Roberts v. Beard et al

Filing 176

REPORT AND RECOMMENDATION Granting in Part and Denying in Part Defendants' Motion for Summary Judgment (ECF No. 172 ). Any party to this action may file written objections with the Court and serve a copy on all parties no later than 02/14/2019. Signed by Magistrate Judge Ruth Bermudez Montenegro on 01/25/2019. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATE DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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v.

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Case No. l 5cv1044 WQH (RBM)

Tony Roberts,

J. Beard et al.,

Plaintiff, REPORT AND
RECOMMENDATION GRANTING
IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (Doc.172)
Defendants.

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I.

INTRODUCTION

Plaintiff Tony Roberts, an inmate currently incarcerated at California Health

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Care Facility, has filed a 42 U.S.C. § 1983 lawsuit against staff at the RJ Donovan
Correctional Facility for violations of his First Amendment right to file grievances
and for various violations of state law. (Doc. 1, at 3-4.) Plaintiff alleges that

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Defendants R. Davis, A. Buenrostro, C. Meza, A. Parker, R. Solis, R. Santiago, and

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K. Seibel - all prison staff - retaliated against him for engaging in First

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Amendment conduct. 1 (Doc. 1, at 11-12.) Defendants have filed a motion for
summary judgment on the following grounds: 1) The undisputed evidence shows

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that Defendants did not retaliate against Plaintiff in violation of his First

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Amendment rights; 2) Plaintiffs state law claims do not create enforceable

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individual rights; and 3) Defendants are entitled to qualified immunity. 2 (Doc. 172-

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1, at 19-24.) For the following reasons, the Court recommends granting in part and

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denying in part Defendants' motion for summary judgment.

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II.

ALLEGATIONS

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Plaintiff alleges that "Defendants conspired to retaliate against [him] for

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engaging in 'protected conduct' when [he] petitioned for redress of his grievances"

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between April and October 2014. (Doc. 1, at 19.) Plaintiff alleges that Defendants
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Davis and Buenrostro "engaged in a series of unlawful and repressive conduct

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against Plaintiff and other mentally ill inmates" when Plaintiff "attempted to access

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[RJ Donovan's] inmate appeal procedure to complain about these Defendants'

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conduct" which "were either screened out or were never responded to by [RJ

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Donovan's] prison officials." (Doc. 1, at 10.) Plaintiff states that after he wrote the

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Plaintiff also named the following people in his Complaint: Captain S.
Sanchez, L. Ciborowski, D . Arguilez, D . Paramo, and J. Beard. However, Plaintiff
never properly served these Defendants. See Judge William Q . Hayes' s Order, Doc.
31.
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Defendants also argue that the Eighth Amendment claim against Defendant
Buenrostro should also be oismissed on summary judgment. (Doc. 172-1, at 6.)
However, Judge Hayes already dismissed this Eighth Amendment claim against
Defendant Buenrostro on summary judgment on September 24, 2018. (Doc. 136, at
6-8.)
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"class monitors" of the California Department of Corrections and Rehabilitation's
mental health delivery system, appointed under Coleman v. Brown et al., 28 F.

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Supp. 3d 1068 (E.D. Cal. April 11, 2014), Plaintiff was retaliated against and

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terrorized by Defendants A. Buenrostro, R. Davis, C. Meza, A. Parker, R. Solis, R.

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Santiago, and K. Seibel for engaging in First Amendment conduct. (Doc. 1, at 10-

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11.)
Plaintiff claims that Defendants C. Meza and A. Buenrostro prohibited

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Plaintiffs ability to send written communications of public interest to government
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officials. (Doc. 1, at 19.) Plaintiff states that Defendant C. Meza "illegal[ly]

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obtained a copy of a written complaint Plaintiff had drafted and submitted" to the

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Department of Justice and gave the complaint to Defendant Buenrostro, who then

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concocted false allegations against Plaintiff in retaliation and arranged with other

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officers Plaintiffs transfer to another prison that caused Plaintiff "to experience an

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exacerbation in his mental illness." (Doc. 1, at 12.) Plaintiff claims that Defendants
A. Parker and A. Buenrostro conducted a cell search on June 3, 2014 and
confiscated legal documents from Plaintiff including a civil rights complaint that

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was about to be filed against Defendants Buenrostro and Meza for the April 2, 2014

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incident, in which Plaintiff was found guilty of "Openly Displaying Disrespect" to

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Defendant Buenrostro. (Doc. 1, at 20.) Plaintiff alleges that Defendants Buenrostro

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and Parker "concocted false disciplinary charges" against him, accusing him of

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working with another prisoner to falsely accuse Defendant Buenrostro. (Doc. 1, at
20-21.)

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Plaintiff claims that Defendants Davis, Meza, and Buenrostro falsely labeled

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Plaintiff a "snitch," causing him to be attacked by other inmates, in retaliation for

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exercising his First Amendment rights. (Doc. 1, at 21-24.) Plaintiff alleges that
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Defendant Buenrostro told other prisoners that he was a child molester on

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September 29, 2014, in a "calculated effort to place Plaintiffs safety in danger from

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other inmates." (Doc. 1, at 23.) Plaintiff claims that Defendant K. Seibel, the deputy

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chief warden, conspired to retaliate against Plaintiff for filing grievances by

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authorizing the illegal activities of the other correctional officers under her and by

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placing him on a list for transfer to another CDCR facility in Stockton in September
and October 2014. (Doc. 1, at 14-15, 23.)
Finally, Plaintiff alleges that Defendant Buenrostro conducted a clothed body

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search of Plaintiff on April 2, 2014 and intentionally rubbed Plaintiffs private parts

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for sexual gratification in retaliation for exercising his First Amendment rights.

