Cordero v. Guzman et al

Filing 65

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/17/2015 GRANTING defendants' 61 motion for an extension of time to file a reply; DENYING plaintiff's 59 motion to amend; AND RECOMMENDING that d efendants' 50 summary judgment motion be granted as to defendants Mejia, Vincent, Smith and Bargarin, and as to plaintiff's negligence claim against defendant Guzman; and denied as to plaintiff's federal claims against defendants Guzman and Parra. Referred to Judge John A. Mendez; 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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RANDY M. CORDERO,

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Plaintiff,

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No. 2:13-cv-1551 JAM KJN P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

NICK GUZMAN, et al.,

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Defendants.

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I. Introduction
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is defendants’ motion for summary judgment.

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(ECF No. 50.) Defendants move for summary judgment as to the merits of plaintiff’s claims, but

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also on the grounds that plaintiff failed to exhaust administrative remedies.
On February 2, 2015, plaintiff filed an opposition. (ECF No. 60.) On February 9, 2015,

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defendants filed a motion for an extension of time to file their reply to plaintiff’s opposition.

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(ECF No. 61.) On February 17, 2015, defendants filed the reply. (ECF No. 62.) Good cause

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appearing, defendants’ motion for extension of time to file the reply is granted and the reply is

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deemed timely filed.
Also pending is plaintiff’s motion to file an amended complaint. (ECF No. 59.)

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After carefully reviewing the record, the undersigned recommends that defendants’

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summary judgment motion be granted in part and denied in part. Plaintiff’s motion to amend is

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denied.

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II. Legal Standard for Summary Judgment

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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).

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Under summary judgment practice, the moving party always bears the initial responsibility of

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informing the district court of the basis for its motion, and identifying those portions of “the

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pleadings, depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P.

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56(c)).

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“Where the nonmoving party bears the burden of proof at trial, the moving party need

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only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing

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Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376,

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387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory

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committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial

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burden of production may rely on a showing that a party who does have the trial burden cannot

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produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment

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

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make a showing sufficient to establish the existence of an element essential to that party’s case,

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and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.

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“[A] complete failure of proof concerning an essential element of the nonmoving party’s case

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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
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).

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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 Anderson, 477 U.S. at

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255. All reasonable inferences that may be drawn from the facts placed before the court must be

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drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences

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are not drawn out of the air, and it is the opposing party’s obligation to produce a factual

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predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.

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Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to

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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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By contemporaneous notice provided on November 23, 2013, (ECF No. 26), plaintiff was

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advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal

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Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc);

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Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

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III. Plaintiff’s Claims

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This action is proceeding on the original complaint filed July 16, 2013, as to defendants

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Bugarin, Guzman, Mejia, Parra, Smith and Vincent. (ECF No. 4.) Plaintiff’s complaint is not

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verified.

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Plaintiff alleges that all defendants violated his constitutional rights. Plaintiff also alleges
a state law claim for negligence against defendant Guzman.

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Defendant Mejia

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Plaintiff alleges that on November 8, 2011, at approximately 1040 hours, inmate Bonner,

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who is African-American, assaulted plaintiff at High Desert State Prison (“HDSP”). (Id. at 4.) In

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response, Correctional Officer Boyd ordered the yard to “get down.” (Id.) After the “get down”

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order, inmate Bates, who is African-American, joined in the assault on plaintiff. (Id.) Inmate

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Amparo also joined the skirmish, attempting to assist plaintiff. (Id.)

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In response to the altercation, Correctional Officer Gardiner aimed his 40 mm launcher at

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the right thigh of inmate Bonner and discharged one impact round. (Id.) This round did not

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strike anyone. (Id.)

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The skirmish continued until plaintiff was knocked to the ground and did not get up. (Id.)

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Inmates Bonner and Bates then directed their aggression toward inmate Amparo. (Id.) Inmate

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Bonner then suddenly stopped fighting and laid in the prone position. (Id.) Inmate Bates

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continued to strike inmate Amparo. (Id.)

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Officer Gardiner then aimed his 40 mm launcher at the lower calf of inmate Bates, who
was approximately 80 feet away, and discharged one round. (Id.) The round struck inmate Bates
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in his right foot. (Id.) Inmate Bates then laid in the prone position. (Id.)
As a result of the altercation, plaintiff suffered injuries to his nose, left ear, head and neck.

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(Id.) Plaintiff was taken to Banner Lassen Hospital in Susanville, California for treatment. (Id.)

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While at the hospital, plaintiff told the two correctional officers escorting him that he could not

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return to B yard because he would be assaulted by the same inmates or their associates. (Id. at 5.)

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Sometime later, plaintiff returned to HDSP. (Id.) Prior to returning to his cell, plaintiff

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told defendant Mejia that he could not return to B yard because his safety was in jeopardy. (Id.)

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Defendant Mejia denied this request. (Id.) Defendant Mejia told plaintiff that it was getting late,

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that it was almost shift change, and that they had been ordered to return plaintiff to B yard. (Id.)

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On November 9, 2011, an unidentified correctional officer came to plaintiff’s cell and

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instructed plaintiff to sign compatibility/liability waiver chronos regarding the November 8, 2011

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incident involving inmates Bates and Bonner. (Id.)

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Defendant Guzman

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On November 9, 2011, as plaintiff returned to his cell from medical, he was assaulted by

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his cellmate, inmate Haxton. (Id.) Inmate Haxton is African-American and a known associate of

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inmates Bates and Bonner. (Id.) Plaintiff and inmate Haxton were exchanging blows when

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defendant Guzman, the Control Booth Officer, ordered the inmates in the dayroom to “get down.”

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(Id.) Defendant Guzman was either on the telephone or distracted by the telephone at the time

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inmate Haxton began assaulting plaintiff. (Id.)

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Defendant Guzman, who was approximately 45 feet away from the altercation, then aimed

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his 50 mm launcher at plaintiff and discharged one round. (Id.) The round struck plaintiff in the

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right side of plaintiff’s head. (Id.) Plaintiff alleges that defendant Guzman intentionally aimed at

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plaintiff’s head or failed to discharge his weapon in accordance with California Department of

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Corrections and Rehabilitation (“CDCR”) policy, which mandates that officers aim for the “lower

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zone.” (Id.)

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As a result of being shot, plaintiff allegedly suffered a depressed cranial fracture and

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intracranial hemorrhage, as well as brain damage that impacts plaintiff’s ability to use his left

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hand and causes vision and speech impairment. (Id.)
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Defendant Smith

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Plaintiff alleges that on December 12, 2011, defendant Smith refused to process plaintiff’s

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outgoing legal mail. (Id. at 6.) Defendant Smith returned to plaintiff’s cell and told him, “you’re

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lucky Rainey is nice to you, dumbass.” (Id.) Plaintiff alleges that defendant Smith’s refusal to

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process his mail and derogatory statement were made in retaliation for plaintiff filing a staff

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complaint against defendant Guzman. (Id.)

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Defendant Vincent

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Plaintiff alleges that on January 24, 2012, defendant Vincent was stationed outside the

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HDSP law library. (Id.) Plaintiff was using the law library in connection with his staff complaint

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against defendant Guzman. (Id.) During this time, defendant Vincent read plaintiff’s confidential

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legal papers, and then began making uneducated guesses regarding plaintiff’s litigation strategy.

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(Id.) Plaintiff asked defendant Vincent to make copies of an investigative report. (Id.)

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Defendant Vincent refused to make the requested copies. (Id.) Plaintiff alleges that defendant

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Vincent acted in retaliation against plaintiff for filing a staff complaint against defendant

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Guzman. (Id.)

