Hopkins v. Bustos et al

Filing 86

ORDER (1) Overruling Objections; (2) Adopting 81 Report and Recommendation; And (3) Granting 63 Motion for Summary Judgment. Signed by Judge Janis L. Sammartino on 6/20/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL HOPKINS,

Case No.: 15-CV-788 JLS (PCL)
Plaintiff,

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v.

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ORDER (1) OVERRULING
OBJECTIONS; (2) ADOPTING
REPORT AND
RECOMMENDATION; AND (3)
GRANTING MOTION FOR
SUMMARY JUDGMENT

R. BUSTOS, et al.,
Defendants.

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(ECF No. 81)

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Presently before the Court are: (1) Defendants Jeffrey Beard1 and Daniel Paramo’s

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Motion for Summary Judgment (“MSJ,” ECF No. 63); (2) Magistrate Judge Peter C.

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Lewis’s Report and Recommendation (“R&R”) advising that the Court should grant

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Defendants’ MSJ, (ECF No. 81); and Plaintiff’s Objections to the R&R, (“R&R Objs.,”

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ECF No. 85). Defendants did not file a reply in opposition to Plaintiff’s Objections. After

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considering the parties’ arguments and the law, the Court (1) OVERRULES Plaintiff’s

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The Court hereby substitutes the current Secretary of the California Department of Corrections and
Rehabilitation (“CDCR”), Scott Kernan, for former Secretary Beard on Plaintiff’s official capacity claim.
See Fed. R. Civ. P. 25(d). However, for ease of reference and to preserve continuity in assessing the
matters before the Court, the Court considers Plaintiff’s factual allegations against Defendant Beard.
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Objections, (2) ADOPTS the R&R in its entirety, and (3) GRANTS Defendants’ Motion

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for Summary Judgment.

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BACKGROUND

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Judge Lewis’s R&R contains a thorough and accurate recitation of the factual and

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procedural histories underlying the instant Motion for Summary Judgment. (See R&R 1–

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92.) This Order incorporates by reference the background as set forth therein.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties regarding a magistrate judge’s report and recommendation. The district court

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“shall make a de novo determination of those portions of the report . . . to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United

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States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely objection,

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however, “the Court need only satisfy itself that there is no clear error on the face of the

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record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s

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note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)).

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ANALYSIS
I.

Summary of the R&R Conclusion

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On May 4, 2015 Plaintiff filed a Complaint against various defendants for alleged

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violations of his civil rights. (Compl., ECF No. 1.) Plaintiff accuses the moving Defendants

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of violating his due process rights under the Fourteenth Amendment by denying him

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admittance into the Developmentally Disabled Program (“DDP”) which would have

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allegedly enabled him to file grievances against correctional staff while he was incarcerated

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at Richard J. Donovan Correctional Facility (“RJD”). (Compl. 5–7.) On September 14,

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Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each
page.

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2016 Defendants filed a Motion for Summary Judgment arguing that (1) neither Beard nor

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Paramo violated Plaintiff’s due process rights, and (2) Plaintiff’s claim is moot. (See

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generally MSJ.)

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Judge Lewis concluded that Defendants did not violate Plaintiff’s due process rights

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and thus recommends that the Court grant Defendants’ MSJ. While Plaintiff argues that

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Defendants denied him access into the DDP, Judge Lewis notes that the evidence shows

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the opposite—that Plaintiff initially failed to test into the program, was still able to file

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grievances, and was eventually placed into the DDP. (R&R 12–13.) Thus, Judge Lewis

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found that there was no liberty interest at stake wherein process was constitutionally due.

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(Id. at 13.)

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II.

Summary of Plaintiff’s Objections

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Plaintiff’s objections appear to be buried at page 196 of his 213-page filing.3 (R&R

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Objs. 196.) Liberally construing Plaintiff’s filing, it appears that he objects to Judge

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Lewis’s apparent failure to consider certain evidence in issuing his R&R. (See, e.g., id. at

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197 (listing the bases for Plaintiff’s Objections).)

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III.

The Court will review, de novo, each part of Judge Lewis’s R&R to which Plaintiff

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Court’s Analysis

objects.

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First, Plaintiff objects to the fact that “Defendants have violated his Due Process

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Rights in multiple violations as alleged in his complaint in which [the R&R] seems not to

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encompas[s] and recognize.” (Id. at 197.) However, Plaintiff does not identify which facts

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in his Complaint were allegedly ignored by Judge Lewis. More fundamentally, however,

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“a party opposing a properly supported motion for summary judgment may not rest upon

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mere allegation or denials of his pleading, but must set forth specific facts showing that

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The first several pages of his filing appear to be his account of the events that have thus far transpired
without any reference to his actual objections, followed by over one hundred pages of exhibits. (See
generally R&R Objs.)

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there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256

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(1986). Accordingly, the Court OVERRULES Plaintiff’s first Objection.

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Second, Plaintiff similarly objects to Judge Lewis’s alleged failure to discuss these

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violations as set forth in Plaintiff’s response in opposition to Defendants’ Motion for

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Summary Judgment. (R&R Objs. 197.) As above, Plaintiff fails to identify what facts in

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particular Judge Lewis allegedly failed to consider. Instead, Plaintiff appears to discuss

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general legal principles, (id. at 197–200), asserts in a conclusory fashion that he “clearly

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demonstrates that” his rights were violated, (id. at 200), and then appears to attach a

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verbatim copy of his response in opposition to Defendants’ Motion for Summary

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Judgment, (compare id. at 201–08, with ECF No. 76, at 5–12). This is insufficient to

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demonstrate that Judge Lewis failed to consider any particular evidence. See, e.g., Celotex

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Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Rule 56(e) therefore requires the nonmoving

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party to . . . designate ‘specific facts showing that there is a genuine issue for trial.’”

