
sound of reason.” (Donahoo Dep. at 69, 70, 88, 157, 168-69.) Donahoo conceded he had seen
4
Johnson pick up mail, bring it in, and pour it on the table for sorting, but not every time, and
5
never saw other staff do it; most of the time the mail had already been sorted when Donahoo went
6
down there. (ECF No. 231 at 43 (Donahoo Dep. at 169.)
7
On this record, a reasonable juror would not find that defendant Donahoo supervised
8
defendant Johnson in his role as supervisor of the mailroom. But even assuming Donahoo’s
9
myriad duties could be construed as serving such a role, plaintiff adduced no evidence that
10
defendant Donahoo was responsible for processing mail, withheld plaintiff’s mail, or was even
11
aware that plaintiff’s mail was withheld while plaintiff was out to court. There is no material
12
dispute of fact as to whether defendant Donahoo was involved in withholding plaintiff’s mail.
2. Appeals Process
13
It is undisputed that appeal no. SAC-07-02453 was assigned to defendant Donahoo on
14
15
August 2, 2008, and Donahoo investigated and authored the second level response for defendant
16
Virga to review and sign on behalf of defendant Walker. Donahoo was confident he interviewed
17
Johnson “about the processing of outgoing mail to the inmate population.” (ECF No. 231 at 45
18
(Donahoo Dep. at 225).) In essence, Johnson responded, “all the mail that is received goes out
19
that same day.” (Id.) “They process all their mail.” (ECF No. 231 at 46 (Donahoo Dep. at 226).)
20
At that time OP17 was in place and it provided for mail to be processed within 40 business hours.
21
(Id.)
22
23
24
25
I went into the mailroom all the time and I made sure that there
wasn’t pockets of mail sitting around. . . . I looked in drawers,
everywhere, make sure that stuff wasn’t being sequestered or hidden
or something like that, people weren’t doing their job. To be honest,
I wanted to make sure that what people said, there were other people
that claimed the same thing -- that there was no truth to it. There was
no mail in the mailroom.
26
(ECF No. 231 at 46 (Donahoo Dep. at 226).) Donahoo testified that they would “occasionally”
27
get appeals on mail being delayed, and Donahoo would “do an inquiry.” (ECF No. 231 at 46
28
(Donahoo Dep. at 227).) Throughout his career he would get inmate appeals for mail issues for
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1
various reasons, could not recall how many, “wasn’t like [he] did 100 of them.” (Id.) He recalled
2
a couple concerning delayed mail, a couple of inmates who were high influential STG members,
3
gang members, but none with this type of delay; mostly it was a couple of days’ delay, and
4
usually it was general mail, not legal mail. (ECF No. 231 at 46 (Donahoo Dep. at 227-28).) In
5
connection with this appeal, Donahoo interviewed Johnson because Johnson supervised the
6
issuance of the mail; Donahoo looked at the OP17 and Title 15, and looked in the mailroom to see
7
if any mail was being held. (ECF No. 231 at 46 (Donahoo Dep. at 229).) Donahoo could not
8
recall whether he interviewed plaintiff, or whether Donahoo reviewed other appeals plaintiff had
9
filed. (ECF No. 231 at 47 (Donahoo Dep. at 230-31).) Donahoo did not confirm with Johnson
10
that Johnson had actually interviewed plaintiff (no date for such interview was included despite
11
Johnson writing that he had personally interviewed plaintiff). (ECF No. 231 at 48 (Donahoo Dep.
12
at 235-36).)
13
That said, the record reflects that defendant Donahoo’s role in investigating and drafting
14
the response to plaintiff’s appeal no. SAC-07-02453 did not begin until August 2, 2008. Thus, by
15
the time defendant Donahoo became involved, plaintiff’s legal mail had already been withheld,
16
and returned to plaintiff on July 29, 2008. Therefore, there were no steps defendant Donahoo
17
could take to rectify the problem. Accordingly, defendant Donahoo is entitled to summary
18
judgment.
19
D. Defendant Gaddi
20
Defendants argue that plaintiff presented no evidence that defendant Gaddi interfered with
21
plaintiff’s mail, pointing out that plaintiff failed to argue as to Gaddi, thus apparently abandoning
22
this claim. (ECF No. 236 at 9.) Although defendant Gaddi is mentioned in a subheading (ECF
23
No. 230 at 20), plaintiff included no arguments as to defendant Gaddi. (Id., passim.)
24
The undersigned finds it undisputed that defendant Gaddi’s sole role was to deliver
25
plaintiff’s withheld mail to plaintiff on July 29, 2008, the same day that defendant Gaddi received
26
it from the mailroom. (ECF No. 220-1 at 32.) It is undisputed that defendant Gaddi did not work
27
in the mail room at CSP-SAC. There is no evidence that defendant Gaddi withheld, or caused
28
plaintiff’s mail to be withheld, legal or personal, while plaintiff was out to court. Because no
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1
reasonable jury would find defendant Gaddi liable on these undisputed facts, defendant Gaddi is
2
entitled to summary judgment.
3
E. Qualified Immunity
4
Because no evidence demonstrates that defendants Walker, Virga, Donahoo and Gaddi
5
were personally involved in the processing or withholding of plaintiff’s mail, the court need not
6
reach their request for qualified immunity.
7
IV. Mail Claims
8
A. The Parties’ Positions
9
In the fourth amended complaint, plaintiff contends that defendants Walker, Virga,
10
Donahoo, and Gaddi interfered with plaintiff’s right to receive mail. Such defendants argue they
11
are entitled to summary judgment because plaintiff fails to adduce evidence that any of them were
12
involved in processing, withholding, or causing plaintiff’s mail to be withheld. Defendants
13
Walker, Virga and Donahoo did not supervise the mail room or have a direct role in the training
14
of mail room personnel. Because such defendants were not aware plaintiff’s mail was withheld,
15
they were unable to provide notice to plaintiff that his mail was withheld. (ECF No. 220-1 at 35.)
16
Defendant Gaddi’s only role was delivering plaintiff’s mail to him on the day Gaddi received it
17
from the mail room.
18
Plaintiff contends that genuine disputes of material facts exist as to the involvement of
19
defendants Walker, Virga, and Donahoo in Johnson’s practice of wrongfully withholding out to
20
court inmate mail, based on plaintiff’s arguments supporting his access to courts claim. (ECF No.
21
230 at 40.) In reply, defendants argue that plaintiff offered no evidence that such defendants were
22
involved in the processing or withholding of plaintiff’s mail, or even knew plaintiff’s mail was
23
withheld or delayed. “[T]here must be more than some metaphysical doubt as to the material
24
facts.” (ECF No. 236 at 9) (citing Liberty Lobby Inc., 477 U.S. at 261.) Finally, defendants point
25
out that plaintiff offered no argument or evidence demonstrating that defendant Gaddi interfered
26
with plaintiff’s mail.
27
B. Legal Standards
28
Under the First Amendment, prisoners have a right to send and receive mail. Witherow v.
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1
Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). However, a prison may adopt regulations or
2
practices for inmate mail which limit a prisoner’s First Amendment rights as long as the
3
regulations are “reasonably related to legitimate penological interests.” Turner v. Safley, 482
4
U.S. 78, 89, (1987). “When a prison regulation affects outgoing mail as opposed to incoming
5
mail, there must be a ‘closer fit between the regulation and the purpose it serves.’” Witherow, 52
6
F.3d at 265 (quoting Thornburgh v. Abbott, 490 U.S. 401, 412 (1989)). Courts have also
7
afforded greater protection to legal mail than non-legal mail. See Thornburgh, 490 U.S. at 413.
8
If prison officials withhold mail, a prisoner has a due process right to receive notice that his
9
incoming mail is being withheld. See Frost v. Symington, 197 F.3d 348, 353-54 (9th Cir. 1999);
10
see also Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001) (holding that due
11
process rights apply to withheld mail where prisoners had constitutionally protected right to
12
receive the mail).
13
C. Discussion
14
As discussed in detail in the access to courts section above, plaintiff adduced no evidence
15
demonstrating that defendants Walker, Virga, Donahoo or Gaddi were involved in processing,
16
withholding, or causing plaintiff’s mail to be withheld. Because there is no evidence
17
demonstrating the personal participation in the alleged constitutional violations, defendants
18
Walker, Virga, Donahoo and Gaddi are also entitled to summary judgment on plaintiff’s
19
interference with mail claims. See Jones v. Williams, 297 F.3d at 934 (“In order for a person
20
acting under color of state law to be liable under section 1983 there must be a showing of
21
personal participation in the alleged rights deprivation. . . .”).