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Defendant Burgarin

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On February 14, 2012, plaintiff was transferred to California State Prison-Corcoran

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(“Corcoran”). (Id. at 6.) On February 28, 2013, plaintiff informed defendant Burgarin, a

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Correctional Counselor, that he was in danger of being assaulted by the Two-Five prison gang

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and/or disruptive group. (Id.) Plaintiff attempted to give defendant Burgarin copies of CDCR

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128-B chronos documenting his safety concerns with the Two-Five gang, but defendant Burgarin

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refused to accept them. (Id.)

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Defendant Parra

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On March 5, 2013, plaintiff telephoned his attorney to discuss filing a civil suit against

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HDSP and defendant Guzman. (Id.) While on the telephone, plaintiff became aware that

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defendant Parra was monitoring the call. (Id. at 6-7.) Plaintiff also heard a distinct “click,” which

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meant that the call was being monitored by CDCR staff. (Id. at 7.)

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On March 5, 2013, plaintiff was assaulted by inmates Valdivia and Trejo of the Two-Five

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gang. (Id.) Inmates Valdivia and Trejo later told plaintiff that they had conspired with defendant

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Parra to assault plaintiff. (Id.) They explained that defendant Parra told them that plaintiff was

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“dropping kites” on the Two-Five gang. (Id.) “Dropping kites” is prison slang for providing

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prison staff with information about the members of the gang. (Id.) Plaintiff alleges that

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defendant Parra conspired with inmates Valdivia and Trejo to assault him in retaliation for filing a

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staff complaint against defendant Guzman. (Id.)

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IV. Exhaustion of Administrative Remedies

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Legal Standard
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).

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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. Moreover, because proper exhaustion is necessary,

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a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise

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procedurally defective administrative grievance or appeal. See Woodford, 548 U.S. at 90-93.

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“[T]o properly exhaust administrative remedies prisoners ‘must complete the administrative

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review process in accordance with the applicable procedural rules,’ [] - rules that are defined not

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by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218

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(2007) (quoting Woodford, 548 U.S. at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027

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(9th Cir. 2009) (“The California prison system’s requirements ‘define the boundaries of proper
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exhaustion.’”) (quoting Jones, 549 U.S. at 218).
In California, prisoners may appeal “any policy, decision, action, condition, or omission

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by the department or its staff that the inmate or parolee can demonstrate as having a material

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adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).

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On January 28, 2011, California prison regulations governing inmate grievances were revised.

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Cal. Code Regs. tit. 15, § 3084.7. Now inmates in California proceed through three levels of

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appeal to exhaust the appeal process: (1) formal written appeal on a CDC 602 inmate appeal

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form, (2) second level appeal to the institution head or designee, and (3) third level appeal to the

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Director of the California Department of Corrections and Rehabilitation (“CDCR”). Cal. Code

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Regs. tit. 15, § 3084.7. Under specific circumstances, the first level review may be bypassed. Id.

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The third level of review constitutes the decision of the Secretary of the CDCR and exhausts a

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prisoner’s administrative remedies. See id. § 3084.7(d)(3). Since 2008, medical appeals have

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been processed at the third level by the Office of Third Level Appeals for the California

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Correctional Health Care Services. A California prisoner is required to submit an inmate appeal

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at the appropriate level and proceed to the highest level of review available to him. Butler v.

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Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir.

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2002). Since the 2011 revision, in submitting a grievance, an inmate is required to “list all staff

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members involved and shall describe their involvement in the issue.” Cal. Code Regs. tit. 15,

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§ 3084.2(3). Further, the inmate must “state all facts known and available to him/her regarding

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the issue being appealed at the time,” and he or she must “describe the specific issue under appeal

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and the relief requested.” Cal. Code Regs. tit. 15, §§ 3084.2(a)(4). An inmate now has thirty

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calendar days to submit his or her appeal from the occurrence of the event or decision being

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appealed, or “upon first having knowledge of the action or decision being appealed.” Cal. Code

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Regs. tit. 15, § 3084.8(b).
Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Bock,

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549 U.S. at 204, 216. In Albino, the Ninth Circuit agreed with the underlying panel’s decision1
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See Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012). The three judge panel noted that “[a]
defendant’s burden of establishing an inmate’s failure to exhaust is very low.” Id. at 1031.
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“that the burdens outlined in Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996),

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should provide the template for the burdens here.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.

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2014) (en banc). A defendant need only show “that there was an available administrative remedy,

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and that the prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. Once the

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defense meets its burden, the burden shifts to the plaintiff to show that the administrative

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remedies were unavailable. See Albino, 697 F.3d at 1030-31.

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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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Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (exhaustion excused where futile); Brown

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v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to proceed to third level where

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appeal granted at second level and no further relief was available).

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Where a prison system’s grievance procedures do not specify the requisite level of detail

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for inmate appeals, Sapp, 623 F.3d at 824, a grievance satisfies the administrative exhaustion

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requirement if it “alerts the prison to the nature of the wrong for which redress is sought.” Griffin

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v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). “A grievance need not include legal terminology

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or legal theories unless they are in some way needed to provide notice of the harm being grieved.

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A grievance also need not contain every fact necessary to prove each element of an eventual legal

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claim. The primary 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.” Griffin, 557 F.3d at 1120.

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If under the Rule 56 summary judgment standard, the court concludes that plaintiff has

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failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice.

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Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), overruled on other grounds by Albino,

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Relevant evidence includes statutes, regulations, and other official directives that explain the
scope of the administrative review process. Id. at 1032.
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747 F.3d 1162.

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Background

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Defendants argue that plaintiff failed to exhaust his administrative remedies with respect

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to his claims against defendant Bugarin, Mejia, Parra, Smith and Vincent, i.e., all defendants but

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for defendant Guzman.

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Defendants argue that between November 8, 2011, and July 16, 2013, plaintiff submitted

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two appeals that were accepted for third level review, HDSP 11-1606 and HDSP 12-0043. (ECF

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No. 50-11 at 2.) HDSP 11-1606 pertained to the November 9, 2011 incident involving defendant

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Guzman. (ECF No. 50-13 at 37-40.). In HDSP 12-0043, plaintiff challenged the finding of guilty

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in a disciplinary action based on the November 9, 2011 incident. (Id. at 46-47.)

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Defendants state that on March 10, 2013, plaintiff submitted appeal CSPC 13-2073

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concerning the March 5, 2013 assault and his claims that defendant Burgarin ignored his safety

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concerns and defendant Parra ordered his assault. (Id. at 52-55.) Defendants state that this appeal

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was rejected at the Director’s Level because plaintiff did not submit the necessary supporting

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documents. (Id. at 75.) The appeal identifies the missing documents as “CDCR Form 837

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Crime/Incident Report (parts A, B, & C) –all pages.” (Id.) Defendants state that despite being

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informed of the reasons this appeal was rejected, plaintiff did not cure the defect and resubmit the

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appeal.

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Analysis—Defendants Smith and Vincent

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In his opposition, plaintiff argues that he was not required to file separate administrative

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appeals with respect to his claims against defendants Smith and Vincent because his claims

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against these defendants “derive from the same nucleus of fact” as his claim against defendant

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Guzman. (ECF No. 60 at 13-14, 15)

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Administrative remedies may not be exhausted where the grievance, liberally construed,

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does not have the same subject and same request for relief. See Morton v. Hall, 599 F.3d 942,

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946 (9th Cir. 2010) (grievance that complained of visitation restrictions, and did not mention an

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assault or theorize that the visitation restriction imposed was related to the assault, was

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insufficient to put prison officials on notice that staff conduct contributed to the assault). HDSP
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11-1606, the grievance challenging the shooting by defendant Guzman, did not raise plaintiff’s

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claims against defendants Smith and Vincent. HDSP 11-1606 did not give prison officials notice

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that plaintiff was complaining that on December 12, 2011, defendant Smith allegedly refused to

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process his legal mail or that on January 24, 2012, defendant Vincent allegedly read plaintiff’s

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confidential legal papers and refused to make copies. For these reasons, the undersigned finds

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that plaintiff failed to exhaust his administrative remedies with respect to his claims against

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defendants Smith and Vincent.

