Dicey v. Cobb et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/5/2016 RECOMMENDING defendant Griffith's 20 motion for summary judgment be granted; and defendant Griffith be dismissed from this action. Referred to Judge Troy L. Nunley; Objections to F&R 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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BERLAN LYNELL DICEY,
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No. 2:14-cv-2661 TLN CKD P
Plaintiff,
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v.
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T. COBB, et al.,
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FINDINGS AND RECOMMENDATIONS
Defendants.
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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil
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rights under 42 U.S.C. § 1983. The claims which remain arise under the First Amendment
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against defendants Betti, Hood, and Griffith. Defendant Griffith’s motion for summary judgment
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is before the court.
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Summary judgment is appropriate when it is demonstrated that there “is no genuine
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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by
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“citing to particular parts of materials in the record, including depositions, documents,
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electronically stored information, affidavits or declarations, stipulations (including those made for
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purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R.
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Civ. P. 56(c)(1)(A).
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Summary judgment should be entered, after adequate time for discovery and upon motion,
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against a party who fails to make a showing sufficient to establish the existence of an element
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essential to that party’s case, and on which that party will bear the burden of proof at trial. See
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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an
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essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”
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Id.
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If the moving party meets its initial responsibility, the burden then shifts to the opposing
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party to establish that a genuine issue as to any material fact actually does exist. See Matsushita
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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the
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existence of this factual dispute, the opposing party may not rely upon the allegations or denials
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of their pleadings but is required to tender evidence of specific facts in the form of affidavits,
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and/or admissible discovery material, in support of its contention that the dispute exists or show
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that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed.
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R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the
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fact in contention is material, i.e., a fact that might affect the outcome of the suit under the
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governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,
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Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is
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genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving
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party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
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In the endeavor to establish the existence of a factual dispute, the opposing party need not
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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual
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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at
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trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce
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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”
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Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963
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amendments).
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In resolving the summary judgment motion, the evidence of the opposing party is to be
believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the
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facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475
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U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s
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obligation to produce a factual predicate from which the inference may be drawn. See Richards
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v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902
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(9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than
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simply show that there is some metaphysical doubt as to the material facts . . . . Where the record
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taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
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‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).
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In his complaint (ECF No. 1), which is signed under the penalty of perjury, plaintiff
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alleges that defendant Griffith removed plaintiff from his job assignment as a culinary worker in
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retaliation for plaintiff’s utilization of the inmate grievance procedure at High Desert State Prison
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(High Desert). In support of his claim, plaintiff asserts that a few days before losing his job,
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defendant Betti told plaintiff that he knew Assignment Lieutenant Griffith and that if plaintiff did
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not cancel his pending grievances, plaintiff would lose his job. ECF No. 1 at 7. Exhibit 12,
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attached to plaintiff’s complaint, is written notification from defendant Griffith to plaintiff
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concerning the loss of plaintiff’s job assignment:
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Effective 11-05-10 Inmate DICEY . . . has been unassigned from
position DRLFD.652 due to BUILDING MOVE. Inmate DICEY
has retained his A1A status and placed back on the D/SS waiting
lists. Inmate DICEY will be reassigned when reachable on the
waiting list and a position is vacant at that custody level, case
factors, ethnicity, work qualifiers meet the requirements of the
position, and institutional needs are met.
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In his affidavit attached to his motion for summary judgment, defendant Griffith asserts as
follows:
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1. Plaintiff lost his work assignment as a culinary worker solely because of his housing
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transfer from Delta 2 Yard to Delta 1 Yard. Defendant Griffith was not the person who decided
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to transfer plaintiff to Delta 1 Yard and had no authority, at the relevant period of time, to change
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an inmate’s housing assignment.
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2. Plaintiff was placed on a waiting list for a new assignment when was he was
transferred to Delta 1 Yard and received a new assignment sometime in December, 2010.
3. Generally speaking, inmates at High Desert are not permitted to have job or education
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assignments outside of their housing facilities because of the need to minimize inmate movement.
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Less inmate movement amounts to fewer security concerns and less movement of contraband
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throughout the prison.
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4. Defendant Griffith had no knowledge of any inmate grievances filed by plaintiff which
were pending in November, 2010.
Prison officials generally cannot retaliate against inmates for exercising First Amendment
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rights. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Because a prisoner’s First
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Amendment rights are necessarily curtailed, however, a successful retaliation claim requires a
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finding that “the prison authorities’ retaliatory action did not advance legitimate goals of the
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correctional institution or was not tailored narrowly enough to achieve such goals.” Id. at 532.
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The court finds that undisputed evidence shows that not permitting inmates to maintain
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job assignments in buildings other than those in which they are housed advances legitimate
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correctional goals and is narrowly tailored. Plaintiff does not dispute that placing limitations on
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inmate movement, wherever possible, promotes security and reduces the flow of contraband. It is
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important to note that prisons are not required to allow inmates to work at all, see Walker v.
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Gomez, 370 F.3d 969, 973 (2004), so, to the extent prison officials opt to permit inmates to work
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only with minimal compromise to security, such is within their purview. See Bell v. Wolfish,
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441 U.S. 520, 547 (1979) (prison officials accorded wide-ranging deference in maintaining
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institutional security). Furthermore, the fact that plaintiff was denied a job assignment for only
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one to two months demonstrates that the policy of generally not permitting inmates to work
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outside of their housing units is narrowly tailored.
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In his opposition, plaintiff asserts that while he worked in the Delta 2 Yard dining hall,
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he heard correctional officers say that one of his co-workers, an inmate Redman, was assigned to
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the Delta 4 Yard. ECF No. 42 at 2-3. However, plaintiff’s testimony as to the statements of the
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correctional officers is inadmissible hearsay. Fed. R. Evid. 801 et. seq. In any case, even if the
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court were to consider the statements, a single instance of an inmate being allowed to work in an
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area outside of the building in which the inmate was housed does not raise a genuine issue of
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material fact as to whether plaintiff’s job loss after his housing transfer did not advance legitimate
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correctional goals. Indeed, plaintiff fails to offer any reason why he should have been exempted
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from the general rule restricting inmates to job assignments according to their housing
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assignments.
For all of the foregoing reasons, the court will recommend that defendant Griffith’s
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motion for summary judgment be granted, and that defendant Griffith be dismissed from this
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action.
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In accordance with the above, IT IS HEREBY RECOMMENDED that:
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1. Defendant Griffith’s motion for summary judgment (ECF No. 20) be granted; and
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2. Defendant Griffith be dismissed from this action.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: December 5, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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