22
D. Qualified Immunity
23
Because no evidence demonstrates that defendants Walker, Virga, Donahoo and Gaddi
24
were personally involved in the processing or withholding of plaintiff’s mail, the court need not
25
reach their request for qualified immunity.
26
V. Law Library Access: Defendants Bradford and Morrow
27
A. Undisputed Facts
28
1. Plaintiff’s objections to the August 31, 2007 report and recommendations issued in
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Penton v. Kernan, No. 2:06-cv-0233 WQH (PCL) (S.D. Cal.), were due on or before September
2
21, 2007. (ECF Nos. 220-3 at 24-62; 220-4 at 134, 136.) Plaintiff did not receive the report and
3
recommendations until September 9, 2007. (ECF No. 226-3 at 2 (Pl.’s Decl.).)
4
5
2. Plaintiff was given physical access to the law library on September 12, 2007, and
November 2, 2007. (ECF No. 220-5 at 118, 121, 126, 131 (DEF 295, 298, 303, 308).) 21
6
3. Plaintiff filed a motion for extension of time, nunc pro tunc, to object to the report and
7
recommendations, which was granted extending the deadline to object to November 7, 2007.
8
(ECF No. 220-3 at 11-12.)
9
10
4. Plaintiff submitted another motion to extend the deadline, but an unidentified person
mailed it to a different court. (ECF No. 104 at ¶ 35.)
11
12
5. Plaintiff did not file objections to the report and recommendations. (ECF No. 220-3 at
11-12.)
13
6. On November 8, 2007, plaintiff was transferred out to court.
14
7. Inmates housed in the ad seg stand-alone unit could access the library through paging,
15
PLU requests and GLU requests. (Pl.’s Dep. at 154-55; Morrow Dep. at 30, 91; Bradford Dep. at
16
96-97; ECF No. 220-5 at 117-18 (Morrow Decl. DEF 294-95).) Plaintiff testified that paging was
17
not effective for litigation due to delays, and defendant Bradford testified that an ad seg inmate’s
18
ability to access the law library through a GLU request was “slim” due to demand. (Pl.’s Dep. at
19
154-55; Bradford Dep. at 87-89.)
20
21
8. Defendant Bradford was a Library Technical Assistant at CSP-SAC during 2007 and
2008.
22
23
24
25
26
27
28
21
Plaintiff disputes this fact. (ECF No. 230-2 at 29.) Plaintiff testified that he attended the law
library on September 12, 2007, and could not recall if he was called in November 2007 (Pl.’s
Dep. at 151-52, 154), but did not rebut defendants’ evidence that he attended the law library on
November 2, 2007. Plaintiff testified that although nonparty Sgt. Cross took plaintiff for law
library access on September 26, 2007, no one was there, so plaintiff had no access to law library
materials because the law library was closed. (Pl.’s Dep. at 153.) Defendants argue that plaintiff
was also provided physical access on August 22, 2007, August 31, 2007, and September 5, 2007,
but plaintiff did not receive the report and recommendations until September 9, 2007, so law
library attendance prior to such receipt would not assist plaintiff in preparing objections or a
certificate of appealability.
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9. As a Library Technical Assistant, defendant Bradford’s duties included: opening the
2
law library in the morning and begin programs; create ducat lists for all inmates with priority
3
status; call for inmates on the ducat list for program; let inmates in to use the library, prepare case
4
law requests, priority legal user and general legal user eligibility approval forms; sort the
5
institutional library mail, copy requests, supply requests, and authorize paging requests.
6
10. On September 12, 2007, plaintiff signed, and on September 14, 2007, defendant
7
Bradford approved, a preferred legal user (“PLU”) request to access the law library for plaintiff to
8
object “to report and recommendation.” (ECF No. 220-5 at 136 (DEF 313).) Despite such
9
approval, plaintiff was not called or escorted to the law library on September 19, 2017.
10
11
12
11. On October 31, 2007, defendant Bradford also approved a subsequent PLU request by
plaintiff for a state court action. (ECF No. 220-5 at 138 (DEF 315).)
12. Both PLU request forms include a section entitled “Note” informing plaintiff that “[i]f
13
you are unable to meet your deadline for ANY reason, your ONLY recourse is to apply to the
14
court for an extension of time. (DEF 313, 315.)
15
13. An in Cell Legal Request Form, dated “8-22-07,” a form in which inmates can request
16
for legal materials, reflects plaintiff was sent case materials on August 31, 2007. (ECF No. 220-5
17
at 140 (DEF 317).)
18
14. On August 11, 2008, plaintiff completed a PLU request. (ECF No. 231 at 407.)
19
Plaintiff’s purpose was “Rule 60(b) motion to reinstate habeas petition,” and cited “Federal Rules
20
of Appellate Procedure[] Rules 2-6,” and “Rule 60(b) Motion to Reinstate.” (Id.) Plaintiff
21
explained that he had been out to court since November 2007, did not return until June 19, 2008,
22
did not receive legal properly until August 1, 2008, and was appending a copy of the legal mail
23
log to establish he was not provided his legal mail until July 29, 2008. (Id.)
24
15. The August 11, 2008 PLU request was denied by defendant Bradford on August 13,
25
2008, marking the box “Document submitted does not establish a deadline for filing and inmate
26
has not provided other proof of existing deadline.” (Id.)
27
28
16. The “note” section of the PLU request form states:
Priority access (PLU) is granted only to inmates who are acting in
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1
2
3
4
5
propria person, without benefit of counsel, subject to verification by
COURT DOCUMENTATION supplied by the inmate. This means
that you must submit a court order that directs you to file a specific
document by a specific date that is no longer than 30 days from now.
. . . If the court does not specify a date, YOU must find the applicable
court rule and cite it in the space above. Only the last 30 days or less,
before a deadline, will qualify, even though 60 or 90 days may be
granted by the court or rule.
6
(ECF No. 231 at 407.) This form also states above the inmate’s signature that “I have read and
7
understood the above procedures.” (Id.) Plaintiff added: “legal mail log dated 7/29/08 along
8
with 3 separate documents including judgment from U.S. Dist. Court attached.” (Id.)
9
17. A copy request sent to the CSP-SAC A Facility Law Library, stamped received “Aug
10
27 2008,” requesting a writ of mandate be copied was approved by Bradford on “8/29/08.”
11
18. Defendant Morrow was a Correctional Officer at CSP-SAC from 1986 to 2020.
12
19. Defendant Morrow’s responsibilities included, but were not limited to, supervising
13
the conduct of inmates and ensuring the safety and security of the institution, staff and inmates.
14
Defendant Morrow testified that he would also feed, count, and escort inmates to the yard. (ECF
15
No. 231 at 394 (Morrow Dep. at 21).)
16
20. In 2007, on days defendant Morrow was working, he was primarily assigned to the
17
facility A administrative segregation unit law library. In this law library, defendant Morrow’s
18
duties included escorting inmates from their cell block to the administrative segregation unit law
19
library and securing inmates in holding cells in the law library.
20
21. Once an inmate was escorted to the library and secured in a holding cell, inmates
21
would give Morrow a paper with their request, which Morrow would give to a clerk, who would
22
then retrieve legal materials. Defendant Morrow was not responsible for retrieving legal
23
materials, but would simply pass forms from an inmate to a clerk, who would retrieve requested
24
legal materials, and then pass the legal materials back to the inmate, once retrieved by the clerk.
25
B. The Parties’ Positions
26
Defendants’ Motion
27
Defendants contend that because plaintiff’s claim against defendants Morrow and
28
Bradford arose after the pleading stage of his habeas action, and the matter was fully-briefed,
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1
plaintiff was not prevented from presenting a habeas petition and there is no basis for an access to
2
the courts claim. In addition, defendants argue that plaintiff was not harmed because the district
3
judge issued a ruling on the merits of the petition. (ECF No. 220-1 at 32-33.) Further, defendants
4
argue there is no evidence that they actively interfered with plaintiff’s access to the courts by
5
improperly denying him such access. Rather, the evidence shows that plaintiff was provided law
6
library access on several occasions. Plaintiff successfully moved to extend his deadline to file
7
objections, plaintiff had over two months to file such objections, and thus cannot plausibly
8
attribute his failure to timely file objections to any conduct by defendants Morrow or Bradford.