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Analysis—Defendant Mejia

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In his opposition, plaintiff argues that HDSP 11-1606 raised his claim against defendant

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Mejia. In his response to the denial of HDSP 11-1606 at the second level, in addition to his

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claims against defendant Guzman, for the first time plaintiff argued that defendant Mejia and

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another guard denied his November 8, 2011 request to be removed from B yard. (ECF No. 50-13

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at 40.)
“Administrative remedies shall not be considered exhausted relative to any new issue,

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information, or person later named by the appellant that was not included in the originally

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submitted [appeal] and addressed through all required levels of administrative review up to and

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including the third level.” Cal.Code Regs. tit. 15, § 3084.1(b). In other words, the addition of

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plaintiff’s claim against defendant Mejia in his third level appeal did not exhaust this claim

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because new claims are not permitted as the appeal moves through the levels of review. A

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prisoner does not exhaust administrative remedies when he includes new issues from one level of

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review to another. See Sapp, 623 F.3d at 825 (concluding that it was proper for prison officials to

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“decline[ ] to consider a complaint about [prisoner’s] eye condition that he raised for the first time

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in a second-level appeal about medical care for a skin condition.”); Dawkins v. Butler, 2013 WL

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2475870, *8 (S.D. Cal. 2013) (a claim made for the first time in plaintiff’s request for Third Level

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review was insufficient to exhaust the issue where it was not included in the original appeal). For

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these reasons, the undersigned finds that plaintiff failed to exhaust his administrative remedies

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with respect to his claims against defendant Mejia.

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Analysis—Defendant Bugarin

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Plaintiff filed two grievances raising his claims against defendants Bugarin, i.e., grievance

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nos. 13-2852 and 13-2073. For the following reasons, the undersigned finds that these grievances

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did not exhaust plaintiff’s administrative remedies with respect to his claims against defendant

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Bugarin.

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On April 24, 2013, plaintiff submitted grievance no. 13-2852 as a staff complaint. (ECF

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No. 57 at 55.) In this grievance, plaintiff alleged that on February 28, 2013, defendant Bugarin

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conducted plaintiff’s pre-committee conference for his annual review. (Id.) Plaintiff alleged that

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he told defendant Bugarin about his safety concerns regarding the Two-Five gang. (Id. at 57.)

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Plaintiff alleged that defendant Bugarin refused to accept his documentation in support of his

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security concerns. (Id.) Plaintiff alleged that on March 5, 2013, he was attacked by two members

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of the Two-Five gang. (Id.)

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On April 30, 2013, grievance 13-2852 was screened out at the first level of review as

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untimely. (Id. at 60.) The response stated that plaintiff’s appeal was dated April 24, 2013, but

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plaintiff was attempting to appeal an ICC action which occurred on February 28, 2013. (Id.) “If

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so, you have failed to meet the allotted time constraints. Your appeal will not be processed at this

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time.” (Id.)

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Plaintiff appears to have resubmitted grievance 13-2852 at the first level, arguing that his

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appeal was intended as a “staff complaint.” (Id.) Plaintiff argued that his grievance was not

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untimely because he had one year from the alleged misconduct to file a staff complaint. (Id.) On

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May 16, 2013, grievance 13-2852 was again rejected at the first level of review as untimely. (Id.)

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The undersigned considers whether prison officials should have treated grievance 13-2852

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as a staff complaint, thus rendering it timely. California Code of Regulations Title 15, §

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3084.5(b)(4) describes staff complaints as appeals that allege “staff behavior or activity in

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violation of a law, regulation, policy, or procedure or appears contrary to an ethical or

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professional standard that could be considered misconduct as defined in subsection 3084(g)...”

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Subsection 3084(g) describes staff misconduct as “staff behavior that violates or is contrary to

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law, regulation, policy, procedure, or an ethical professional standard.”
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Based on the description of staff complaints in section 3084.5(b)(4), the undersigned finds

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that grievance 13-2852 was properly classified as a “regular” grievance rather than a staff

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complaint. Plaintiff’s claims against defendant Bugarin did not involve a violation of law,

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regulation, policy or procedure or a violation of ethical professional standard.2 Accordingly,

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grievance 13-2852 was properly rejected as untimely. For these reasons, the undersigned finds

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that grievance 13-2852 did not administratively exhaust plaintiff’s claims against defendant

7

Bugarin.

8

Plaintiff’s first level grievance filed in grievance 13-2073 raised only his claims against

9

defendant Parra. (ECF. No. 50-13 at 52, 54.) Plaintiff included his claims regarding defendant

10

Bugarin in his appeal from the second level response to grievance 13-2073. (Id. at 55.) Because

11

plaintiff did not include his claims regarding defendant Bugarin in the first level appeal he filed in

12

grievance 13-2073, this grievance did not exhaust his claims against defendant Bugarin. See

13

Cal.Code Regs. tit. 15, § 3084.1(b); Sapp, 623 F.3d at 825.

14
15

Accordingly, for the reasons discussed above, the undersigned finds that plaintiff did not
exhaust his administrative remedies with respect to his claims against defendant Bugarin.

16

Defendant Parra

17

On March 10, 2013, plaintiff filed grievance 13-2073 raising his claims against defendant

18

Parra. (ECF No. 57 at 75.) This grievance was processed as a staff complaint apparently based

19

on plaintiff’s allegations that defendant Parra facilitated the attack by the other inmates on

20

plaintiff. The first level response is unclear. (Id. at 81.) However, it appears to have been

21

granted in part. (Id.) Plaintiff’s appeal was accepted at the second level of review and also

22

granted in part. (Id. at 82.) The second level response states that on March 5, 2013, Sergeant

23

Nadel conducted a videotaped interview with plaintiff. (Id.) The response describes plaintiff’s

24

statements made during the interview. (Id.) The response further states that the following

25

witnesses were questioned regarding the grievance: inmate Trejo, inmate Valdivia, Officer Uribe,

26

Officer Trevino. (Id. at 87.) The response states that the following information was reviewed as

27
28

2

In contrast, plaintiff’s grievance against defendant Guzman alleging that he violated CDCR
regulations when he fired his weapon, was processed as a staff complaint. (ECF No. 57 at 47.)
13

1

a result of plaintiff’s allegations: plaintiff’s 602 and 602A, plaintiff’s disability and effective

2

communication report, sign-in/out sheets for Facility 3B, and Incident Package 837 Log # COR

3

03B-13-03-0129. (Id.)

4
5
6

Plaintiff’s third level appeal of grievance 13-2073 was rejected at the third level of review
because the appeal was missing the 837 Crime Report. (Id. at 85.)
In his opposition, plaintiff argues that he submitted requests to prison staff for the CDCR

7

837 incident report but received no response. (ECF No. 60 at 40.) Plaintiff also argues that he,

8

plaintiff, was not charged with a prison disciplinary for the altercation involving inmates Valdivia

9

and Trejo. (ECF No. 60. at 41.) Plaintiff argues that he would have received the CDCR 837

10
11

incident report had he, plaintiff, been charged with a rules violation involving that incident. (Id.)
The undersigned is puzzled by the fact that grievance 13-2073 was considered on the

12

merits at the second level of review, which included review of the 837 Crime Report, but rejected

13

at the third level of review based on plaintiff’s failure to include the 837 Crime Report.