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(Doc. 1, at 11-12.) Plaintiff alleges that Buenrostro then wrote up a false and

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retaliatory rules violation report against him for exercising his constitutional rights.
(Doc. 1, at 11.) Plaintiff alleges that Defendant Buenrostro later spoke to him in
October 2014 and promised to "get some payback on your ass" and attempted to set

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Plaintiff up to be injured by other inmates. (Doc. 1, at 24.)

Ill
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III. EVIDENCE PRESENTED
A. Defendants' Proffer
Defendants A. Buenrostro and C. Meza both declared that they did not take
any adverse action against Plaintiff because Plaintiff corresponded with the "class

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monitors" of CDCR's mental health delivery system, appointed under Coleman v.

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Brown et al., or for any other reason. (Buenrostro Deel.~ 2; Meza Deel.~ 3.)

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Defendants Buenrostro and Meza stated that they never refused to process

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Plaintiffs outgoing mail and that they never interfered with Plaintiffs outgoing or

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incoming mail. (Buenrostro Deel.~ 3; Meza Deel.~ 2.) Defendant Meza never

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confiscated or otherwise obtained any of Plaintiffs legal materials. (Meza Deel.~

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4.) Defendants Buenrostro and Parker did not confiscate a civil rights lawsuit

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during a search of Plaintiffs cell on June 3, 2014. (Buenrostro Deel.~ 11; Parker

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Deel.~

2.)

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Defendant Buenrostro was monitoring the inmates in Housing Unit A-1 on
April 2, 2014. (Buenrostro Deel. ~ 3.) Defendant Buenrostro ordered Plaintiff to
leave the housing unit and go to the dining hall for breakfast or return to his cell,

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but he stated that Plaintiff ignored his orders. (Buenrostro Deel.~ 3.) Defendant
Buenrostro approached Plaintiff and again ordered Plaintiff to leave the housing
unit or return to his cell and Plaintiff responded, "Don't worry about what I'm

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doing, stupid Mexican." (Buenrostro Deel.~ 3.) Defendant Buenrostro stated that
he searched Plaintiff because Plaintiffs actions were suspicious and unusual.
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(Buenrostro Deel. if 4.) Defendant Buenrostro told Plaintiff that he was expected to
follow orders and procedures within the housing unit. (Buenrostro Deel. if 4.)

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Plaintiff was agitated and angry and responded, "Fuck you stupid Mexican. I'm

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going to do what I want to do." (Buenrostro Deel. if 4.) At that point, Defendant

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Buenrostro placed Plaintiff in handcuffs because of Plaintiff's unusual behavior and

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agitated state, and as a safety precaution, Plaintiff was escorted to the Program

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Support Unit. (Buenrostro Deel.

if 4.) Defendant Buenrostro declared that he did not

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use excessive or improper force on Plaintiff at any time during the incident and

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clothed body search on April 2, 2014. (Buenrostro Deel. if 5.) Defendant Buenrostro

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stated that he did not sexually assault Plaintiff during that search and did not rub

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Plaintiff's private parts for sexual gratification. (Buenrostro Deel. if 5.) Defendant

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Buenrostro searched Plaintiff because his actions were suspicious, and Defendant

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Buenrostro knew that Plaintiff was not assigned to cell 210. (Buenrostro Deel.

if 5.)

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Defendant Buenrostro also knew, based on his training, education, and personal

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experience within CDCR, that inmates often try to go to other cells for improper

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purposes such as delivering or obtaining contraband including drugs, weapons,

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currency, or electronic equipment or other property that is not theirs. (Buenrostro

if 5.) This, and Plaintiff's agitated state, were the only reasons why Defendant

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Deel.

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Buenrostro performed a clothed body search of Plaintiff. (Buenrostro Deel. if 5.)

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Defendant Buenrostro wrote a 115 Rules Violation Report charging Plaintiff with
behavior that leads to violence in violation of California Code of Regulations, Title
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15, section 3005(d). (Buenrostro Deel.~ 6 and Exhibit A.) Defendant Buenrostro
stated that he did not write this report in retaliation. (Buenrostro Deel.~ 6 and

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Exhibit A.) This Rules Violation Report was heard by a senior hearing officer,

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Correctional Lieutenant R. Davis, on May 1, 2014. (Buenrostro Deel.

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6 and

Exhibit A thereto.) Lt. Davis found Plaintiff not guilty of behavior that leads to

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violence, but instead found him guilty of the lesser included offense of openly

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displaying disrespect in violation of California Code of Regulations, Title 15,

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section 3004 (b). Lt. Davis's finding was based upon a preponderance of the

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evidence submitted at the hearing. (Buenrostro Deel.~ 6 and Exhibit A.) This

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evidence included Defendant Buenrostro's written report which stated in part that

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Plaintiff said "don't worry about what I'm doing stupid Mexican," and the

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testimony of Correctional Counselor Hailey, who told Lt. Davis that he heard

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Plaintiff call Defendant Buenrostro "a Mexican." (Buenrostro Deel. ~ 6 and Exhibit

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A.) Plaintiff was assessed thirty days forfeiture of good-time credits, thirty days

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loss of evening yard privileges, and thirty days loss of dayroom privileges.