9
(ECF No. 220-1 at 33.) Defendants contend that even if defendant Bradford did not call plaintiff
10
after approving his request, such failure would be mere negligence. Defendant Morrow could not
11
authorize PLU requests. In addition, plaintiff chose to seek another extension to file objections
12
until December of 2007, and the mailing of such request to the wrong address breaks the causal
13
connection between any alleged misconduct by defendants Morrow and Bradford in 2007. (Id.)
14
Finally, defendants argue that plaintiff was aware that his objections were due by the requested
15
extension date, yet failed to file them; defendants Morrow and Bradford cannot be held
16
responsible for such failure. (ECF No. 220-1 at 33.)
17
Plaintiff’s Opposition
18
Plaintiff contends that defendants Morrow and Bradford violated plaintiff’s right of access
19
to the courts by actively interfering and preventing plaintiff from accessing the law library to file
20
objections in his habeas case in 2007 before he was sent out to court. Plaintiff contends that the
21
Ninth Circuit’s ruling that the “‘actual injury’ analysis . . . is not an assessment of the merits of
22
the underlying claim that is now lost,” demonstrates that defendants’ argument concerning the
23
merits of the habeas action is unavailing. (ECF No. 230 at 33.) Further, plaintiff contends that
24
the library appeal (log no. SAC-07-02453) and evidence revealed through discovery establish
25
material disputes of fact as to whether defendants Bradford and Morrow prevented plaintiff from
26
accessing the law library to obtain legal materials necessary to file objections. (ECF No. 230 at
27
34.) Plaintiff’s arguments specific to such defendants are set forth below.
28
////
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1
Plaintiff’s Arguments re Defendant Bradford
2
On September 9, 2007, plaintiff received the report and recommendations, and submitted
3
his PLU request on September 12, 2007. Defendant Bradford, library technical assistant at CSP-
4
SAC, was responsible for addressing PLU requests, creating daily ducat lists for prisoners with
5
PLU status, for calling prisoners on the PLU ducat list to access the law library, and for letting
6
inmates in to use the library and preparing case law and PLU requests. (ECF No. 230 at 34.) On
7
September 14, 2007, defendant Bradford granted plaintiff’s PLU request. Because plaintiff was
8
housed in ad seg, Wednesdays were the only days plaintiff could use the law library. Therefore,
9
plaintiff expected to use the law library on Wednesday, September 19, 2007, but defendant
10
Bradford did not call plaintiff. Defendant Morrow’s November 6, 2007 informal level of review
11
of appeal log no. SAC-07-02453 confirms plaintiff was not called on September 19, 2007.
12
Defendant Bradford testified that plaintiff should have gotten access to the law library prior to the
13
September 21, 2007 deadline. (ECF No. 230 at 35.)
14
Subsequently, defendant Bradford did not call plaintiff for law library access on
15
Wednesday, September 26, 2007. Plaintiff spoke with Sgt. Cross who escorted plaintiff to the
16
law library, but the law library was closed. On September 27, 2007, plaintiff filed a request for
17
extension of time to file objections due to his inability to attend the library. On October 22, 2007,
18
the habeas court granted plaintiff an extension of time until November 7, 2007. However, due to
19
delays with plaintiff’s mail, plaintiff did not receive the court’s order until November 6, 2007.
20
Plaintiff immediately submitted another request for extension, which did not make it to the habeas
21
court, and plaintiff was transferred out to court on November 8, 2007, without his legal materials
22
or the ability to notify family or friends as to his whereabouts. Plaintiff argues he was unable to
23
file his objections because defendant Bradford never called plaintiff to the law library after she
24
granted plaintiff PLU status on September 14, 2007. 22
25
////
26
27
28
22
Because plaintiff failed to exhaust his access to court claim against defendant Bradford after
plaintiff returned from out to court in 2008, the court does not set forth plaintiff’s arguments
concerning his 2008 access to the courts claim against Bradford.
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1
2
Plaintiff’s Arguments re Defendant Morrow
In 2007, defendant Morrow was a correctional officer primarily assigned to the law
3
library, whose duties included escorting prisoners from their cell blocks at CSP-SAC to the law
4
library and securing such prisoners in the holding cages at the library. Because plaintiff was
5
housed in the stand-alone ad seg unit, plaintiff could only access the law library where defendant
6
Morrow worked.
7
Defendant Morrow would take requests for law library materials from the inmate housed
8
in the holding cage and hand it to another inmate who worked as a clerk in the law library who
9
would go retrieve the requested material from the law library. Defendant Morrow testified that if
10
no inmate clerk was working at the law library, “there’s no law library.” (ECF No. 230 at 66.)
11
Inmate clerks would not show up for law library work if “there was a lock down or incident in
12
their cell block or they were sick, something like that.” (Id.)
13
Defendant Morrow was responsible for calling ad seg inmates to the law library.
14
Defendant Morrow did not call plaintiff into the law library from September 14, 2007, through
15
November 8, 2007, when plaintiff was transferred out to court. Defendant Bradford testified that
16
in 2007-2008: (a) she and defendant Morrow would talk about which prisoners had PLU status
17
and were going to access the library on particular days; (b) the law libraries at CSP-SAC were
18
short-staffed, with too many prisoners needing law library access and too few staff, and it would
19
have been easier to accommodate prisoner’s requests for access to materials if there were more
20
library staff; (c) there were no computers in the law library where she and defendant Morrow
21
were assigned; (d) there was no one to fill in for her when she was unavailable to work, so the law
22
library would “shut down,” and (e) libraries would shut down approximately “[t]wice a week.”
23
(ECF No. 230 at 37.)
24
Reply by Morrow & Bradford
25
Defendants contend that plaintiff failed to adduce any evidence that either defendant
26
Morrow or Bradford actively interfered with plaintiff’s access to the court. Plaintiff was in the
27
law library six times between August 22 and November 2, 2007. It is undisputed that defendant
28
Morrow did not determine PLU access, and plaintiff offered no evidence that defendant Morrow
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did anything to prevent plaintiff from accessing the law library. (ECF No. 236 at 10.)
2
Defendants point out that plaintiff’s claim against defendant Bradford rests on his
3
allegation that he did not receive PLU access on September 21, 2007, but his initial deadline was
4
September 28, 2007, and his extended deadline for filing objections was November 7, 2007.
5
Plaintiff was given law library access prior to the November 7, 2007 deadline, including
6
November 2, 2007, five days before the objections were due. (ECF No. 236 at 10.)
7
C. Legal Standards
8
As discussed above, plaintiff must adduce evidence demonstrating: (1) the loss of a
9
“nonfrivolous” or “arguable” underlying claim; (2) the official acts frustrating the litigation; and
10
(3) a remedy that may be awarded as recompense but that is not otherwise available in a future
11
suit. See Christopher, 536 U.S. at 413-14; see also Phillips, 477 F.3d at 1076 (citing Christopher,
12
536 U.S. at 413-14).
13
Where, as here, interference is alleged, the right of access to courts does not stop at the
14
pleading stage of a civil rights or habeas litigation, because prisoners have the right to litigate
15
such claims “without active interference.” Silva, 658 F.3d at 1102. In other words, once the
16
litigation of a habeas or civil rights claim advances beyond the pleading stage, prisoners also have
17
the right to serve and file necessary documents, send and receive communications to and from
18
judges and lawyers, or to assert and sustain defenses related to such matters without barriers by
19
state actors. See id. at 1103 (citations omitted). In Silva, the plaintiff was repeatedly transferred
20
between different prison facilities and prison officials withheld necessary legal documents to
21
hinder the litigation of his pending civil lawsuits. See id., 658 F.3d at 1104. The Ninth Circuit
22
concluded that such facts sufficiently alleged an actual injury under Lewis -- as a result of prison
23
officials’ actions, several of Silva’s lawsuits were dismissed. See Silva, 658 F.3d at 1104. The
24
court found that dismissal of a pending claim because of prison officials’ actions, standing alone,
25
was sufficient to demonstrate that the plaintiff had been denied access to the courts. Id.