14

Plaintiff’s statements in his opposition indicate that plaintiff did not possess a copy of the 837

15

Crime Report, suggesting that the second level reviewer independently obtained the 837 Crime

16

Report in order to evaluate plaintiff’s grievance. If the second level reviewer was able to obtain

17

this report, then it is unclear why the third level reviewer could also not obtain this report, which

18

was apparently not readily available to plaintiff. Without further explanation of these apparent

19

discrepancies in review procedures between the second and third level of review, the undersigned

20

cannot determine whether 13-2073 was properly rejected at the third level of review on

21

procedural grounds. Accordingly, defendant Parra should not be granted summary judgment on

22

the grounds that plaintiff failed to exhaust administrative remedies.

23

V. Motion for Summary Judgment on the Merits

24

Because the undersigned finds that plaintiff failed to exhaust his administrative remedies

25

with respect to his claims against Bugarin, Mejia, Smith and Vincent, the undersigned does not

26

address defendants’ motion for summary judgment as to plaintiff’s substantive constitutional

27

claims against these defendants. The undersigned herein addresses defendants’ arguments that

28

defendants Guzman and Parra are entitled to summary judgment as to plaintiff’s substantive
14

1

constitutional and state law claims.

2

A. Defendant Guzman

3

Plaintiff alleges that defendant Guzman used excessive force when he intentionally shot

4
5

plaintiff in the head during plaintiff’s November 9, 2011 altercation with inmate Haxton.
Where prison officials are accused of using excessive physical force, the issue is “whether

6

force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

7

sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quoting Whitley v.

8

Albers, 475 U.S. 312, 320–321 (1986)). Factors to consider in evaluating a claim of excessive

9

force in the prison context are: (1) the extent of the injury suffered by an inmate; (2) the need for

10

the application of force; (3) the relationship between that need and the amount of force used: (4)

11

the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper

12

the severity of a forceful response. Hudson, 503 U.S. at 7; Martinez v. Stanford, 323 F.3d 1178,

13

1184 (9th Cir. 2003).

14

Moreover, under Eighth Amendment standards, the defendant’s subjective intent

15

comprises an essential element of the affirmative case. See Wilson v. Seiter, 501 U.S. 294, 303

16

(1991); Hudson, 503 U.S. at 7. Thus, the assertion of an excessive force claim requires the

17

plaintiff to “‘put forward specific, nonconclusory factual allegations’ that establish improper

18

motive.” Crawford–El v. Britton, 523 U.S. 574, 598 (1998) (quoting Siegert v. Gilley, 500 U.S.

19

226, 236 (1991) (Kennedy, J., concurring in judgment)); Jeffers v. Gomez, 267 F.3d 895, 911 (9th

20

Cir. 2001). In other words, plaintiff must put forward evidence that the defendant was motivated

21

to cause him harm. Jeffers, 267 F.3d at 906; see also Hudson, 503 U.S. at 7 (force is excessive if

22

it is applied “maliciously and sadistically” to cause harm but not it if is “applied in a good faith

23

effort to restore discipline.”)

24

Defendants move for summary judgment on the grounds that defendant Guzman did not

25

intentionally shoot plaintiff in the head. The undersigned begins by summarizing the evidence

26

submitted by both parties regarding this claim.

27
28

In support of their motion as to this claim, defendants rely on the declaration of defendant
Guzman, quoted herein:
15

1
2

2. On November 9, 2011, I was the Control Booth Officer in
Building 3 on Facility B at HDSP. I was responsible for
supervising the inmates in Building 3, providing gun coverage and
operating the cell and building doors.

3
4
5
6
7

3. Building 3 is a 270-design housing unit. Meaning, the building
is shaped like a square, with cells on three of the four sides
(Sections A to C) of the building, and a dayroom area in the center.
Each section has two tiers (floors) of cells. The control booth,
which is on the second level, has a view into the dayroom and all
three sections. The control booth is about fifteen to twenty feet
above the ground. The doors to the cells and building are
electronically operated from the control booth. The housing
officers are usually stationed in the office below the control booth.

8
9
10
11

4. At approximately 11:31 a.m., on November 9, 2011, I opened
the entrance door to Building 3 for inmate Cordero (T-37551), who
was returning from medical. Cordero was assigned to cell 121, and
inmate Haxton was his cellmate.
5. Cell 121 is in Section B of Building 3 and is the section directly
across from the control booth.

12
13
14
15
16
17
18
19
20

6. I opened the door to cell 121. As the door was opening, Cordero
stepped in front of cell 122 and was talking to the occupants. The
telephone in the control booth rang, and I briefly turned my
attention to the phone to pick it up, but the phone stopped ringing
before I picked up the receiver. I looked away from the area where
Cordero was standing for only a matter of seconds.
7. When I turned my attention back to B-section, I saw Cordero
and Haxton punching each other in the head and upper-body areas
in front of cell 124.
8. I immediately activated my personal alarm and ordered the
inmates to get down. To the best of my recollection, Cordero and
Haxton were the only inmates in the dayroom area. Neither inmate
complied with my order. I grabbed the 40 mm launcher that was a
couple of feet from me, went to the front left window of the control
booth, and again yelled for the inmates to get down.

21
22

9. Cordero and Haxton were still striking and punching each other,
and had now moved to the area in front of the sink in B section.
The inmates did not comply with my second order to get down.

23
24
25

10. Despite having sounded the alarm, I did not see or hear an
officer in the dayroom or respond to the incident. Given the
viciousness with which Cordero and Haxton were striking each
other and their refusal to comply with my orders to get down, I
aimed the launcher at Cordero’s left calf and fired a single round.

26
27

11. As I fired the round, Cordero and Haxton simultaneously fell to
the ground, with Haxton landing on top of Cordero. The round
struck Cordero in the head.

28
16

12. As I reloaded the launcher, I saw Haxton sit on Cordero’s back
and punch him in the back of the head. I ordered Haxton to get
down, and saw Officers Green and Greer respond to the area of the
incident. The officers also ordered Haxton to get down, but Haxton
did not comply and continued to punch Cordero in the back of the
head. The officers pepper sprayed Haxton in the facial area.

1
2
3
4

13. Haxton got off of Cordero and complied with the officers’
orders to get down. He laid face down near the staircase in front of
the area of cell 124.

5
6

14. Cordero crawled to the front of the B-section shower, near cell
126, and laid his face down.

7
8

15. Additional responding staff arrived and restrained both
inmates. Cordero appeared to be bleeding from the head, and
medical staff attended to him. He was secured to a backboard,
placed on a gurney, and taken out of the building.

9
10

16. I did not aim for Cordero’s head, nor did I purposefully shoot
him in the head. As required by prison regulations, I aimed for
Cordero’s left calf.

11
12

17. Based on my observation and training, I determined it was
necessary to use the launcher to stop the inmates’ fighting, restore
order, and prevent any inmate from getting seriously hurt even
though the entire incident last[ed] about a minute. Cordero and
Haxton appeared to be forcefully and viciously striking each other
in the head and upper body areas. They failed to comply with my
orders to get down. And I did not see or hear any staff in the
dayroom. I did not fire the launcher on impulse or while I was
distracted. Nor did I shoot the launcher with the intention of
striking Cordero.

13
14
15
16
17
18

18. Before the incident on November 9, 2011, I was unaware of
any problems or animosity between Haxton and Cordero, and
Cordero never complained to me about any concerns he had about
being celled with Haxton.

19
20

19. After the incident, I was informed that the front-bead sight of
the launcher was slightly bent to the left. The front-bead sight is
used to assist in marking and hitting the intended target. I did not
know that the front-bead sight was slightly bent before I shot the
launcher on November 9, 2011.