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(Buenrostro Deel.~ 6 and Exhibit A.) This 115 Rules Violation Report's guilty

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finding has not been overturned by the CDCR. (Buenrostro Deel. ~ 6 and Exhibit
A.) Defendant Davis, who made the guilty finding, has declared that he never
participated in an "ongoing conspiracy to purposefully punish [Plaintiff] for

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exercising his right to file inmate grievances." (Davis

Deel.~

2.)

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Defendant Buenrostro never contacted Sergeant Sanchez to plot Plaintiffs
transfer to another prison, knowing that doing so would exacerbate Plaintiffs

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mental illness. (Buenrostro Deel. ~ 8.) Defendant Buenrostro did not have authority

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to have an inmate transferred, and he had no influence over the decision to transfer

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an inmate. (Buenrostro Deel.

ir 8.) Defendant Buenrostro has never sat on any of

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Plaintiffs classification committees, and he has never acted as a Classification Staff

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Representative reviewing any action concerning Plaintiff. (Buenrostro Deel.~ 10.)

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Defendants Buenrostro and Parker did not "concoct" false disciplinary charges

ii 12; Parker Deel. ii 6.) Defendants Buenrostro

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against Plaintiff. (Buenrostro Deel.

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and Parker were working as the Floor Officers in Housing Unit A-1 at RJ Donovan

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on June 3, 2014. (Buenrostro Deel. ii 13; Parker Deel.~ 2.) Defendants Buenrostro

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and Parker randomly chose to search Plaintiffs cell that day. (Buenrostro ii~ 13, 15;

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Parker Deel. if 2, 4.) Defendant Parker discovered a small, clear plastic bag lying on

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the lower-bunk mattress underneath a blue, state-issued jacket. (Buenrostro Deel. if

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13; Parker Deel.~ 2.) The bag was filled with tobacco. (Buenrostro Deel. if 13;

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Parker Deel. ii 2.) The lower bunk was assigned to Plaintiff at that time.

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(Buenrostro Deel. ii 13; Parker Deel. ii 2.) Defendant Parker took possession of the

ii 13;

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tobacco and disposed of it per institutional procedures. (Buenrostro Deel.

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Parker Deel. if 2.) Defendant Parker did not "plant" the bag of tobacco on Plaintiffs

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bunk. (Parker Deel. ii 4.) Defendant Parker wrote a 115 Rules Violation Report
charging Plaintiff with possession of contraband (tobacco) in violation of California
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Code of Regulations, Title 15, section 3006. (Buenrostro Deel. ~ 14; Parker Deel. if
3 and Exhibit A.) This Rules Violation Report was heard by a senior hearing

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officer, Correctional Lieutenant R. Davis, on July 2, 2014. (Buenrostro Deel. if 14;

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Parker Deel. ~ 3 and Exhibit A.) Lt. Davis ultimately found Plaintiff not guilty of

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this charge and dismissed the rules violation report because of insufficient

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evidence. (Buenrostro Deel.~ 14; Parker Deel.

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Buenrostro and Parker did not search Plaintiff's cell in retaliation for any protected

3 and Exhibit A.) Defendants

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conduct that Plaintiff may have engaged in or for any other improper reason.
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(Buenrostro Deel.~ 15; Parker Deel.~ 4.) Defendants Buenrostro and Parker

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searched Plaintiff's cell because they were required to perform three to five random

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cell searches during their shifts as floor officers. (Buenrostro Deel.
Deel.~ 4.)

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15; Parker

Defendant Parker did not conspire with Buenrostro, or any other

correctional staff member or inmate, to file false disciplinary charges against

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Plaintiff, and no one ever asked or suggested that Parker do so. (Parker Deel.~ 6.)
Defendants Buenrostro, Meza, and Santiago neither manufactured any charges
against Plaintiff at any time, nor have they asked or pressured others to do so.

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(Buenrostro Deel. ~ 20; Meza Deel. ~ 6; Santiago Deel. ~ 2.) Defendant Buenrostro

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has never taken any adverse action against Plaintiff that was not based upon a

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legitimate, penological reason. (Buenrostro Deel. if 20.) Defendant Buenrostro

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never told Plaintiff that he would "get some payback" and never attempted to ,set up
Plaintiff to be injured by other inmates. (Buenrostro Deel. ~ 22.) Defendant
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Buenrostro is not aware of any report or instance where Plaintiff was attacked by

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other inmates from April through October 2014, and he is not aware of any reports

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evidencing such an attack. (Buenrostro Deel.~ 22.) Defendant Buenrostro has never

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threatened Plaintiff or bribed or caused another inmate to.assault, attack, or hurt

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Plaintiff. (Buenrostro Deel. if 22-24.)
Defendant Seibel reviewed Plaintiffs transfer data on CDCR' s Strategic
Offender Management System (SOMS). (Seibel Deel.