26
27
28
D. Discussion
1. Loss of Underlying Claim
Here, as the Ninth Circuit already found, plaintiff sustained his actual injury once he was
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1
unable to file timely objections, and his case was dismissed. The challenge to his criminal
2
conviction was not frivolous, and no further inquiry into the nature of plaintiff’s underlying court
3
case is appropriate. Phillips, 477 at 1076.
4
2. No Other Remedy
5
Plaintiff had no other remedy than the relief available in this denial of access suit. Unlike
6
the prisoner in Christopher, plaintiff has no independent tort cause of action against defendants
7
Bradford and Morrow for the violation of his right to access the court. Moreover, even if state
8
law permitted plaintiff to file a successive post-conviction relief suit, such a suit could not
9
provide the relief plaintiff seeks here, namely compensation for the expense and additional efforts
10
he had to undertake to continue prosecuting his habeas action.
3. Acts Frustrating Plaintiff’s Ability to File Objections
11
12
September 19, 2007
13
As an inmate housed in the stand-alone ad seg unit, plaintiff could not attend the library
14
unless he was under escort by custody staff, and then only on Wednesdays. Defendant Bradford
15
granted plaintiff’s PLU status on September 14, 2007. But plaintiff did not attend the law library
16
on Wednesday, September 19, 2007. No copy of the ducat list for the attendance of inmates to be
17
escorted to the library on September 19, 2007 was cited or produced, if one exists. There is no
18
evidence demonstrating plaintiff was on the list of inmates to be escorted to the library on
19
September 19, 2007, although it is reasonable to infer he should have been on the ducat list
20
because he had been granted PLU status. No competent evidence explains why plaintiff was not
21
able to attend the library that day. 23 Plaintiff failed to demonstrate either or both Bradford or
22
Morrow were responsible for plaintiff’s inability to attend law library on September 19, 2007.
23
24
25
26
27
28
23
The court may not consider plaintiff’s deposition testimony that a fellow prisoner “Rodriguez,”
who was housed next door to plaintiff, informed plaintiff that on September 14, 2007, Rodriguez
overheard defendant Morrow tell defendant Bradford, “[w]e do not want Inmate Penton in the law
library.” (ECF No. 231 at 108 (Pl.’s Dep. at 160.) Plaintiff has not provided a declaration by
inmate Rodriguez, and plaintiff’s recollection of what Rodriguez allegedly heard is inadmissible
hearsay. A district court may only consider admissible evidence in ruling on a motion for
summary judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th
Cir. 2002).
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Rather, it is unclear who was responsible for plaintiff’s inability to attend. Defendant
2
Bradford testified that she could not recall whether she called plaintiff to the library that day, and
3
also testified that it was possible for inmates not to come to the library even when they are called
4
by the librarian. (Bradford Dep. at 140; 153-54; 181.) Defendant Bradford testified that an
5
inmate may refuse to come, or the correctional officer may decline to bring the inmate to the
6
library. (Bradford Dep. at 140; 153-54.) But defendant Bradford was not present at plaintiff’s
7
housing; therefore, such testimony is unhelpful.
8
9
Defendant Morrow testified that custody had nothing to do with PLU status, or making the
list of PLU inmates who would go to the law library each day. (Morrow Dep. at 41, 154-55.)
10
Rather, the librarians determined PLU status, and defendant Morrow “did the timbers
11
coordination as far as what block was [going to the library].” (Morrow Dep. at 165.) Defendant
12
Morrow could only escort an inmate to the library if such inmate had been granted PLU status by
13
the librarian. Plaintiff adduced no evidence demonstrating that defendant Morrow failed to call
14
plaintiff from his cell in response to defendant Bradford including plaintiff on the PLU list for
15
law library access on September 19, 2007.
16
Defendant Bradford testified that in 2007 to 2008, she and defendant Morrow would talk
17
about which prisoners had PLU status and were going to access the library on particular days.
18
(Bradford Dep. at 201-02.) Specifically, when asked what work-related issues she would talk to
19
Morrow about, defendant Bradford responded:
20
21
22
23
24
25
Just some general things, PLU, got PLU coming up, how many you
going to have, how many you expecting. Okay. Well let me get the
clerk to get the stuff out for -- yeah, we get the clerk to get stuff out,
set up in the cage for him already, so when they got there, you know
-- and we knew individually from those times which one were
coming in, we knew what it was that they would be needing to start
them off. So we would have them already prepared in the cages for
them, so it would be less problem or less back and forth for them in
the beginning to get started. If you have what they need available,
then they get started right away, you won’t have to worry about it.
26
(Bradford Dep. at 201-02.) Bradford denied having any conversations with Morrow about
27
plaintiff. (Id. at 108.) Defendant Morrow denied talking to Bradford about any of the inmates.
28
(Morrow Dep. at 167.) Plaintiff provided no declaration stating he witnessed any conversation
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1
between Morrow and Bradford. Other than defendant Bradford’s generalized testimony, there is
2
no competent evidence that defendants Morrow and Bradford discussed plaintiff, his PLU status,
3
or his ability to attend the law library on September 14, 2007 or September 19, 2007.
4
Defendants argue that a one-time failure to provide law library access only constitutes, at
5
most, negligence. Plaintiff maintains that the failure was intentional to keep plaintiff out of the
6
library. However, plaintiff adduced no competent evidence that either Bradford or Morrow
7
intentionally prevented plaintiff from attending law library on September 19, 2007. Indeed, as
8
discussed above, it is unclear why plaintiff did not attend. Because it is undisputed that defendant
9
Bradford put together the daily list for those inmates granted PLU status, a reasonable inference
10
could be made that defendant Bradford failed to call plaintiff to the library on September 19,
11
2007. But there is no evidence that such failure was intentional as opposed to simply negligent.
12
There is no competent evidence that Bradford and Morrow worked together to prevent plaintiff
13
from attending the library on September 19, 2007. There is no evidence that either defendant
14
Bradford or defendant Morrow erected a barrier that was intended to impede plaintiff’s ability to
15
litigate.
16
Further, even if defendant Bradford failed to call plaintiff to the library on September 19,
17
2007, plaintiff failed to establish that defendant Bradford’s failure to act was the proximate cause
18
of actual prejudice to plaintiff. Plaintiff’s inability to attend the library on one occasion, absent
19
any evidence showing an intentional act to hinder plaintiff, is insufficient to demonstrate “active
20
interference” with plaintiff’s right to litigate. See Silva, 658 F.3d at 1104 (finding cognizable a
21
claim that defendants actively interfered with prisoner’s right to litigate by repeatedly transferring
22
him to different institutions and that defendants seized and withheld the prisoner’s legal materials
23
in order to hinder plaintiff’s ability to access the courts).
24
Finally, the undersigned cannot find that plaintiff’s inability to attend the library on
25
September 19, 2007, unduly frustrated his efforts to file objections because plaintiff was able to
26
obtain an extension of time until November 7, 2007, and was given library access on November
27
2, 2007.
28
////
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September 26, 2007 to Transfer Out to Court
2
The failure of defendants Bradford and Morrow to call plaintiff to the library on
3
September 26, 2007, cannot be viewed as active interference on their parts because plaintiff
4
concedes the “law library was closed that day.” (Pl.’s Dep. at 153.) Nonparty Sgt. Cross escorted
5
plaintiff to the library that day but there was no one there to assist. (Pl.’s Dep. at 152-53.)
6
Plaintiff adduced no evidence demonstrating that either Bradford or Morrow were responsible for
7
no clerk being present or the library being closed that day, or were in charge of staffing the library
8
or ensuring that a replacement librarian was available to cover Bradford’s absence.
9
Plaintiff contends he was not again called to the law library before he was transferred out
10
to court on November 8, 2007, which again prevented him from filing objections. However, it
11
does not appear that plaintiff requested PLU status after the September 28, 2007 deadline ran and
12
before he was transferred out to court on November 8, 2007. Defendant Bradford testified that
13
when she granted plaintiff’s September 14, 2007 PLU request, she set the deadline as September
14
28, 2007, because it was the later of the two deadlines provided in the Report &
15
Recommendations. (Bradford Dep. at 165-66.) Inmates can only be given PLU status “once at a
16
time.” (Bradford Dep. at 165.) After that deadline expires, the inmate must again apply for PLU
17
status. Unless plaintiff was granted PLU status after he was unable to access the law library on
18
September 26, 2007, defendants Bradford and Morrow were under no obligation to call or escort
19
plaintiff to the library thereafter.