21
22
23

20. Based on my customary practice, I inspect all weapons and
munitions in a control booth when I begin my shift. I have no
reason to believe that I did not follow my customary practice on
November 9, 2011, and inspected the weapons and munitions in the
control booth of Building 3. Had I noticed that the front-bead sight
was bent on November 9, 2011, I would have immediately
informed my supervisor and the Armory staff, so that a replacement
launcher could have been provided.

24
25
26
27
28

////
17

1
2
3
4
5

21. I do not believe that the bent front-bead sight was a factor in
Cordero being shot in the head on November 9, 2011. I was
approximately 50-60 feet away from Cordero and Haxton when I
shot the launcher. I aimed for Cordero’s left calf. Based on my
experience with the 40 mm launcher, even if the front-bead sight
was bent at the time I fired the launcher, it would have affected the
horizontal location of where the round impacted; it would not have
affected the vertical point of impact. I inadvertently shot Cordero
in the head because he and Haxton fell at the same time that I fired
the round while aiming at Cordero’s left calf.

6
7
8

(ECF No. 50-4 at 1-4.)
In his verified declaration submitted in support of his summary judgment motion, plaintiff

9

states that he was shot by defendant Guzman while he was standing on his feet. (ECF No. 60 at

10

3.) In support of his opposition, plaintiff has provided verified declarations by several inmates

11

who make the same observation. Inmates Crosby, Keech, Steele, Mercado, Turner and Gonzalez

12

all state that they saw plaintiff shot by defendant Guzman when plaintiff was “erect on his feet...”

13

(ECF No. 57-3 at 112, 113, 114,115, 116, 117.) These inmates state that they saw plaintiff fall to

14

the ground after he was shot in the head. (Id. at 112, 113, 114, 115, 116, 117.)

15

In his verified declaration, plaintiff also states that at no time did he strike inmate Haxton

16

back. (ECF No. 60 at 3.) Inmates Crosby, Keech, Steele, Mercado, Turner and Gonzalez also all

17

state that plaintiff “never struck the inmate back who attacked him, as Cordero was not the

18

aggressor.” (ECF No. 57-3 at 112, 113, 114, 115, 116, 117.)

19

Inmates Crosby, Keech, Steele, Mercado, Turner and Gonzalez also all state that

20

defendant Guzman did not aim for plaintiff’s lower zone, as required by CDCR policy. The

21

undersigned agrees with defendants that these inmates were not in a position to know where

22

defendant Guzman was aiming. Accordingly, the undersigned does not consider this portion of

23

their declarations.

24

At his deposition, plaintiff testified that he did not fight back when inmate Haxton

25

attacked him. (Plaintiff’s deposition at 81-84.) Plaintiff testified that he was carrying soup and

26

ibuprofen when inmate Haxton first attacked him. (Id. at 83.) Plaintiff testified that he was

27

standing on his feet when defendant Guzman shot him. (Id. at 84.) Plaintiff also testified that he

28

felt the shot from defendant Guzman hit him almost immediately after inmate Haxton first hit
18

1
2

him. (Id. at 82, 83, 89.)
Plaintiff testified that the incident ended after plaintiff fell to the ground. (Id. at 89.)

3

Inmate Haxton continued to swing at plaintiff until the “cops” ran out of the office and pepper

4

sprayed both inmates. (Id.)

5

The undersigned now turns to consideration of the Hudson factors set forth above.

6

Extent of Injury: Defendants’ motion does not address the extent of plaintiff’s injuries.

7

However, at his deposition, plaintiff testified that he has a titanium plate covering his scalp or

8

skull where he was shot. (Plaintiff’s deposition at 92.) Plaintiff now has difficulty using his

9

hands. (Id. at 93.) The left side of plaintiff’s body was paralyzed for a couple of months after the

10

incident. (Id.at 94.) Thus, plaintiff suffered serious injuries as a result of being shot by

11

defendant.

12

Need for Application of Force: The parties do not dispute that no officer responded when

13

defendant Guzman rang the alarm. The parties do not dispute that plaintiff and inmate Haxton

14

were engaged in an altercation. Thus, some force was required to quell the altercation. However,

15

whether the force needed to be applied to plaintiff is disputed. Under defendant’s version of the

16

facts, force was justified on plaintiff because he was viciously striking inmate Haxton and refused

17

the get down order.

18

At his deposition and in his verified declaration submitted in support of his opposition,

19

plaintiff claims he did not fight back, although he does not dispute that he did not obey the order

20

to get down. Plaintiff’s inmate witnesses, in their verified declarations, also state that plaintiff did

21

not fight back. In his unverified complaint, plaintiff alleges that he was shot while he and inmate

22

Haxton were “exchange blows.” For purposes of summary judgment, the undersigned credits

23

plaintiff’s verified version of events. However, at trial, plaintiff may have to explain his

24

description of events in his complaint.

25
26
27
28

Based on plaintiff’s verified version of events, it is difficult to find that any use of force
on plaintiff was justified.
Relationship Between Need for Force and Amount Used: With respect to the amount of
force used, the parties dispute whether defendant intended to shoot plaintiff in the head.
19

1

Defendant claims that he aimed for plaintiff’s left calf, and fired just as plaintiff fell to the

2

ground. Defendant claims that the shot accidentally hit plaintiff in the head as he fell.

3

Plaintiff and his witnesses claim that plaintiff was standing upright when defendant shot

4

him, i.e., not while he was falling. If defendant shot plaintiff while he was standing, it is not

5

unreasonable to infer that he intentionally shot plaintiff in the head.

6

Perceived Threat: As indicated above, the parties dispute the facts regarding the threat

7

perceived by defendant Guzman. Defendant claims that the plaintiff and inmate Haxton were

8

fighting each other. Plaintiff alleges that he did not fight back as inmate Haxton assaulted him.

9

Efforts Made to Temper Severity

10

The parties dispute whether defendant Guzman made efforts to temper the severity of the

11

force used. Defendant Guzman claims that he aimed at plaintiff’s calf, whereas plaintiff alleges

12

that defendant Guzman shot him in the head while he was standing.

13

Motive

14

Defendants argue that no inference can be drawn that defendant Guzman’s use of force

15

was malicious or sadistic because plaintiff’s evidence of motive is weak. (ECF No. 50-1 at 20.)

16

Defendants state that the only reason plaintiff believes defendant intentionally, rather than

17

accidentally, shot him in the head is based on a “vibe” plaintiff got from defendant when he

18

returned from pill call. (Id.)

19

As discussed above, to demonstrate improper motive, plaintiff must show that defendant

20

acted maliciously and sadistically to cause him harm. Defendant acted maliciously and

21

sadistically to cause plaintiff harm if he intentionally shot plaintiff in the head while plaintiff was

22

being attacked by inmate Haxton. While plaintiff may not be able to demonstrate what motivated

23

defendant to intentionally shoot him in the head, plaintiff has put forward sufficient evidence to

24

create a dispute regarding whether defendant acted maliciously and sadistically to cause him

25

harm.

26

Conclusion

27

Whether defendant Guzman’s use of force was applied in a good faith effort to maintain

28

or restore discipline, or maliciously or sadistically to cause plaintiff harm, is disputed. Because of
20

1

the disputed facts regarding this claim, the undersigned finds that defendant Guzman is not

2

entitled to summary judgment.3

3

B. Defendant Parra

4

Plaintiff argues that defendant Parra had inmates Valdivia and Trejo assault plaintiff in

5
6

retaliation for him filing a staff complaint against defendant Guzman.
“Within the prison context, a viable claim of First Amendment retaliation entails five

7

basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

8

because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

9

exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

10

correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).

11

Retaliatory motive may be shown by the timing of the allegedly-retaliatory act and other

12

circumstantial evidence, as well as direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th

13

Cir. 2003). However, mere speculation that defendants acted out of retaliation is not sufficient.