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each CDCR inmate's case factors. (Seibel Deel.

ii 5.) SOMS contains data on

ii 5.) The information in SOMS

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shows that Plaintiff was not placed on a transfer list in September and October 2014

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to be sent out ofRJ Donovan. (Seibel Deel.~ 6.) Defendant Seibel does not have

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unilateral authority to place an inmate on a transfer list. (Seibel Deel. if 6.)

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Plaintiffs records showed that RJ Donovan reviewed his case on February 18,

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2014. (Seibel Deel.

if 8.) Plaintiffs case was referred to the Classification Staff

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Representative (CSR) with a recommendation that Plaintiff be retained at RJ
Donovan. (Seibel Deel.

ii 8 and Exhibit A.) The CSR endorsed the Unit

Classification Committee's (UCC's) recommendation on March 26, 2014, and

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Plaintiff remained at RJ Donovan. (Seibel Deel. if 8 and Exhibit B thereto.) This
ruling was upheld at Plaintiffs next UCC hearing on September 12, 2014. (Seibel
Deel.~

9 and Exhibit C.) Defendant Seibel never had any knowledge that others

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were planning to retaliate, or were retaliating, against Plaintiff at any time. (Seibel
Deel. i! 10.) Defendants Seibel and R. Solis never took any adverse action against
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Plaintiff for any protected conducted that he may have engaged in, including
placing Plaintiffs name on a list for transfer out ofRJ Donovan. (Seibel Deel. ~3;

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Solis Deel.~ 3.)
Defendants Seibel, Santiago, Solis, Meza, Davis, Buenrostro, and Parker never

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called Plaintiff a snitch or child molester at any time. (Seibel Deel.

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11; Santiago

5; Solis Deel. ,-i 5; Meza Deel. ,-i 5; Davis Deel. ,-i 3; Buenrostro Deel. if 21;

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Deel.~

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and Parker Deel.

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7.) In addition to creating a threat of harm to the inmate and a

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security risk to the institution, any of the Defendants would have faced severe
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disciplinary action from their supervisors and the prison administration had they

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called any inmate a "snitch" or a "child molester." (Buenrostro Deel.~ 21.)

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B. Plaintiff's Proffer
On April 2, 2014, Plaintiff placed a CDCR Inmate Appeal 602 dated April 2,
2014 in Housing Unit# 1 Appeals box, alleging sexual assault by Correctional
Officer A. Buenrostro. (Roberts Deel. if 3, Doc. 119, at 26.) Plaintiff declared that
he never received a response from any prison official regarding the appeal. (Id.)
On June 23, 2014, Plaintiff filed a 602 Appeal dated June 19, 2014 concerning

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senior CDCR administrators ' intentional failure to control Officers D. Arguilez, A.

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Buenrostro, and R. Davis. (Roberts Deel. ,-i 4, Doc. 119, at 27.) Plaintiff declared

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that he never received a response addressing the appeal. (Id.)

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On July 8, 2014, Plaintiff gave Officer L. Ciborowski an appeal dated June 28,
2014, alleging an ongoing conspiracy to retaliate against him. (Roberts Deel. if 5,
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Doc. 119, at 27.) Plaintiff also submitted a CDCR Form 22 Inmate Request for
Interview to Officer Ciborowski, who accepted it and signed it. (Id.) However,

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Plaintiff never received a response to the appeal. (Id.) Plaintiff stated that the

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administrative appeal submitted to Ciborowski on July 8, 2014 included sufficient

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detail to provide enough information to allow prison officials to take appropriate

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responsive measures. (Doc. 119, at 15.) Plaintiff declared that it has been his

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personal experience that RJ Donovan fails to operate an inmate appeal system that

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conforms to state law and places unreasonable restrictions on an inmate's ability to
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submit 602 appeals. (Roberts Deel.

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believes that his appeals either vanished or were unlawfully rejected. (Roberts Deel.

16; Doc. 119, at 31.) Plaintiff stated that he

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17, 23; Doc. 119, at31-33 .)
Plaintiff declared that Officer A. Buenrostro, C. Meza, and R. Davis engaged

in unlawful and repressive conduct against him as he attempted to access RJ

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Donovan's inmate appeal procedure to complain about the Defendants' conduct
Deel.~

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towards him. (Roberts

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A. Buenrostro and C. Meza illegally read and refused to process as outgoing mail a

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Coleman letter to class monitors on March 6, 2014. (Roberts Deel.~ 27, Doc. 119,

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at 34.) Plaintiff then concluded that as a result of his filing 602 appeals and other

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complaints, he was retaliated against by Defendant Buenrostro, including rubbing

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or touching his "male organ for the purpose of sexual gratification" during a "patdown search." (Roberts Deel.~ 31, Doc. 119, at 35.) Plaintiff stated that Defendant
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Buenrostro issued him a false 115 Rules Violation Report for behavior that leads to
violence arising out of the April 2, 2014 incident. (Roberts Deel. if 34, Doc. 119, at

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36.) Plaintiff declared that Defendant Buenrostro falsely accused him of having

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contraband during the search of his cell on June 3, 2014, an accusation for which he

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was found not guilty. (Roberts Deel.~ 45, Doc. 119, at 38.) Plaintiff declared that

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Defendants Buenrostro and Parker confiscated a motion for preliminary injunction

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with attached declarations during the cell search, which denied him the ability to

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support his allegations for a preliminary injunction. (Roberts Deel. ifif 42, 44, Doc.