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(emphases added)); S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003)

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(“A party opposing summary judgment must direct our attention to specific, triable facts.

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General references without page or line numbers are not sufficiently specific.” (citations

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omitted)); Fed. R. Civ. P. 56(c)(1)(A) (requiring parties to cite to “particular parts of

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materials in the record”).

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Moreover, contrary to Plaintiff’s objection, the record reflects that Judge Lewis

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considered Plaintiff’s allegations in relation to the record evidence. According to Judge

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Lewis:

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Here, Plaintiff alleges that Defendants Warden Paramo and Secretary Beard
ignored his developmental disability and did not provide him with adequate
assistance to file grievances with the prison. Plaintiff argues that because he
was deemed mentally incompetent to stand trial for a short period of time
before successfully being tried and convicted he should have been considered
developmentally disabled for purposes of receiving prison assistance with
reading and writing. Defendants have put forth evidence that Plaintiff was
tested for placement in DDP at the start of his current sentence in 2012 and
that he did not get a low enough score to be placed in the program. (Doc. 638, at 2, Decl. Pope at ¶ 3.) Starting in March 2014, Plaintiff filed numerous
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administrative appeals regarding his desire to be classified as a DDP inmate
and eventually received a favorable response from the prison, the record
shows. (Decl. of Robinson at ¶ 9.) Defendants have shown that Plaintiff was
retested for DDP assistance and given a Clark Adaptive Support Evaluation
(CASE) at the California Institution for Men on January 27, 2015. (Doc. 635, at 11, Exhibit 4 to Decl. Custodian of Records.) Following this evaluation,
Defendants have provided evidence that he was placed in the DDP program
at the DD2 level, meaning he may need occasional prompts to initiate or
complete self-care and daily life activities; he may need adaptive supports and
additional supervision for appropriate interaction with others, following rules,
and avoiding social isolation; and he may need help in reading, writing, and
preparing documentation. (Id.; Doc. 63-8, at 12, Exhibit 3.) After Plaintiff was
designated as a DDP inmate, he has been incarcerated at Donovan from
February 5, 2015 to February 26, 2015, and then from March 6, 2015 to April
21, 2015, and then from March 7, 2016 to March 26, 2016. (Doc. 63-8, at 45, Decl. Pope at ¶ 10.) While being held at Donovan during these times,
Plaintiff has received accommodations in accordance with the Clark Remedial
Plan including assistance in reading and completing forms and documents,
such as inmate appeals, Form 22 Requests for Interview, and other documents.
(Id.) Furthermore, Defendants have put forth evidence that they did not
interfere with Plaintiff’s access to the inmate appeals process. Since the
beginning of his incarceration with CDCR on July 15, 2012, Plaintiff has filed
more than thirty health care appeals. (Doc. 63-9, at 3-4, Decl. Robinson at ¶ 8
and Exhibit 1.) About half of his health care appeals have been either granted
or partially granted at different levels of review. (Id.) And Plaintiff has taken
thirteen of those appeals to the third level of review. (Id.)
(R&R 12–13.)
Based on this evidence, Judge Lewis concluded that Defendants did not violate
Plaintiff’s due process rights. Specifically, Judge Lewis found that
[f]rom the evidence presented by Defendants, the Court does not detect facts
that implicate a liberty interest at stake, which is the heart of Plaintiff’s sole
claim under consideration against Defendants in this motion for summary
judgment. Plaintiff alleges that he was prevented from filing inmate appeals
because of his disability in violation of Due Process, but the record shows that
Plaintiff was able to file administrative appeals sans DDP status through the
help of other inmates according to Plaintiff’s own admission. (Doc. 80, at 28.)
With or without help, Plaintiff filed over thirty inmate appeals and took
thirteen of those appeals to the third level of review. (Doc. 63-9, at 3-4, Decl.
Robinson at ¶ 8 and Exhibit 1.) Although Plaintiff has also put forth evidence
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where he is quoted saying, “Custody retaliated on me for writing 602s,” this
merely colorable evidence does not flesh out any specific details of an
“atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life”[footnote] that has been caused by the prison’s long
delay in classifying Plaintiff as an DDP inmate. As Plaintiff has been free to
file inmate appeals and has been granted what he has requested – DDP status
– before the filing of this lawsuit, this Court fails to detect a liberty interest at
stake in where process is constitutionally due. (Doc. 63-8, at 4, Decl. Pope at
¶ 9; Doc. 63-8, at 30, Exhibit 6.)

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(Id. at 13–14.) Based on the record evidence, the Court agrees with Judge Lewis that “the

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evidence shows that there isn’t a genuine issue of material fact in Plaintiff’s Due Process

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claim, [and thus] Defendants Warden Paramo’s and Secretary of CDCR’s summary

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judgment motion on this sole operative claim in Plaintiff’s complaint should be granted.”

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Accordingly, the Court OVERRULES Plaintiff’s second Objection.

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Furthermore, after review of the moving papers and Judge Lewis’s R&R the Court

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finds “that there is no clear error on the face of the record” and thus the Court may “accept

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the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell, 510

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F.2d at 206). Accordingly, the Court ADOPTS Judge Lewis’s R&R in its entirety and

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GRANTS Defendants’ Motion for Summary Judgment (ECF No. 63).
CONCLUSION

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For the reasons stated above, the Court (1) OVERRULES Plaintiff’s Objections,

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(2) ADOPTS Judge Lewis’s R&R in its entirety, and (3) GRANTS Defendants’ Motion

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for Summary Judgment (ECF No. 63).

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IT IS SO ORDERED.
Dated: June 20, 2017

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