20
On September 27, 2007, plaintiff opted to seek an extension of time from the habeas
21
court, which granted a revised deadline of November 7, 2007, to file objections. But plaintiff did
22
not receive such order until November 6, 2007. Because his mail was delayed, plaintiff was
23
deprived of his ability to file a new request for PLU status based on the new deadline. However,
24
the mail delay cannot be attributed to either defendant Bradford or Morrow, who had no
25
involvement in the processing or delivery of plaintiff’s mail.
26
Plaintiff then immediately sought another extension of time to file objections, but his
27
request was not received by the habeas court, but not because of acts or omissions by defendants
28
Bradford or Morrow. Plaintiff was then transferred out to court on November 8, 2007, without
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1
his legal materials.
2
Thus, the undersigned cannot find that defendants Bradford or Morrow were responsible
3
for plaintiff’s inability to attend the law library after September 28, 2007, and before he was
4
transferred out to court on November 8, 2007.
5
E. Qualified Immunity
6
1. Legal Standards
7
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-pronged test to
8
determine whether qualified immunity exists. First, the court asks: “Taken in the light most
9
favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated
10
a constitutional right?” Id. at 201. If “a violation could be made out on a favorable view of the
11
parties’ submissions, the next, sequential step is to ask whether the right was clearly established.”
12
Id. To be “clearly established,” “[t]he contours of the right must be sufficiently clear that a
13
reasonable official would understand that what he is doing violates that right.” Id. at 202 (internal
14
quotation marks and citation omitted). Accordingly, for the purposes of the second prong, the
15
dispositive inquiry “is whether it would be clear to a reasonable officer that his conduct was
16
unlawful in the situation he confronted.” Id. Courts have the discretion to decide which prong to
17
address first, in light of the particular circumstances of each case. See Pearson v. Callahan, 555
18
U.S. 223, 236 (2009).
2. Morrow and Bradford: 2007 Access to the Courts Claims
19
20
The Parties’ Positions
21
Defendants contend they are entitled to qualified immunity. (ECF No. 220-1 at 39) (citing
22
J’Weial v. Gyles, 2019 WL 5862208 at *4-5 (E.D. Cal. Nov. 18, 2019), adopted, 2019 WL
23
6894273 (E.D. Cal. Dec. 18, 2018).) In Gyles, a civil rights prisoner alleged that he could not
24
adequately prepare his defense because he was denied PLU status. Id. Gyles was entitled to
25
qualified immunity because the Supreme Court, in the context of a habeas petition, found that
26
“federal appellate courts have split on whether Faretta 24 implies a right of the pro se defendant to
27
28
24
Faretta v. California, 422 U.S. 806 (1975) (establishing a Sixth Amendment right to selfrepresentation).
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have access to a law library.” Gyles, 2019 WL 5862208 at *4 (citing Kane v. Garcia Espitia, 546
2
U.S. 9, 10 (2005).) Thus, defendants argue it was not clearly established that pro se defendants
3
had a right to access the law library in 2007.
4
5
Plaintiff’s Opposition
Plaintiff argues that defendants “confuse a lack of a clearly established right of access to a
6
law library with the clearly established right of access to the courts that can be violated by
7
inadequate library access.” (ECF No. 230 at 44) (citing Lewis, 518 U.S. at 346). The court in
8
Gyles observed that in Lewis, the Supreme Court recognized that prisoners in Lewis could have
9
raised an access to court claim based on an insufficient prison library if the insufficiency “actually
10
hindered their effort to pursue legal claims.” Gyles, 2019 WL 5862208, at *4. Finally, plaintiff
11
contends that Gyles is not relevant because the prisoner raised a claim for violation of the Sixth
12
Amendment right to prepare an adequate defense,” Gyles, at *3, not that prison staff actively
13
interfered with the prisoner’s ability to litigate his habeas case in violation of the First and
14
Fourteenth Amendments. (ECF No. 230 at 44-45.)
15
Reply
16
Defendants counter that plaintiff cites no controlling authority that would put reasonable
17
prison officials on notice that, in the specific context of defendants’ conduct, it would have been
18
beyond debate that their actions would violate plaintiff’s constitutional rights, instead relying on
19
general access to the court cases. (ECF No. 236 at 10.)
20
Discussion
21
Plaintiff defines the clearly established law too broadly, as argued by defendants. “The
22
dispositive question is whether the violative nature of particular conduct is clearly established.
23
This inquiry must be undertaken in light of the specific context of the case, not as a broad general
24
proposition.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotations and citations omitted).
25
Prisoners have a constitutional right of access to the courts. See Lewis, 518 U.S. at 350;
26
Bounds, 430 U.S. at 821. But Bounds and Lewis do not address the right to litigate without
27
active interference. Bounds established a prisoner’s right to affirmative assistance, holding that
28
“the fundamental constitutional right of access to the courts requires prison authorities to assist
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1
inmates in the preparation and filing of meaningful legal papers by providing prisoners with
2
adequate law libraries or adequate assistance from persons trained in the law.” Bounds, 430 U.S.
3
at 828. In Lewis, the Supreme Court limited prisoners’ rights to affirmative assistance to the
4
pleading stage. Silva, 658 F.3d at 1103. But no party cited, and this court has not found, a
5
Supreme Court case that addresses the boundaries of active interference with a prisoner’s right to
6
litigate.
7
The Court looks next to existing Ninth Circuit law. “The Ninth Circuit first recognized a
8
First Amendment right to access courts without interference in Silva.” Norton v. Hallock, 2018
9
WL 5629345, at *5 (N.D. Cal. Oct. 29, 2018) (citing Silva, 658 F.3d at 1103) (“we hold that
10
prisoners have a right under the First and Fourteenth Amendments to litigate claims challenging
11
their sentences or the conditions of their confinement to conclusion without active interference by
12
prison officials”). Silva was decided in 2011, years after the events at issue here, and therefore
13
does not provide clearly established authority for plaintiff. But more importantly, plaintiff’s
14
reliance on Silva (or cases cited therein) is unavailing because none of them address the conduct
15
at issue here: whether it was clearly established that prison staff actively interfere with a
16
prisoner’s access to the courts by failing to call the prisoner to the law library on 1 or 2 days. 25
“District courts within the Ninth Circuit have also interpreted ‘active interference’ to
17
18
require something more than negligence but those courts have also not clearly defined the
19
boundaries of ‘active interference.’” Norton, 2018 WL 5629345, at *6 (collecting cases). “Other
20
circuits also have not defined or otherwise determined the boundaries of ‘active interference,’ and
21
25
22
23
24
25
26
27
28
In Silva, the defendants were alleged to have acted with malicious intent by transferring Silva
between different facilities and seizing and withholding Silva’s legal files for the purpose of
interfering with Silva’s ability to litigate pending civil lawsuits. Silva, 658 F.3d at 1102-03
(finding that such alleged facts stated a First Amendment claim sufficient to survive motion to
dismiss). While the Ninth Circuit recognized “that prisoners’ First and Fourteenth Amendment
rights to access the courts without undue interference extend beyond the pleading stages,” the
cited cases do not involve prison staff’s failure to call or escort a prisoner to the law library.
Silva, 658 F.3d at 1103. Rather, the cases cited in Silva alleged affirmative conduct interfering
with the prisoner’s ability to litigate his appeal. Vigliotto v. Terry, 873 F.2d 1201, 1202 (9th Cir.
1989)(“a defendant is deprived of due process if prison authorities confiscate the transcript of his
state court conviction before appeal”); DeWitt v. Pail, 366 F.2d 682, 685 (9th Cir. 1966) (prisoner
alleged that defendant Pail had confiscated DeWitt’s copy of a transcript on appeal and other
legal papers, preventing him from pursuing his direct appeal).
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1
those that have discussed it are similar to Silva in recognizing that ‘active interference’ requires
2
malicious or deliberate intent.” Norton, 2018 WL 5629345, at *6 (collecting cases). None of the
3
cases cited by the district court in Norton addressed the failure of prison staff to call or escort the
4
prisoner to the law library. None of these cases place beyond debate the constitutional question
5
of whether a prison staff’s failure to call a prisoner to the law library, without more, actively
6
interferes with a prisoner’s right to litigate such that it denies the right to access the courts.