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119, at 37-38.) Plaintiff declared that he was attacked by several black inmates on

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July 14, 2014 as a result of Defendant Davis labelling him a "snitch" to another

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inmate and paying "Black Street Gang members money to attack" him. (Roberts
Deel.~

53, Doc. 119, at 40.)

Plaintiff also submitted his own declaration stating the following evidence:

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that Defendant Solis told another inmate that he heard that Roberts was going to be

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transferred and that, as a result, he was fearful that Defendant Solis was "going to

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cause me harm again because of filing 602' s or legal actions against RJDCF prison

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officials" (Roberts Deel.

ifi-1 54-55, Doc.

119, at 40); that Defendant Ciborowski told

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him that he was going to be transferred and that Chief Deputy Warden Seibel "is

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tired of you with all these 602's" (Roberts Deel.~ 50, Doc. 119, at 39); and that

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inmate Billy Titus told him that he overheard Defendant Santiago telling Captain
Sanchez that Roberts "had inmate Goldmas, CDCR # F-31549, injure himself in
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order to set Officer Buenrostro up" (Roberts Deel.~ 49, Doc. 119, at 39).
In addition to his own declaration, Plaintiff submitted the following inmate

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declarations: Inmate Juley Gordon stated that Defendant Buenrostro told him that

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anyone found helping Plaintiff file 602 appeals would be on his hit-list. (Gordon

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Deel.~

7, Doc. 119, at 83.) Inmate Gerald Marshall declared that Defendant

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Buenrostro called Plaintiff Roberts a "snitch," told him the Crips "got off on his ass

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a couple of months ago on the yard," and told him not to help Plaintiff with his

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legal papers. (Marshall

Deel.~

1, Doc. 119, at 98.) Inmate Curtis Rusher declared

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that Defendant Buenrostro told him that Plaintiff was arrested for child molestation

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in the 1980s, offered to provide the documents showing that what he was saying

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was true, and expressed his desire to see Plaintiff "handled good enough to get him

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out of here!" (Rusher Deel.~ 2, Doc. 119, at 100.) Inmate Keith Williams declared

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that Defendant Buenrostro told him if he and his "homeboys" put Plaintiff "in the

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hospital this time," he would bring "anything you want in here." (Williams Deel.~
1, Doc. 119, at 103.) Inmate Kelvin Singleton declared that in July 2014, inmates
who were West Coast Crip members said a correctional officer offered "five

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hundred dollars" to "fuck up an EOP inmate named Roberts ... for snitching on him
and some other officers who had come on A yard from the hole." (Singleton Deel. ~

3-4, Doc. 119, at 110-111.) He stated that he heard from other inmates that Roberts

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was attacked during night yard. (Singleton Deel.~ 5, Doc. 119, at 111.) Inmate
Lavale Jones declared that Defendant Solis told him that he would get "transferred
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too" if he did not tell him which officers "Roberts is doing 602' s or legal
paperwork against." (Jones

Deel.~

3, Doc. 119, at 77.) Inmate Mark Barbee

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declared that Defendant Davis told him that Roberts is a snitch because he "wrote a

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letter to the Warden and got a lot of investigations going against me and other

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officers." (Barbee Deel.~ 3, Doc. 119, at 89.) Inmate Russell Squires declared that

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Defendant Meza told him that Roberts was a snitch for writing 602 's against fellow

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correctional officers. (Squires

Deel.~

2, Doc. 119, at 95.) He also declared that

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Defendant Meza said that he refused to give him "disinfect, cell phones, lighters,
tobacco ... until one of you guys put Bull in the hospital." (Id.)
IV. STANDARD OF REVIEW

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Rule 56(c) of the Federal Rules of Civil Procedure authorizes the granting of

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summary judgment "if the pleadings, depositions, answers to interrogatories, and

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admissions on file, together with the affidavits, if any, show that there is no genuine

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issue as to any material fact and that the moving party is entitled to judgment as a
matter of law." The standard for granting a motion for summary judgment is
essentially the same as for the granting of a directed verdict. Judgment must be

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entered, "if, under the governing law, there can be but one reasonable conclusion as
to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "If
reasonable minds could differ," however, judgment should not be entered in favor

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of the moving party. Id. at 250-51.

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The parties bear the same substantive burden of proof as would apply at a trial

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on the merits, including plaintiffs burden to establish any element essential to his

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case. Liberty Lobby, 477 U.S. at 252. The moving party bears the initial burden of

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identifying the elements of the claim in the pleadings, or other evidence, which the

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moving party "believes demonstrate the absence of a genuine issue of material

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fact." Celotex v. Catrett, 477 U.S. 317, 323 (1986). "A material issue of fact is one

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that affects the outcome of the litigation and requires a trial to resolve the parties'

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differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th

12

Cir. 1982). More than a "metaphysical doubt" is required to establish a genuine

13

issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

14
15

U.S. 574, 586 (1986).

