Harrison v. Linde, et. al.

Filing 90

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/30/2015 RECOMMENDING that defendants' 79 motion for summary judgment be granted. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARL F. HARRISON,

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Plaintiff,

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No. 2:13-cv-1510 KJM CKD P

v.

FINDINGS & RECOMMENDATIONS

LINDE, et al.,

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Defendants.

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I. Introduction

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This pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983 proceeds on the

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complaint filed July 31, 2013 against defendants Linde and Simpson.1 (ECF No. 1.) Plaintiff

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claims that defendants violated his First Amendment right to access the courts, as they disposed

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of his legal documents while an appeal in his federal habeas case was pending. (Id.)
Before the court is defendants’ May 5, 2014 motion for summary judgment. (ECF No.

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79.) Plaintiff has filed an opposition. (ECF No. 85.) Having carefully reviewed the record and

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the applicable law, the undersigned will recommend that defendants’ motion be granted.

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Plaintiff’s claims against two other defendants were severed and are the subject of a separate
action. (ECF No. 46.)
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II. Summary Judgment Standard

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Summary judgment is appropriate when it is demonstrated that there “is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by

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“citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R.

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Civ. P. 56(c)(1)(A).

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Summary judgment should be entered, after adequate time for discovery and upon motion,

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against a party who fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at trial. See

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an

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essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”

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Id.

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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 631. 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 the summary judgment motion, the evidence of the opposing party is to be

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believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the

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facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475

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U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

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obligation to produce a factual predicate from which the inference may be drawn. See Richards

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v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902

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(9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than
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simply show that there is some metaphysical doubt as to the material facts . . . . Where the record

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taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

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‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

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III. Facts

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The following facts are undisputed2:

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Plaintiff is a state prisoner who, at all relevant times, was housed at Mule Creek State

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Prison. In 1994, a Fresno jury convicted plaintiff of multiple counts of sexual offenses against

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minors, for which plaintiff was sentenced to 121 years in prison. In the years that followed,

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petitioner challenged his convictions through direct appeals and successive petitions for writs of

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habeas corpus in the California courts.

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In January 2003, plaintiff filed a petition for writ of habeas corpus in the U.S. District

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Court for the Eastern District of California, invoking 28 U.S.C. § 2254(a).3 Petitioner raised 46

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claims for relief in his original and amended petitions. The matter was litigated on the merits, and

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thousands of pages of arguments and evidence were entered into the record. In February 2009,

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the district court denied all claims in plaintiff’s petition in a 66-page memorandum opinion and

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order. At the conclusion of the order, the district court noted that plaintiff could not proceed with

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an appeal of the judgment “absent a certificate of appealability,” which the district court declined

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to issue as it found no denial of a constitutional right.4 Judgment was entered and the case closed.

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Several weeks later, defendants Correctional Sergeant Linde and Correctional Officer

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Simpson confiscated twelve boxes of plaintiff’s personal property from his cell at MCSP. The

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boxes contained legal papers and reading and writing materials. Plaintiff asserts, and the court

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assumes for purposes of the motion, that the boxes contained legal materials relating to Harrison

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See ECF No. 79-2 (Defendants’ Statement of Undisputed Facts) and ECF No. 85 at 44-47
(Plaintiff’s Statement of Disputed Facts).

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See docket of Harrison v. Mule Creek State Prison, Case No. 1:03-cv-5122 OWW WMW (E.D.
Cal.). A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803
F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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v. Mule Creek State Prison and other claims that plaintiff intended to pursue in court. The parties

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dispute the circumstances under which these materials were confiscated, inventoried, and

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discarded on March 18, 2009.

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On March 16, 2009, the U.S. Court of Appeals for the Ninth Circuit docketed plaintiff’s

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appeal of the district court’s judgment.5 That day, the Ninth Circuit issued a letter to plaintiff

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stating that “[a] briefing schedule will not be set until the court determines whether a certificate of

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appealability should issue.” See Ninth Circuit Rule 22-1(e) (“Petitioners shall only brief issues

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certified by the district court or the court of appeals.”). In making the determination whether a

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certificate of appealability (COA) should issue, the Ninth Circuit had before it the entire record

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that the district court relied on in making its findings. See Harrison, Dkt. Entry 3; Ninth Circuit

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Rule 22-1(b) (“If the district court denies a COA in full in a § 2254 proceeding . . . , the district

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court clerk shall forward the entire record to the court of appeals.”).
On September 29, 2010, the Ninth Circuit denied plaintiff’s request for a certificate of

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appealability. It did so without having requested briefing by the parties. On November 18, 2010,

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the Ninth Circuit denied plaintiff’s motion to reconsider the denial of a COA, and ordered that

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“no further filings” would be accepted in this “closed case.”

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IV. Analysis

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Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey,

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518 U.S. 343, 346 (1996); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). The right of access

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to the courts is merely the right to bring to court a grievance the inmate wishes to present, and is

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limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at

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354. A prisoner alleging a violation of his right of access to the courts must demonstrate that he

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has suffered “actual injury.” Lewis, 518 U.S. at 349-50. The actual-injury requirement mandates

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that an inmate “demonstrate that a nonfrivolous legal claim had been frustrated or was being

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impeded.” Id. at 353. “Actual injury is a jurisdictional requirement that flows from the standing

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doctrine and may not be waived. It is actual prejudice with respect to contemplated or existing

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See docket of Harrison v. Mule Creek State Prison, Appeal No. 09-15492 (9th Cir.).
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litigation, such as the inability to meet a filing deadline or to present a claim.” Nevada Dept. of

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Corrections v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011), citing Lewis, 518 U.S. at 343, 348

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(internal quotation marks omitted).

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Here, plaintiff has not created a genuine dispute of fact as to whether the destruction of his

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legal materials caused him actual injury. Based on the voluminous record in his federal habeas

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action, first the district court, and then the Ninth Circuit, denied petitioner a COA – both

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effectively determining that petitioner did not present a “nonfrivolous legal claim” on appeal.

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Although petitioner’s appeal was pending when his case materials were discarded, he did not miss

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a deadline, or lose the opportunity to present a claim, as a result. Nor has plaintiff shown that he

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was “actually injured” with respect to any potential, non-frivolous claim that had not been

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litigated in the fifteen years since his conviction.

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As plaintiff fails to make the necessary showing on the “actual injury” element of his

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access-to-courts claim, the court need not reach whether there is a genuine dispute of fact as to

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other elements, nor defendants’ argument that they are entitled to qualified immunity.

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Accordingly, IT IS HEREBY RECOMMENDED that defendants’ motion for summary
judgment (ECF No. 79) be granted.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 30, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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