7
Even if plaintiff adduced evidence that both defendants Bradford and Morrow intentionally
8
prevented plaintiff from accessing the law library on September 19, 2007, it was not clearly
9
established, either in 2007 or even now, that a prison official’s intentional failure to call or escort
10
a prisoner to the law library on one occasion, without more, actively interferes with a prisoner’s
11
right to litigate such that it denies the right to access the courts. See Brown v. Oregon Dep’t of
12
Corr., 751 F.3d 983, 990 (9th Cir. 2014) (finding defendants are not liable for violation of right
13
that was not clearly established at time violation occurred). Accordingly, defendants Bradford
14
and Morrow are entitled to qualified immunity on plaintiff’s 2007 access to the court claims.
15
Finally, even assuming, arguendo, that plaintiff challenged the actions of defendants
16
Bradford and Morrow based solely on a denial of access to the library claim, defendants would
17
also be entitled to summary judgment. “[T]he constitutional right of access requires a state to
18
provide a law library or legal assistance only during the pleading stage of a habeas or civil rights
19
action.” Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995). In Silva, the Ninth Circuit
20
confirmed that in Cornett, the court “only refers to claims involving library access and legal
21
assistance.” Silva, 658 F.3d at 1103. “In the leading case on the right of access, the Supreme
22
Court continued to state that its ‘main concern’ was ‘protecting the ability of an inmate to prepare
23
a petition or complaint.’” Cornett, 51 F.3d at 898, quoting Bounds, 430 U.S. at 828 n.17 (internal
24
quotation and citation omitted). In 2007, plaintiff was only constitutionally guaranteed access to
25
the library at the pleading stage of his habeas case. Thus, it was not clearly established that in
26
2007 plaintiff was entitled to library access to prepare objections or a certificate of appealability
27
to file in his pending habeas action.
28
Accordingly, defendants Bradford and Morrow are also entitled to qualified immunity.
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1
2
3
VI. Plaintiff’s Retaliation Claims
Plaintiff raises retaliation claims as to defendants Salas and Lynch; thus, the undersigned
first sets forth the governing standards, and will then address each defendant in turn.
4
A. Legal Standards Governing Retaliation Claims
5
It is well established that “[p]risoners have a First Amendment right to file grievances
6
against prison officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d
7
1108, 1114 (9th Cir. 2012). “Within the prison context, a viable claim of retaliation entails five
8
basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)
9
because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s
10
exercise of his First Amendment or other rights, and (5) the action did not reasonably advance a
11
legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)
12
(footnote and citations omitted). To prove the second element, retaliatory motive, plaintiff must
13
show that his protected activities were a “substantial” or “motivating” factor behind the
14
defendant’s challenged conduct. Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting
15
Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). Plaintiff must provide
16
direct or circumstantial evidence of a defendant’s alleged retaliatory motive; mere speculation is
17
not sufficient. See McCollum, 647 F.3d at 882-83; accord Wood v. Yordy, 753 F.3d 899, 905
18
(9th Cir. 2014). In addition to demonstrating defendant’s knowledge of plaintiff’s protected
19
conduct, circumstantial evidence of motive may include: (1) proximity in time between the
20
protected conduct and the alleged retaliation; (2) defendant’s expressed opposition to the
21
protected conduct; and (3) other evidence showing that defendant’s reasons for the challenged
22
action were false or pretextual. McCollum, 647 F.3d at 882 (quoting Allen v. Iranon, 283 F.3d
23
1070, 1077 (9th Cir. 2002)); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring
24
retaliatory motive from circumstantial evidence).
25
The mere threat of harm can be a sufficiently adverse action to support a retaliation claim.
26
Shepard v. Quillen, 840 F.3d 686, 688-89 (9th Cir. 2016); Brodheim, 584 F.3d at 1270. A
27
retaliation claim can also be made by a prisoner for adverse actions against him for making
28
written or verbal threats to sue, because such threats “fall within the purview of the
77
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1
constitutionally protected right to file grievances.” Entler v. Gregoire, 872 F.3d 1031, 1039 (9th
2
Cir. 2017) (district court erred in finding that prisoner did not state a First Amendment retaliation
3
claim for prison’s disciplinary actions against him for making threats of legal action if his
4
grievances were not addressed).
5
Retaliation claims brought by prisoners must be evaluated in light of concerns over
6
“excessive judicial involvement in day-to-day prison management, which ‘often squander[s]
7
judicial resources with little offsetting benefit to anyone.’” Pratt v. Rowland, 65 F.3d 802, 807
8
(9th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). In particular, courts
9
should “‘afford appropriate deference and flexibility’ to prison officials in the evaluation of
10
proffered legitimate penological reasons for conduct alleged to be retaliatory.” Pratt, 65 F.3d at
11
807 (quoting Sandin, 515 U.S. at 482).
12
B. Defendant Salas
13
Undisputed Facts
14
1. Officer Salas was a Correctional Officer at CSP-SAC from about 1993 to November
15
2011. During part of this time, including during 2008, Salas was assigned as the administrative
16
segregation property officer.
2. Officer Salas did not work in the mail room or appeals office during his employment at
17
18
CSP-SAC in 2007 to 2008. (ECF No. 220-4 at 164 (Salas Decl. ¶¶ 1-3) (DEF 159-60).) 26
19
3. Officer Salas was not aware the plaintiff had filed a grievance related to his mail or
20
legal mail or legal problems. Salas did not participate in and was not aware of plaintiff’s mail
21
related or legal related grievances. (Salas Decl. ¶¶ 2 & 5, DEF 159-60.) 27
22
26
23
24
25
26
27
28
Plaintiff disputes this fact based on Salas’ deposition testimony that at some point in his career,
it was “possible” he worked in a mail room, and earlier in his career he had to deliver mail to
inmates in their cells. (ECF No. 230 at 45, citing Salas’ Dep. at 23-24, 44-45.) But defendant
Salas testified that he stopped doing that “in the 90s, ‘95 or something,” and did not recall ever
distributing mail after 2008. (Salas Dep. at 45.) Salas also testified that in 2007-2008, he worked
as the property officer for the ad seg unit, and had a caged area in the receiving and release area.
(Salas’ Dep. at 24-25; 44-45.)
27
Plaintiff disputes this fact (ECF No. 230-2 at 33), but points to no competent evidence
demonstrating that defendant Salas was aware plaintiff had filed a grievance related to his legal or
personal mail, or legal problems.
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4. Mail and annual or quarterly packages are not processed the same. Mail is processed
2
through the mailroom; quarterly and annual packages go through the receiving warehouse to
3
receiving and release. The packages are put on a pallet and brought to receiving and release by
4
truck. A package officer then distributes packages to inmates. (Salas Decl ¶ 4, DEF 160.)
5
5. Salas responded at the informal level to an inmate appeal regarding plaintiff’s 2008
6
annual package. The September 23, 2008 informal response written by defendant Salas states:
7
“Penton my records indicate that your D-status started 6-19-08. However, it was determined to
8
be incorrect. Therefore, your annual package was unintentionally sent back to the vendor based
9
on my records. You are eligible to receive an annual package at this point of your appeal. I am
10
unable to determine reimbursement for the charges.” (ECF No. 231 at 181 (PENTON_
11
SALAS00003.); see also (Salas Decl. ¶¶ 6-10, 12 (Ex. A), DEF 160-161, 164, 163-66.)
12
6. Inmates in privilege group D are eligible to receive one personal property package per
13
year. Inmates shall be eligible to acquire a personal property package after completion of one
14
year of privilege group D assignment. (Salas Decl. ¶¶ 8-9 & 11, DEF 161.)
15
7. Defendant Salas consistently testified that he miscalculated plaintiff’s arrival date.
16
(Salas Dep. at 76, 78, 88-89, 90, 92.) In his declaration, Salas explained that if the records
17
mistakenly indicated that plaintiff’s D status started on June 19, 2008, then plaintiff would not
18
have completed one year of privilege group D assignment as of September 2008, and would not
19
have been eligible for an annual package in 2008. (Salas Decl. ¶¶ 8-9 & 11, DEF 161.)