16

The burden then shifts to the non-moving party to establish, beyond the

17

pleadings, that there is a genuine issue for trial. See Celotex, 4 77 U.S. at 324. To

18
19
20
21

successfully rebut a properly supported motion for summary judgment, the
nonmoving party "must point to some facts in the record that demonstrate a genuine
issue of material fact and, with all reasonable inferences made in the plaintif:fI' s]

22
23
24
25

favor, could convince a reasonable jury to find for the plaintif:fI]." Reese v.
Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000).
While the district court is "not required to comb the record to find some reason

26
27
28

to deny a motion for summary judgment," Forsberg v. Pacific N.W. Bell Tel. Co.,
840 F .2d 1409, 1418 (9th Cir. 1988), the court may nevertheless exercise its
16
15cv1044 WQH (RBM)

1

2

discretion "in appropriate circumstances," to consider materials in the record which
are on file but not "specifically referred to." Carmen v. San Francisco Unified Sch.

3
4

Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). However, the court need not "examine

5

the entire file for evidence establishing a genuine issue of fact, where the evidence

6
is not set forth in the opposing papers with adequate references so that it could be

7
8
9

conveniently found." Id.
In ruling on a motion for summary judgment, the court need not accept legal

10
11

conclusions "in the form of factual allegations." Western Mining Council v. Watt,

12

643 F .2d 618, 624 (9th Cir. 1981 ). "No valid interest is served by withholding

13

summary judgment on a complaint that wraps nonactionable conduct in a jacket

14
15

woven of legal conclusions and hyperbole." Vigliotto v. Terry, 873 F.2d 1201,

16

1203 (9th Cir. 1989). Moreover, "[a] conclusory, self-serving affidavit, lacking

17

detailed facts and any supporting evidence, is insufficient to create a genuine issue

18
19

of material fact." F.T.C. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th

20

Cir. 1997). While "the district court may not disregard a piece of evidence at the

21

summary stage solely based on its self-serving nature," Nigro v. Sears, Roebuck &

22
23

Co., 784 F .3 d 495, 497-498 (9th Cir. 2015) (finding plaintiff's "uncorroborated and

24

self-serving declaration sufficient to establish a genuine issue of material fact

25

because the "testimony was based on personal knowledge, legally relevant, and

26
27
28

internally consistent"), "[t]he district court can disregard a self-serving declaration
that states only conclusions and not facts that would be admissible evidence." Id. at
17
15cv1044 WQH (RBM)

1

2

497 (citations omitted). "[T]he court must consider whether the evidence presented
in the affidavits is of sufficient caliber and quantity to support a jury verdict for the

3
4

nonmovant. A 'scintilla of evidence,' or evidence that is 'merely colorable' or 'not

5

significantly probative,' is not sufficient to present a genuine issue as to a material

6

fact." United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542

7
8

9

(9th Cir. 1989) (citations omitted).
"A trial court can only consider admissible evidence in ruling on a motion for

10
summary judgment." Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th
11
12

Cir. 2002). "We have repeatedly held that unauthorized documents cannot be

13

considered in a motion for summary judgment." Id. "To survive summary

14
15

judgment, a party does not necessarily have to produce evidence in a form that

16

would be admissible at trial, as long as the party satisfies the requirements of

17

Federal Rule of Civil Procedure 56." Block v. City of Los Angeles, 253 F.3d 410,

18
19
20

418-419 (9th Cir. 2001 ).

V.

DISCUSSION

21

22

Defendants argue that Plaintiff has failed to establish a triable issue of material

23
24
25
26

fact that Defendants R. Davis, A. Buenrostro, C. Meza, A. Parker, R. Solis, R.
Santiago, and K. Seibel all retaliated against him for engaging in First Amendment
conduct. (Doc. 172.) Defendants argue that the evidence shows that Defendants

27
28

acted solely on the basis of legitimate penological interests and not in retaliation
18
15cv1044 WQH (RBM)

l

2

against Plaintiff. (Doc. 172, at 20.) Defendants also argue that Plaintiffs state law
claims do not contain a private right of action or other civil-enforcement

3
4

mechanism. (Doc. 172-1, at 23 .) Finally, Defendants argue that they are entitled to

5

qualified immunity because their conduct did not violate clearly established

6

statutory or constitutional rights of which a reasonable person would have known.

7

8

(Id.)

9
10
11
12

In opposition to Defendants' motion for summary judgment, Plaintiff has
submitted declarations from himself and from other inmates that only address the
direct actions of Defendants Buenrostro, Meza, Davis, Parker, and Solis. (Doc.

13
14

15

16

119.) Based on the evidence submitted by the parties, the Court makes the
following recommendations:

A. Defendants are entitled to summary judgment as to Plaintifrs First

17
18

19

20

Amendment retaliation claims against R. Solis, R. Santiago, and K.
Seibel.
The fundamentals of a retaliation claim are easily summarized: "Within the

21

22

prison context, a viable claim of First Amendment retaliation entails five basic

23

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

24

19
15cv1044 WQH (RBM)

1

2

F.3d 559, 567-68 (9th Cir. 2005) (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th
Cir. 2000)). It is the plaintiffs burden to prove each of these elements. Pratt v.