14

Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing cases) (affirming grant of summary

15

judgment where there was no evidence that defendants knew about plaintiff’s prior lawsuit, or

16

that defendants’ disparaging remarks were made in reference to prior lawsuit).

17

To raise a triable issue as to motive, a plaintiff must offer evidence that the defendants

18

knew about the protected speech. Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009). In

19

addition, a plaintiff must show “either direct evidence of retaliatory motive or at least one of three

20

general types of circumstantial evidence [of that motive].” McCollum v. California Dept. of

21

Corrections and Rehabilitation, 647 F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon, 283

22
23
24
25
26
27
28

3. The undersigned also notes another possible scenario suggested by the evidence, which is that
the bent front-bead sight caused the shot to hit plaintiff in the head, even though defendant aimed
at plaintiff’s calf. This issue has not been sufficiently addressed by the parties.
However, according to defendant Guzman, he inspected his weapon before his shift and
apparently did not notice the bent front-bead sight. Defendant Guzman also opines that the bent
front-bead sight did not affect his aim for plaintiff’s left calf.
Whether the bent front bead-sight affected the aim of the weapon may require the opinion
of an expert witness. Fed. R. Evid. 701, 702. The undersigned also notes that the prison official
who took possession of the weapon after the incident noticed that the front bead sight was slightly
bent during an inspection. (ECF No. 50-12 at 56.) If this official noticed the bent front-bead
sight, then it is unclear why defendant Guzman did not notice it during his inspection.
21

1

F.3d 1070, 1077 (9th Cir. 2002)). To survive summary judgment without direct evidence,

2

therefore, a plaintiff must “present circumstantial evidence of motive, which usually includes: (1)

3

proximity in time between protected speech and the alleged retaliation; (2) [that] the [defendant]

4

expressed opposition to the speech; [or] (3) other evidence that the reasons proffered by the

5

[defendant] for the adverse ... action were false and pretextual.” McCollum, 647 F.3d at 882

6

(internal quotation marks and citation omitted).

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Defendants argue that there is no evidence that defendant Parra orchestrated the assault.
In support of this argument, defendants rely on the declaration of defendant Parra:
1. I am employed by the California Department of Corrections and
Rehabilitation (CDCR) and in March 2013, I was the Control Booth
Officer in Building 2 on Facility 3B at California State PrisonCorcoran (COR).
2. As a Control Booth Officer, I supervised the inmates in Building
2, provided gun coverage and operated the cell and building doors.
Because weapons are stored in a control booth, the control booth is
locked, and the Control Booth Officer is not allowed to leave his
post unless there is an emergency and another officer provides
coverage. The control booth is located on the second level of a
housing unit.
3. On March 5, 2013, at about 12:40 p.m., I released a group of
inmates for yard. I saw two inmates, who I later identified as Trejo
and Valdivia, coming down the B section staircase. When they
reached the ground level, they ran into cell 121 that was occupied
by inmate Cordero (T-37551). I immediately activated my alarm
and yelled for the inmates to get down.
4. Counselor Bugarin responded and also ordered the inmates to
get down as he ran towards cell 121. Cordero exited the cell and
got down on the ground. Then Validivia exited the cell, followed
by Trejo and both inmates got down on the ground.
5. The entire incident lasted less than a minute. Because I did not
have a view into cell 121 from the control booth, I did not see what
occurred inside the cell.
6. I suspected that Trejo and Validivia were members of associates
of the Two-Five prison gang, that has its origins in the special
needs yard (SNY), and that Cordero was a victim of gang-ordered
or sanctioned hit. I stated my belief in my incident report (CDC
837) and informed my Sergeant.
7. Cordero alleged that I orchestrated his assault and that I ordered
Trejo and Valdivia to attack him on March 5, 2013, in retaliation
for his filing a lawsuit against CDCR staff at High Desert State
Prison (HDSP). This is not true. I did not order, request or incite
22

1
2

Trejo or Valdivia to assault Cordero. I was not aware of the assault
before it occurred. And I have no knowledge of why the inmates
attacked Cordero, other than my suspicion that this was a “hit” by
the Two-Five prison gang, as stated in my 837 report.

3
4

8. Before receiving the complaint in this case, I was unaware that
Cordero, and do no recall anyone informing me, that he was suing
HDSP staff.

5
6
7

9. Cordero alleged that I learned of his lawsuit against HDSP when
I listened in on a telephone call between him and his attorney. This
is not true. Based on my customary practice, I do not listen in on a
specific inmate’s telephone conversation unless the inmate is the
target of an investigation.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

10. The dayroom of Building 2 has four telephones that are
available to inmates. For safety and security reasons, the dayroom
telephones are monitored and recorded, except for telephone “D,”
which is designated for emergency calls. In the control booth, there
is a device that taps into the dayroom phones and records the
conversations (except for D) that are taking place.
11. As the Control Booth Officer, I had the capability of tapping
into a specific telephone to overhear an inmate’s conversation. But
my customary practice was to place the device on the random
function, which tapped in the phones in a random order for a
specified amount of time. I would play the device in the
background while I performed other duties and would pay attention
to the conversation when I heard key words that were indicative of
illegal activity or when it sounded as though the inmate was on a
three-way call, which was not permitted.
12. Unless the Investigate Service Unit informed me that an inmate
was under investigation or the prison had received a complaint
about an inmate making harassing calls, I did not target a specific
inmate while he was on the dayroom telephone. To the best of
recollection, Cordero was not part of any investigation that would
have required me to listen in on his conversations, and I would have
had no reason or desire to do so.
(ECF No. 50-6 at 1-3.)
Plaintiff’s opposition contains no direct evidence in support of his claim against defendant

23

Parra. At his deposition, plaintiff testified regarding his claim against defendant Parra.

24

Accordingly, the undersigned summarizes this testimony herein.

25

Plaintiff testified that sometime during the two months preceding March 5, 2013, although

26

he could not remember when, defendant Parra stopped plaintiff as he was on his way to a dental

27

appointment and said, “If you keep suing us, you’re gonna have to put your boots on.”

28

(Plaintiff’s deposition at 183.) The only other lawsuit plaintiff had at the time concerned his
23

1

conviction. (Id. at 185-86.)

2

Plaintiff testified that there are three reasons why he knows that defendant Parra

3

orchestrated the attack. First, defendant let plaintiff’s cellmate out of the cell last, i.e., after he

4

had let other inmates leave their cells. (Id.) Plaintiff argues that under these circumstances,

5

defendant Parra would had to have known that inmates Trevino and Validivia were waiting

6

outside his cell trying to get in, because the Control Booth Officer observes the cells he wants to

7

open. (Id. at 195-96.)

8
9

Plaintiff testified that the second reason he knows that Parra orchestrated the assault is that
he heard clicks on the phone when he was talking to the lawyer who was assisting him with his

10

lawsuit filed in Lassen County against defendant Guzman. (Id. at 199.) Plaintiff filed this lawsuit

11

on or about May 17, 2012. (ECF No. 60 at 5.) Plaintiff testified that approximately an hour or

12

two before the attack, he was talking on the phone with his lawyer. (Plaintiff’s deposition at

13

199.) Plaintiff heard the “distinctive click sound” made when someone picks up the other line.

14

(Id.) At that time, plaintiff looked up and saw defendant Parra looking out of the control tower at

15

plaintiff. (Id.) Defendant had the phone to his ear. (Id. at 200.) Plaintiff was not using the

16

confidential attorney phone when he made this phone call. (Id.) After plaintiff hung up, he told

17

defendant Parra that he knew that he had been listening in on his conversation with his attorney

18

regarding his lawsuit against High Desert State Prison. (Id. at 202.)

