Dicey v. Cobb et al

Filing 64

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/13/2017 RECOMMENDING defendants Betti and Hood's 29 motion for summary judgment be granted in part and denied in part as follows: (1) Granted with respect t o plaintiff's remaining claim against defendant Hood, resulting in defendant Hood's dismissal from this action; and (2) Denied with respect to plaintiff's remaining claim against defendant Betti. 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. On March 13, 2015, the court screened plaintiff’s complaint

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pursuant to 28 U.SC. § 1915A and found that plaintiff could proceed on claims against defendants

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Betti and Hood arising under the First Amendment. Plaintiff alleges Betti and Hood caused

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plaintiff to lose a job assignment in retaliation for plaintiff’s use of the inmate grievance process

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at High Desert State Prison (High Desert). Defendants Betti and Hood answered plaintiff’s

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complaint on July 21, 2015 and their motion for summary judgment is now 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

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

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

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

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

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

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(9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than

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simply show that there is some metaphysical doubt as to the material facts . . . . Where the record

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

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

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In his complaint, which is signed under the penalty of perjury, plaintiff alleges that on

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November 4, 2010, plaintiff was transferred from the Delta Five housing unit, C section, to the

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Delta One unit. As a result of this transfer, plaintiff was removed from his job assignment in the

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Delta Three dining hall.

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Plaintiff alleges that defendants Betti and Hood caused plaintiff to be transferred in

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retaliation for prisoner grievances submitted by plaintiff. In support of this, plaintiff asserts that

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defendant Betti told plaintiff the following, two days before plaintiff was transferred to Delta

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One:

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Dicey I see that second watch now has you on their shit list. You
just can’t stop your little appeals, huh. You[’re] going to lose.

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Compl. at 6.
Plaintiff also claims defendant Betti said the following, the day before he was transferred:
Dicey I know people such as “Griffith,” remember him Dicey from
“C” Yard? Well he is the assignment Lieutenant so here is your
heads up, trash that / those appeals right now, this is your last
chance to keep everything you now have, once you are moved you
will lose your job.

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Id. at 7.
In their affidavits attached to defendants’ motion for summary judgment, Betti and Hood
both state that while they could recommend that an inmate be transferred to another housing
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facility, a transfer could only be effectuated upon approval of the “facility sergeant.” Neither

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recalls recommending plaintiff for a transfer out of Delta Five in November, 2010.

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At his deposition, plaintiff testified that after he was moved to Delta One, he was given a

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new job in December, 2010. ECF No. 29-4 at 11. He also testified that after he was transferred

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to Delta One, but before he was given a new job assignment, he was away from High Desert for a

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jury trial for approximately 16 days. Id. Accordingly, as a result of being transferred to Delta

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One, plaintiff did not have a job assignment for, at most, approximately one month.

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Additionally, at his deposition, plaintiff testified that on at least four or five occasions
plaintiff asked defendants Betti and Hood for a transfer out of the C section of Delta Five because

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of a lack of privileges. Id. at 14. However, nothing suggests plaintiff requested a transfer from

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the Delta Five unit.

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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). A First Amendment retaliation

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claim has five elements: 1) the retaliated-against conduct is protected; 2) a defendant took

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adverse action against the plaintiff; 3) there is a causal connection between the protected conduct

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and the adverse action; 4) the defendant’s acts would chill future First Amendment activities of a

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reasonable person; and 5) the retaliatory action did not advance legitimate correctional goals.

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Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012).

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Defendants argue that there is no evidence that either defendant caused plaintiff to be

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transferred from Delta Five to Delta One, thereby causing plaintiff to lose his job in the Delta

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Three dining hall. With respect to defendant Hood, the court agrees. There is no evidence before

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the court indicating Hood took any action which resulted in plaintiff being transferred to Delta

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One. As for defendant Betti, however, the statement plaintiff alleges Betti made the day before

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transfer could be viewed as a threat that plaintiff would be transferred if he did not withdraw his

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prisoner grievances. This is enough evidence to create at least a genuine issue of material fact as

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to whether Betti recommended plaintiff for transfer the next day, and thereby caused his transfer,

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because plaintiff refused to withdraw his grievances.

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Defendants also argue that plaintiff’s transfer to Delta One served a legitimate

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correctional goal, i.e. granting plaintiff’s request to be transferred from C section in Delta Five.

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This court rejects this argument as there is no evidence suggesting plaintiff ever requested a

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transfer out of Delta Five or into Delta One. Furthermore, there is no evidence that defendants

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transferred plaintiff to Delta One based upon plaintiff’s request that he be transferred from C

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section in Delta Five. In fact, defendants fail to adduce any evidence as to why plaintiff was

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transferred.

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In accordance with the above, IT IS HEREBY RECOMMENDED that defendant Betti
and Hood’s motion for summary judgment (ECF No. 29) be granted in part and denied in part as
follows:
1. Granted with respect to plaintiff’s remaining claim against defendant Hood, resulting
in defendant Hood’s dismissal from this action; and

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2. Denied with respect to plaintiff’s remaining claim against defendant Betti.

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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: January 13, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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dice2661.msj

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