3
4

5

Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
Under the first element, plaintiff need not prove that the alleged retaliatory

6
action, in itself, violated a constitutional right. Id. (to prevail on a retaliation claim,
7
8

plaintiff need not "establish an independent constitutional interest" was violated);

9

see also Hines v. Gomez, 108 F.3d 265, 268 (9th Cir. 1997) (upholding jury

10
determination of retaliation based on filing of a false rules violation report); Rizzo
11

12

v. Dawson, 778 F .2d 527, 531 (9th Cir. 1985) (transfer of prisoner to a different

13

prison constituted adverse action for purposes of retaliation claim). The interest

14
15
16
17

cognizable in a retaliation claim is the right to be free of conditions that would not
have been imposed but for the alleged retaliatory motive.
To prove the second element - retaliatory motive - plaintiff must show that

18
19
20
21

his protected activities were a "substantial" or "motivating" factor behind the
defendant's challenged conduct. Brodheim v. Cry, 584 F.3d 1262, 1269, 1271 (9th
Cir. 2009). Plaintiff must provide direct or circumstantial evidence of defendant's

22
23
24
25

alleged retaliatory motive; mere speculation is not sufficient. See McCollum v.
CDCR, 647 F.3d 870, 882-83 (9th Cir. 2011); accord Wood v. Yordy, 753 F.3d
899, 905 (9th Cir. 2014). In addition to demonstrating defendant's knowledge of

26
27
28

plaintiffs protected conduct, circumstantial evidence of motive may include: ( 1)
proximity in time between the protected conduct and the alleged retaliation; (2)
15cv1044 WQH (RBM)

1

2

defendant's expressed opposition to the protected conduct; and (3) other evidence
showing that defendant's reasons for the challenged action were false or pretextual.

3
4
5

6

McCollum, 647 F.3d at 882.
The third element concerns a prisoner's First Amendment right to access the
courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). While prisoners have no

7
8

freestanding right to a prison grievance process, see Ramirez v. Galaza, 334 F.3d

9

850, 860 (9th Cir. 2003), "a prisoner's fundamental right of access to the courts

10

11

hinges on his ability to acr;ess the prison grievance system." Bradley v. Hall, 64

12

F.3d 1276, 1279 (9th Cir. 1995), overruled on other grounds by Shaw v. Murphy,

13

532 U.S. 223, 230 n.2 (2001). Because filing administrative grievances and

14
15

initiating civil litigation are protected activities, it is impermissible for prison

16

officials to retaliate against prisoners for engaging in these activities. Rhodes, 408

17

F.3d at 567-68. Protected speech also includes an inmate's statement of intent to

18
19

pursue an administrative grievance or civil litigation. Watison v. Carter, 668 F.3d

20

1108, 1114 (9th Cir. 2012); Rhodes, 408 F.3d at 567; Bruce v. Ylst, 351F.3d1283,

21

1288 (9th Cir. 2003).

22
23
24
25

Under the fourth element, plaintiff need not demonstrate a "total chilling of his
First Amendment rights," only that defendant's challenged conduct "would chill or
silence a person of ordinary firmness from future First Amendment activities."

26
27
28

Rhodes, 408 F.3d at 568-69 (citation and internal quotation marks omitted).
Moreover, direct and tangible harm will support a retaliation claim even without
15cv1044 WQH (RBM)

1

demonstration of a chilling effect on the further exercise of a prisoner's First

2
Amendment rights. Id. at 568 n.11. "[A] plaintiff who fails to allege a chilling
3

4

effect may still state a claim ifhe alleges he suffered some other harm" as a

5

retaliatory adverse action. Brodheim, 584 F.3d at 1269 (citing Rhodes, 408 F.3d at

6
568 n.11).
7
8

9

Regarding the fifth element, the Ninth Circuit has held that preserving
institutional order, discipline, and security are legitimate penological goals that, if

10
they provide the motivation for an official act taken, will defeat a claim of
11
12

retaliation. Barnett v. Centoni, 31F.3d813, 816 (9th Cir. 1994); Rizzo, 778 F.2d at

13

532. When considering this final factor, courts should '"afford appropriate

14
15

'
deference and flexibility_ to prison officials in the evaluation of proffered legitimate

16

penological reasons for conduct alleged to be retaliatory." Pratt, 65 F .3d at 807

17

(quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). Plaintiff bears the burden of

18
19

pleading and proving the absence of legitimate correctional goals for defendant's

20

challenged conduct. Pratt, 65 F.3d at 806. A plaintiff must prove that the alleged

21

retaliatory motive was the but-for cause of the challenged actions. Hartman v.

22
23
24
25

Moore, 547 U.S. 250, 260 (2006).
Here, Plaintiff has failed to provide sufficient admissible evidence that
Defendants K. Seibel, R. Solis,_ and R. Santiago retaliated against him for no valid

26
27
28

penological reason while he was incarcerated at RJ Donovan. Defendant Seibel
never had any knowledge that others were planning to retaliate, or were retaliating,
22
15cv1044 WQH (RBM)

1

2

against Plaintiff at any time. (Seibel Deel. if 10.) Defendants Seibel and R. Solis
never took any adverse action against Plaintiff for any protected conduct that he

3
4

may have engaged in, including placing Plaintiffs name on a list for transfer out of

5

RJ Donovan in September or October 2014; in fact, Plaintiff was recommended to

6

be retained at RJ Donovan, and this recommendation was endorsed on March 26,

7

8

2014 and again on September 12, 2014. (Seibel Deel. ifif 3, 8-9; Solis Deel. if 3.)