20
Plaintiff disputes that the package was returned in error, citing Salas’ testimony that the
21
criteria for sending back packages is “pretty accurate” and “not complicated,” and that in all his
22
time as a property officer, he could “only think of this one occurrence with Mr. Penton” where he
23
made this mistake. (Salas Dep. at 85:4-20; 101:4-9.)
24
Discussion
25
While plaintiff is correct that retaliatory motive can be proven by circumstantial evidence,
26
“a plaintiff must show that his protected conduct was the substantial or motivating factor behind
27
the defendant’s conduct.” Brodheim, 584 F.3d at 1271 (internal quotation marks omitted)
28
(quoting Soranno’s, 874 F.2d at 1314). Here, plaintiff failed to demonstrate a causal connection
79
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1
between the return of plaintiff’s annual package and plaintiff’s protected conduct. Indeed,
2
plaintiff adduced no evidence demonstrating that defendant Salas was even aware of plaintiff’s
3
protected conduct. Plaintiff points to no personal interaction with defendant Salas or other
4
evidence showing such causal connection. Plaintiff makes much of defendant Salas’ deposition
5
testimony that it was “possible” he had been assigned other duties while working at CSP-SAC,
6
but plaintiff fails to acknowledge defendant Salas’ later testimony that he did not work in the mail
7
room in 2007 or 2008; that his mail duties likely ended in the 1990s, or that Salas’ “duties were
8
ad seg property specific.” (Salas Dep. at 120). But even assuming it was “possible” that
9
defendant Salas worked in the mail room, such “possibility” is insufficient to demonstrate that
10
defendant Salas worked in the mail room at a time where he would have seen one of plaintiff’s
11
grievances such that he became aware of plaintiff’s protected conduct. That is an inference too
12
far. Thus, even assuming the court could infer a retaliatory motive from defendant Salas’
13
acknowledgment that he had never returned a package for any inmate other than plaintiff, there is
14
no evidence demonstrating a source for a retaliatory motive. There is no triable issue of material
15
fact as to whether defendant Salas was aware of plaintiff’s protected conduct. There is simply no
16
evidence that Salas was aware.
17
Plaintiff points to Salas’ testimony that the reason he did not fix his mistake was that
18
plaintiff had already filed a grievance concerning the missing package. Plaintiff argues that such
19
concession illustrates a pattern of retaliatory intent. (ECF No. 230 at 46.) Defendant Salas did
20
testify that the issue could have been eliminated by talking to plaintiff cell-side, because Salas
21
could have called the vendor, but because plaintiff had already filed his grievance, “it went over
22
[Salas’] jurisdiction.” (Salas Dep. at 101-02.) But, again, plaintiff failed to demonstrate that
23
defendant Salas was aware of plaintiff’s protected conduct before Salas returned plaintiff’s
24
package, or before he failed to attempt to resolve the issue by meeting with plaintiff cell-side
25
because Salas believed the pending grievance took it out of Salas’ hands. There is no
26
demonstrated pattern of retaliatory intent in connection with Salas’ conduct. Therefore,
27
defendant Salas is entitled to summary judgment on plaintiff’s retaliation claim.
28
////
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1
C. Defendant Lynch
2
Undisputed Facts
3
1. Defendant Lynch was assigned to CSP-SAC as a Correctional Counselor I from April
4
2006 to about October 2009. (ECF No. 220-5 at 145 (Lynch Decl.) (DEF 322).) As a
5
Correctional Counselor I, Lynch would not present cases for committee review regarding
6
housing, rehabilitation programs, custody level or similar issues. Lynch would talk with inmates
7
beforehand to discuss possible outcomes of committee decisions and take the inmates’ input for
8
possible committee actions. (ECF No. 220-5 at 146 (DEF 323).)
9
2. As a Correctional Counselor I, part of Lynch’s job was to inform inmates that transfers
10
are a possibility based on their program eligibility, classification, housing status and similar
11
factors. 28 (ECF No. 220-5 at 146 (DEF 323).)
3. Inmate transfers are determined at the committee level. (ECF No. 220-5 at 146-47
12
13
(DEF 323-24).) Specifically, an institutional classification committee would determine an
14
inmate’s transfer to another institution based on the various factors including the inmate’s
15
disciplinary history (or lack thereof) during the relevant time, as well as the inmate’s input, such
16
as requests to transfer closer to their home or to an institution with different programming
17
opportunities. Inmates are notified in writing if a committee were to consider a transfer for the
18
inmate. The only way an inmate could be approved for a transfer is through a committee
19
decision. (Id.)
20
Law of the Case
21
Initially, plaintiff argues that plaintiff’s retaliation claim survives summary judgment
22
23
24
25
26
27
28
based on the court’s ruling on defendants’ motion for judgment on the pleadings, citing the law of
28
Plaintiff claims this fact is disputed, citing testimony from the depositions of plaintiff and
defendant Lynch. (ECF No. 230-2 at 35.) But plaintiff’s testimony is that plaintiff spoke with
defendant Lynch about multiple issues, including multiple grievances, and at one of these
interactions, likely in 2008, defendant Lynch told plaintiff, “If I were you, I would try to get
transferred. You have nothing coming here.” (Pl.’s Dep. at 44.) Defendant Lynch’s testimony
was that he had many conversations with plaintiff, but did not recall ever saying “you have
nothing coming to you” to plaintiff. (ECF No. 231 at 428-29 (Lynch Dep.).) Plaintiff fails to
explain how such testimony rebuts defendant Lynch’s claimed job duties as to informing inmates
about possible transfers. The undersigned finds this fact undisputed.
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1
the case doctrine. However, plaintiff overstates the court’s December 5, 2019 order in connection
2
with plaintiff’s retaliation claim as to defendant Lynch. Plaintiff contends that the court already
3
found that “Lynch’s statement can constitute an adverse action” and that “retaliatory intent can be
4
evidenced circumstantially through the timing in which threats are made.” (ECF No. 230 at 46
5
(emphasis added).) While such statements are true, the court only found that, at the pleading
6
stage, taking plaintiff’s statements as true, plaintiff plausibly stated a cognizable retaliation claim
7
against defendant Lynch. (ECF No. 177 at 21-22.) But the undersigned also noted that
8
9
10
11
this does not mean that plaintiff would prevail on his retaliation
claims or that the evidence would support his retaliation claims as to
all five elements. Rather, the undersigned concludes that, at this
juncture, the allegations are sufficient to survive judgment on the
pleadings.
(ECF No. 177 at 22 n.8.)
12
In other words, simply because such statement can be true does not mean that plaintiff
13
adduced evidence proving the statement was an adverse action, or that its timing demonstrates
14
retaliatory intent. Thus, law of the case does not apply to this claim; rather, the undersigned
15
addresses the evidence as it applies to the five elements of the retaliation claim in the context of a
16
motion for summary judgment, which is very different from how plaintiff’s allegations are
17
viewed at the pleading stage.
18
Discussion
19
Plaintiff’s fourth amended complaint is not verified. Therefore, in order to rebut
20
defendants’ evidence, plaintiff must provide his own declaration, deposition testimony, or other
21
evidence to support each element of his retaliation claim against defendant Lynch.
22
Here, plaintiff points to his own deposition testimony. (ECF No. 230-2 at 35 (citing Pl.’s
23
Dep. at 43:5 - 44:15).) Plaintiff testified that he spoke with defendant Lynch about multiple
24
issues, including multiple grievances, and at one of these interactions, “I believe it was in 2008,”
25
defendant Lynch told plaintiff, “If I were you, I would try to get transferred. You have nothing
26
coming here.” (Pl.’s Dep. at 43-44.) Plaintiff argues that Lynch’s statements were made in the
27
fall of 2008 after plaintiff attempted to grieve the withholding of his mail using the inmate
28
appeals process. (ECF No. 230 at 46.) But plaintiff did not so testify. Rather, plaintiff gave
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1
examples of his multiple grievances: “I conveyed my concerns about ad seg placement through
2
withholding of mail to not have access to law library.” (Pl.’s Dep. at 43.) Plaintiff did not tie
3
defendant Lynch’s alleged comments to any particular conversation or grievance, but rather
4
testified that Lynch said the words “at one of the interactions.” (Pl.’s Dep. at 44.) Unlike in
5
Brodheim, where officer Cry wrote that Brodheim should be “careful” what he writes and
6
requests in his administrative grievances, defendant Lynch’s words did not warn plaintiff to stop
7
doing anything and did not specifically reference grievances, litigation, or other protected
8
conduct. Plaintiff did not provide additional context to support a finding that such comments
9
were a threat, or caused a chilling effect. Indeed, plaintiff did not testify that he considered
10
defendant Lynch’s words to be a threat or kept plaintiff from pursuing grievances. (Pl.’s Dep. at
11
40-46.)