19

Plaintiff testified that the third reason he knows that defendant Parra orchestrated the

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attack is that inmates Valdivia and Trejo later told him that defendant Parra had instructed them

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to assault plaintiff. (Id. at 203.) Inmate Trejo later told plaintiff that defendant Parra told Trejo

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and Valdivia that plaintiff was informing on the Two-Five prison gang and that he was dropping

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kites on them. (Id. at 204-05.)

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For the following reasons, the undersigned finds that whether defendant Parra had
knowledge of plaintiff’s lawsuit filed against defendant Guzman is disputed.
Defendant claims that he had no knowledge of the lawsuit. In contrast, plaintiff testified

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that sometime during the two months prior to the attack, defendant Parra told plaintiff that he

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would have to “put his boots on” if he kept suing CDCR. The only lawsuit plaintiff had at the
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time concerning prison conditions was his lawsuit against defendant Guzman in Lassen County.

2

Based on these circumstances, it is reasonable to infer that defendant Parra was referring to

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plaintiff’s suit against defendant Guzman. Plaintiff also claims that defendant Parra knew about

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his lawsuit after listening in on his telephone conversation with his lawyer just hours before the

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assault. While plaintiff’s deposition testimony does not clearly demonstrate that defendant Parra

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listened to the phone conversation between plaintiff and his lawyer, plaintiff testified at his

7

deposition that after hanging up with his attorney, he told defendant Parra that he knew that he

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had listened in on the conversation where he discussed his lawsuit.

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Whether defendant Parra took an adverse action against plaintiff, i.e., orchestrated the

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assault, is also disputed. Defendant Parra denies that he orchestrated the attack. In his

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declaration, defendant Parra suggests that he opened all of the cell doors at one time to release the

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inmates to yard. Defendant states that when he opened the cell doors, inmates Trejo and

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Validivia were coming down the B section staircase and then ran to plaintiff’s cell.

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In contrast, plaintiff alleges that defendant Parra opened his cell door last, and that when

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he did so, defendant Parra could see inmates Trejo and Valdivia standing right outside his cell.

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Based on these alleged circumstances, and defendant Parra’s alleged earlier threat to plaintiff for

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pursuing his lawsuit, plaintiff has presented sufficient facts to create a dispute regarding whether

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defendant Parra orchestrated the assault on plaintiff by inmates Trejo and Valdivia in retaliation

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for plaintiff’s lawsuit against defendant Guzman.

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Defendants also observe that plaintiff claims that inmates Trejo and Valdivia told him that

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defendant Parra told them that plaintiff was informing on the Two-Five prison gang. Thus,

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defendants argue, there is no evidence that defendant Parra ordered the assault on plaintiff

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because of his protected activity, i.e., pursuing his lawsuit against defendant Guzman. Assuming

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that informing on the Two-Five gang was not protected activity, plaintiff is claiming that

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defendant Parra gave inmates Trejo and Valdivia a reason to attack plaintiff in order to pursue

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defendant’s goal of retaliating against plaintiff for filing his lawsuit against defendant Guzman.

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That defendant Parra gave inmates Trejo and Valdivia a reason to attack plaintiff that was

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inconsistent with his own retaliatory motive does not undermine plaintiff’s retaliation claim.
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2

Because of the disputed facts, the undersigned finds that defendant Parra should not be
granted summary judgment as to this claim.

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C. Qualified Immunity

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Defendants argue that they are entitled to qualified immunity.

5

In analyzing a claim of qualified immunity, a court must examine (1) whether the facts as

6

alleged, taken in the light most favorable to plaintiff, show that the defendant’s conduct violated a

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constitutional right, and (2) if a constitutional right was violated, whether, “in light of the specific

8

context of the case,” the constitutional right was so clearly established that a reasonable official

9

would understand that what he or she was doing violated that right. See Saucier v. Katz, 533 U.S.

10

194, 201–02 (2001). If no constitutional right was violated, the inquiry ends and the defendant

11

prevails. Saucier, 533 U.S. at 201.

12

To meet the “clearly established” requirement, “[t]he contours of the right must be

13

sufficiently clear that a reasonable official would understand that what he is doing violates that

14

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). This requires defining the right

15

allegedly violated in a “particularized” sense that is “relevant” to the actual facts alleged. Id.

16

“Because the focus is on whether the officer had fair notice that her conduct was unlawful,

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reasonableness is judged against the backdrop of the law at the time of the conduct.” Brosseau v.

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Haugen, 543 U.S. 194, 198 (2004).

19

Courts are not required to address the two inquiries in any particular order. Rather, courts

20

may “exercise their sound discretion in deciding which of the two prongs of the qualified

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immunity analysis should be addressed first in light of the circumstances in the particular case at

22

hand.” Pearson v. Callahan, 555 U.S. 223, 243 (2009).

23

Turning first to defendant Guzman, taking the facts in the light most favorable to plaintiff,

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the undersigned finds that defendant violated plaintiff’s Eighth Amendment rights. According to

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plaintiff, defendant Guzman shot him in the head as he was attacked by inmate Haxton. Plaintiff

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claims that he was standing at the time defendant shot him, i.e., not falling. Intentionally shooting

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an inmate in the head, while he is being attacked by another inmate, is sadistic and malicious.

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Turning to the second prong of the qualified immunity analysis, the undersigned finds that a
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reasonable officer would know that shooting an inmate under these circumstances violates the

2

Eighth Amendment. Accordingly, defendant Guzman is not entitled to qualified immunity.

3

As for defendant Parra, taking the facts in the light most favorable to plaintiff, defendant

4

Parra violated plaintiff’s constitutional right not to be retaliated against by having inmates Trejo

5

and Validivia attack him in retaliation for his filing a lawsuit against defendant Guzman. A

6

reasonable officer would know that setting plaintiff up to be attacked under these circumstances

7

violated plaintiff’s constitutional rights. Accordingly, defendant Parra is not entitled to qualified

8

immunity.

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C. Negligence Claim Against Defendant Guzman
Defendants argue that plaintiff’s negligence claim against defendant Guzman is barred by
the applicable statute of limitations.
California’s Tort Claims Act requires that a tort claim against a public entity or its

13

employees be presented to the California Victim Compensation and Government Claims Board

14

(“Board”), formerly known as the State Board of Control, no more than six months after the cause

15

of action accrues. Cal. Gov’t. Code §§ 905.2, 910, 911.2, 945.4, 950–950.2. Presentation of a

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written claim, and action on or rejection of the claim, are conditions precedent to suit. State v.

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Superior Court of Kings Cnty. (Bodde ), 32 Cal.4th 1234, 1245 (2004); Mangold v. Cal. Pub.

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Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public

19

employee, a plaintiff must allege compliance with the Tort Claims Act. Bodde, 32 Cal.4th at

20

1245; Mangold, 67 F.3d at 1477; Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627

21

(9th Cir. 1988). Generally, the lawsuit must be commenced within six months of the notice

22

rejecting the claim. Cal. Gov. Code §§ 913, 945.6; Cal. Code Civ. Proc. § 342; Shirk v. Vista

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Unified School Dist., 42 Cal.4th 210, 209 (2007).

24

Defendants argue that plaintiff did not file the instant action within six months of the

25

rejection of his claim by the Board. Defendants state that the Board rejected plaintiff’s claim on

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February 24, 2012, and plaintiff was informed that he had six months from the date of the

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rejection letter to file a civil lawsuit. (ECF No. 50-13 at 91.) Plaintiff had until August 24, 2012

28

to file a timely lawsuit. Defendants argue that plaintiff’s negligence claim is not timely because
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2

plaintiff did not file the instant action until July 16, 2013.
Defendants also argue that plaintiff’s action filed in the Lassen Superior Court did not toll

3

the statute of limitations. Plaintiff filed this state court action on May 12, 2012. (ECF No. 50-13

4

at 103.) On April 4, 2013, plaintiff voluntarily dismissed this action. (Id. at 111.)