12
But even assuming Lynch’s words alone constituted a threat, plaintiff failed to establish
13
timing such that it was plaintiff’s protected conduct that was the substantial or motivating factor
14
behind defendant Lynch’s words. In Watison, 668 F.3d at 1114-16, the prisoner alleged facts
15
connecting Officer Santos’ statements with the filing of an emergency grievance; here, plaintiff
16
did not testify to a specific causal connection between defendant Lynch’s words and plaintiff’s
17
filing of grievances. See also Hoffmann v. Jones, 2018 WL 3436830, at *6 (E.D. Cal. July 17,
18
2018) (“Plaintiff has produced evidence (his declaration and verified complaint) that defendant
19
told him he would face discipline if he continued to file grievances, and that defendant
20
“approved” his grievance about the pipes as a way of preventing further review.”), adopted 2018
21
WL 4629408 (E.D. Cal. Sept. 27, 2018). The fact that plaintiff and defendant Lynch generally
22
discussed plaintiff’s grievances, without more, fails to demonstrate a triable dispute of fact exists
23
as to such causal connection. Moreover, it is undisputed that any transfer required committee
24
review, so defendant Lynch could not have ordered plaintiff to be transferred, and plaintiff does
25
not allege that he was transferred. Because defendant Lynch could not order transfers, defendant
26
Lynch’s words alone cannot be construed as an implicit threat to have plaintiff transferred. 29
27
28
29
In his opposition to the motion for judgment on the pleadings, plaintiff argued that defendant
Lynch’s statements “carried the implicit threat that his rights would continue to be violated and
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1
Finally, plaintiff has not adduced evidence demonstrating a chronology of events from
2
which retaliation can be inferred, or that defendant Lynch spoke such words to plaintiff because
3
plaintiff attempted to file inmate grievances.
4
5
Accordingly, defendant Lynch is entitled to summary judgment on plaintiff’s retaliation
claim.
6
Qualified Immunity
7
“Qualified immunity shields government officials from civil damages liability unless the
8
official violated a statutory or constitutional right that was clearly established at the time of the
9
challenged conduct.” Taylor v. Barkes, 575 U.S. 822, 825 (2015), quoting Reichle v. Howards,
10
566 U.S. 658, 132 U.S. 2088, 2093 (2012). As noted above, the inquiry involves two prongs: did
11
the officer’s conduct violate a constitutional right, and second, was the constitutional right clearly
12
established? For a right to be clearly established, “[t]he contours of the right must be sufficiently
13
clear that a reasonable official would understand that what he is doing violates that right.”
14
Anderson v. Creighton, 483 U.S. 635, 640 (1987). As noted above, the undersigned has
15
discretion over which prong to address first, in light of the particular circumstances of each case.
16
See Pearson, 555 U.S. at 236.
17
Discussion
18
Plaintiff contends that defendant Lynch is not entitled to qualified immunity because it
19
was clearly established that an inmate has the right to be free from retaliation. (ECF No. 230 at
20
48.) But plaintiff characterizes the clearly established right too generally. “A clearly established
21
22
23
24
25
26
27
28
that [plaintiff] was no longer welcome at CSP-SAC and would face harm if he did not try to
transfer or cease his attempts to vindicate his rights,” and would chill a person of ordinary
firmness from using the grievance process. (ECF No. 171 at 30-31.) Plaintiff cited Holley v.
California Department of Corrections, 2005 WL 1489858, at *2 (E.D. Cal. June 21, 2005), to
support such opposition, because the court found Holley stated a retaliation claim based in part on
officer Herrera telling Holley, “you damn litigators don’t have nothing coming.” Id. Here,
however, plaintiff did not testify that he viewed defendant Lynch’s statements the way counsel
previously characterized them. (Pl.’s Dep. at 40-46.) In addition, Holley is distinguishable
because at the time Herrera made the statement, Herrera “refused to obtain medical care on
[Holley’s] behalf.” Holley, 2005 WL 1489858, at *2. Thus, unlike here, there was a clear
adverse action connected with the verbal threat explicitly referencing litigation, Holley’s
protected conduct. No such link exists in this case.
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1
right is one that is ‘sufficiently clear that every reasonable official would have understood that
2
what he is doing violates that right.’” Mullenix, 577 U.S. at 11 (quoting Reichle, 566 U.S. at
3
664). “[E]xisting precedent must have placed the statutory or constitutional question beyond
4
debate.” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted).
5
Here, it was not until 2009 that the Ninth Circuit found that in the retaliation context, a
6
prisoner did not need to establish that the prison guard’s statement contained an explicit threat of
7
discipline or transfer, because “[b]y its very nature, a statement that ‘warns’ a person to stop
8
doing something carries the implication of some consequence of a failure to heed that warning.”
9
Brodheim, 584 F.3d at 1270. Finding that “[t]he power of a threat lies not in any negative actions
10
eventually taken, but in the apprehension it creates in the recipient of the threat,” the Ninth
11
Circuit reversed the district court’s finding that the prisoner had produced inadequate evidence of
12
an adverse action. Id. at 1271.
As noted above, plaintiff testified that defendant Lynch told plaintiff that “If I were you, I
13
14
would try to get transferred. You have nothing coming here.” (Pl.’s Dep. at 44.) Viewing the
15
alleged statement in the light most favorable to plaintiff, taking his version of what defendant
16
Lynch said as true, and construing, arguendo, defendant Lynch’s statements to be a “threat”
17
sufficient to constitute an adverse action, Brodheim was not decided until 2009. Thus, even if
18
defendant Lynch’s words constituted a threat of retaliation, it would not be clear to a reasonable
19
prison official as of 2008 that such words would deter plaintiff’s protected conduct and chill a
20
person of ordinary firmness. Thus, defendant Lynch is entitled to qualified immunity on
21
plaintiff’s retaliation claim. 30
22
VII. Conclusion
23
24
Accordingly, IT IS HEREBY ORDERED that defendants’ request for judicial notice
(ECF No. 220-3) is granted.
25
26
27
28
Further, IT IS RECOMMENDED that the motion for summary judgment (ECF No. 220)
filed by defendants Bradford, Donahoo, Gaddi, Lynch, Morrow, Salas, Virga, and Walker be
30
Because defendant Lynch is entitled to qualified immunity, the court need not address
defendant’s statute of limitations argument.
85
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1
granted in part and denied in part, as follows:
2
1. Defendants’ motion for summary judgment based on plaintiff’s alleged failure to
3
exhaust administrative remedies as to plaintiff’s access to courts and interference with mail
4
claims be denied;
5
2. Defendant Bradford be granted summary judgment on plaintiff’s claim that defendant
6
Bradford wrongfully denied plaintiff’s 2008 request for PLU status, based on plaintiff’s failure to
7
exhaust administrative remedies.
8
9
3. Defendant Lynch be granted summary judgment based on plaintiff’s failure to exhaust
administrative remedies.
10
11
4. Defendants Walker, Virga, Donahoo, and Gaddi be granted summary judgment on
plaintiff’s access to the courts and interference with mail claims.
12
13
5. Defendants Bradford and Morrow be granted summary judgment on plaintiff’s 2007
access to the courts claims.
14
15
6. Defendants Bradford and Morrow be granted qualified immunity on plaintiff’s 2007
access to the courts claims.
16
17
7. Defendants Salas and Lynch be granted summary judgment on plaintiff’s retaliation
claims;
18
8. Defendant Lynch be granted qualified immunity on plaintiff’s retaliation claim;
19
These findings and recommendations are submitted to the United States District Judge
20
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after
21
being served with these findings and recommendations, any party may file written objections with
22
the court and serve a copy on all parties. Such a document should be captioned “Objections to
23
Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be
24
filed and served within fourteen days after service of the objections. The parties are advised that
25
failure to file objections within the specified time may waive the right to appeal the District
26
Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
27
Dated: August 11, 2021
28
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