5
6

In her declaration filed in support of the summary judgment motion, defense counsel
describes the state proceedings:

7

I was the DAG assigned [to] defend CDCR staff and the prison in
plaintiff’s earlier state action. During the course of the litigation,
including discovery, plaintiff asserted that he was pursuing an
excessive force claim under 42 U.S.C. § 1983 against Guzman and
a failure to protect claim against Officer Mejia. During the case
management hearings, the superior court informed plaintiff that his
complaint did not adequately allege a cause of action for excessive
force under 42 U.S.C. § 1983. Also, Mejia was never named or
served as a defendant. Despite being informed of these defects in
his pleadings, plaintiff did not seek to amend the complaint.
Instead, he continued to pursue his state action, including
propounding exhaustive discovery requests related to his cause of
action against Guzman. After several months of discovery,
plaintiff, through his then-attorney of record, dismissed the state
action without requesting a waiver of costs or an agreement to toll
the statute of limitations.

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(ECF No. 50-12 at 3.)
California has developed a three-pronged test for invocation of the doctrine of equitable

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tolling: there must be “(1) timely notice to the defendant in the first claim; (2) lack of prejudice to

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[the] defendant in gathering evidence to defend against the second claim; and, (3) good faith and

20

reasonable conduct by the plaintiff in filing the second claim.” Donoghue v. County of Orange,

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848 F.2d 926, 931 (9th Cir. 1987) (citing Collier v. City of Pasadena, 142 Cal.App.3d 917, 922-

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24 (1983)).

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Defendants do not argue that they did not receive timely notice or were prejudiced. Citing

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Martell v. Antelope Valley Hosp. Med. Ctr., 67 Cal.App.4th 978, 982 (1998), defendants argue

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that, as a matter of law, actions voluntarily dismissed do not toll the statute of limitations.

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In Estate of Blue v.County of Los Angeles, 120 F.3d 982 (9th Cir. 1997), the plaintiff
argued that the voluntary dismissal of its previously filed federal action tolled the statute of

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limitations under California law. The defendants argued that plaintiff did not meet the “good

2

faith and reasonable conduct” requirement for equitable tolling.

3

In Estate of Blue, The Ninth Circuit stated that it did not decide whether the simple fact

4

that a plaintiff voluntarily dismissed a claim necessarily prevented the application of equitable

5

tolling under California law. Id. at 985 (citing Appalachian Ins. Co. v. McDonnell Douglas

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Corp., 214 Cal.App.1 (1989) (holding that prompt and good faith voluntary dismissal of

7

improperly removed action did not preclude application of equitable tolling). “Nonetheless, we

8

do not believe the California Supreme Court would use Appalachian to apply equitable tolling in

9

cases where a claim had been pending for a long period and was then voluntarily dismissed and

10

refiled, e.g., Bacon, 843 F.2d at 374-75, or where the plaintiff delayed proceeding on the claim,

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e.g., Ervin, 848 F.2d at 1020.” Id. “Those circumstances generally indicate that the plaintiff, as

12

here, was not acting reasonably and in good faith.” Id.

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In finding that the plaintiff did not meet the “good faith and reasonable conduct

14

requirement,” the Ninth Circuit in Blue noted that the plaintiff had an opportunity to litigate its

15

civil rights claims in the voluntarily dismissed action. Id. at 984. “Neither the court nor the

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defendants created barriers to obstruct a resolution of the claims on the merits.” Id.

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In the instant case, plaintiff dismissed his state court action 11 months after he filed it, and

18

after conducting extensive discovery. Plaintiff also took no steps to amend his state court

19

complaint after being notified of the pleading defects. These circumstances do not demonstrate

20

that plaintiff acted reasonably or in good faith in filing the instant action. In his opposition,

21

plaintiff argues that he followed the advice of counsel in dismissing his state law action.

22

Plaintiff’s decision to follow counsel’s advice, without further explanation, does not warrant

23

tolling. For these reasons, plaintiff is not entitled to equitable tolling for the time his state court

24

action was pending. Plaintiff makes no other arguments in support of equitable tolling.

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In his opposition, plaintiff also argues that his negligence claim against defendant Guzman

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is timely because he filed this action within the more lengthy statute of limitations allowed for

27

section 1983 actions.4 Plaintiff’s argument is without merit. Unlike section 1983, which does not

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4

The statute of limitations for a § 1983 action, as well as any tolling of the limitations period, is
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1

contain a limitations period, California has provided for a specific statute of limitations governing

2

claims brought against public entities or their employees. Lucchesi v. Bar–O Boys Ranch, 353

3

F.3d 691 (9th Cir. 2003) (citing Silva v. Crain, 169 F.3d 608, (9th Cir. 1999)) (Section 945.6 is a

4

special statute of limitations which governs claims under the Government Claims Act).

5

Plaintiff also argues that the period to file his state law claims was tolled under California

6

Code of Civil Procedure § 352.1, which provides for two years of tolling for actions filed by

7

incarcerated prisoners. Plaintiff is incorrect. Prisoners are not entitled to tolling based on their

8

incarceration for the limitations period provided for in California Government Code § 945.6. See

9

Moore v. Twomey, 120 Cal.App.4th 910 (2004).
Plaintiff’s negligence claim against defendant Guzman is time barred because plaintiff did

10
11

not file this action within six months of the denial of his claim by the Board. For these reasons,

12

defendant Guzman should be granted summary judgment as to plaintiff’s negligence claim.

13

Defendant Guzman also moves for summary judgment as to the merits of plaintiff’s negligence

14

claim. The undersigned need not address this argument because the negligence claim is time-

15

barred.

16

VI. Plaintiff’s Motion to Amend

17

In the motion to amend, plaintiff argues that defendants claim that defendant Mejia has

18

not appeared in this action. Plaintiff requests leave to file an amended complaint naming

19

defendant Mejia.

20

As observed by defendants in their opposition, defendant Mejia has appeared in this action

21

and defended against it. The motion for summary judgment was filed on defendant Mejia’s

22

behalf. Because defendant Mejia has appeared in this action, plaintiff’s motion to amend is

23

denied as unnecessary.

24

determined by state law. Wilson v. Garcia, 471 U.S. 261, 275 (1985), superseded by statute on
other grounds as stated in Pony v. County of Los Angeles, 433 F.3d 1138, 1143 (9th Cir. 2006).
In California, the statute of limitations for personal injury actions is two years. Cal. Civ. Proc.
Code § 335.1. Further, if the plaintiff is incarcerated, California law provides for tolling the
statute of limitations for up to two years. See Cal. Civ. Proc. Code § 352.1(a) (“If a person
entitled to bring an action ... is, at the time the cause of action accrued, imprisoned on a criminal
charge, or in execution under the sentence of a criminal court for a term less than for life, the time
of that disability is not a part of the time limited for the commencement of the action, not to
exceed two years.”).
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Accordingly, IT IS HEREBY ORDERED that:

2

1. Defendants’ motion for an extension of time to file a reply (ECF No. 61) is granted;

3

2. Plaintiff’s motion to amend (ECF No. 59) is denied; and

4

IT IS HEREBY RECOMMENDED that defendants’ summary judgment motion (ECF

5

No. 50) be granted as to defendants Mejia, Vincent, Smith and Bargarin, and as to plaintiff’s

6

negligence claim against defendant Guzman; and denied as to plaintiff’s federal claims against

7

defendants Guzman and Parra.

8

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

9

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

10

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

11

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

12

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

13

objections shall be filed and served within fourteen days after service of the objections. The

14

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

15

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

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Dated: April 17, 2015

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