9

Defendant Santiago never retaliated against Plaintiff for any reason or

10
11

manufactured any charges against him. (Santiago Deel. ifif 2-3.) And Defendants

12

Seibel, Santiago, and Solis never called Plaintiff a snitch or child molester at any

13

time. (Seibel Deel.

if 11; Santiago Deel. if 5; and Solis Deel. if 5.)

14
15

The only evidence submitted by Plaintiff that remotely addresses the behavior

16

of Defendants K. Seibel, R. Solis, and R. Santiago is the following: Inmate Lavale

17

Jones declared that Defendant Solis told him that he would get "transferred too" if

18
19

he did not tell him which officers "Roberts is doing 602's or legal paperwork

20

against." (Jones Deel. if 3, Doc. 119, at 77.) Inmate Kelvin Singleton declared that

21

in July 2014, inmates who were West Coast Crip members said a correctional

22
23

officer offered "five hundred dollars" to "fuck up an EOP inmate named Roberts .. .

24

for snitching on him and some other officers who had come on A yard from the

25

hole." (Singleton Deel. if 3-5; Doc. 119, at 110-111.) He stated that he heard from

26
27
28

other inmates that Roberts was attacked during night yard. (Id.) Finally, Plaintiff
submitted his own declaration stating the following: that Defendant Solis told
23
15cv1044 WQH (RBM)

1

2

another inmate that he heard that Roberts was going to be transferred and that, as a
result, he was fearful that Defendant Solis was "going to cause me harm again

3
4

because of filing 602' s or legal actions against RJDCF prison officials" (Roberts

5

Deel. irir 54-55); that Defendant Ciborowski told him that he was going to be

6

transferred and that Chief Deputy Warden Seibel "is tired of you with all these

7

ir 50); and that inmate Billy Titus told him that he overhead

8

602's" (Roberts Deel.

9

Defendant Santiago telling Captain Sanchez that Roberts "had inmate Goldrnas,

10
11
12
13

CDCR # F-31549, injure himself in order to set Officer Buenrostro up." (Roberts
Deel. if 49.)
Despite this proffer, Plaintiff fails to convince the Court that he has submitted

14
15

sufficient evidence establishing each of the five elements of a First Amendment

16

retaliation claim as to Defendants Santiago, Seibel, or Solis. To begin, other than

17

providing inadmissible hearsay statements, Plaintiff has not directly addressed the

18
19

actions of Defendants Santiago or Seibel in his own declaration and has failed to

20

submit any admissible evidence that Defendants Santiago or Seibel retaliated

21

against him. With regard to Defendant Solis, although inmate Lavale Jones declared

22
23

that Defendant Solis told him that he would get "transferred too" if he did not tell

24

him which officers "Roberts is doing 602's or legal paperwork against" (Jones

25

Deel. if 3, Doc. 119, at 77), the record shows that Plaintiff was recommended to be

26
27

28

retained and remained at RJ Donovan in the fall of2014; moreover, other than
offering hearsay statements and conclusory arguments, Plaintiff has failed to
24
15cv1044 WQH (RBM)

1

2

specify with particularity the actual "harm" Defendant Solis committed against him
specifically to chill his First Amendment rights. Because the Court finds that

3

4

Plaintiff has failed to present any evidence of sufficient caliber or quantity to

5

support a jury verdict in his favor as to the retaliation claims made against

6
Defendants K. Seibel, R. Santiago, and R. Solis, the Court recommends that

7
8

Defendants' motion for summary judgment as to the retaliation claims against these

9

three Defendants be granted.

10
11

B. Some of Plaintiff's First Amendment retaliation allegations against

12

Defendants Parker, Meza, Davis, and Buenrostro survive summary

13

judgment.

14
15

In Defendants' motion for summary judgment, Defendants Parker, Meza,

16

Davis, and Bue11rostro have submitted evidence that they did not retaliate against

17

Plaintiff in violation of the First Amendment. However, unlike the lack of evidence

18
19

against the other three Defendants, Plaintiff has presented enough evidence that

20

could support a jury verdict that Defendants Parker, Meza, Davis, and Buenrostro

21

retaliated against Plaintiff for the sole purpose of chilling his First Amendment

22
23
24

25

rights.

Defendant Parker
Defendant Parker declared that he did not confiscate a civil rights lawsuit

26
27

28

during a search of Plaintiffs cell on June 3, 2014, that he did not '~concoct" false
disciplinary charges against Plaintiff, that he did not "plant" a bag of tobacco on
25
15cv1044 WQH (RBM)

1

2

Plaintiffs bunk, that he did not search Plaintiffs cell in retaliation for any protected
conduct that Plaintiff may have engaged in or for any other improper reason, and

3

4

that he did not conspire with Defendant Buenrostro, or any other correctional staff

5

member or inmate, to file false disciplinary charges against Plaintiff. (Parker Deel.

6

7

ilil 2, 4, and 6.) In his opposition papers, Plaintiff has provided the following

8

evidence to support his First Amendment retaliation allegations: Plaintiff submitted

9

his own declaration stating that Defendant Parker confiscated a motion for

10
11

preliminary injunction with attached declarations during a cell search, which denied

12

him the ability to support his allegations for a preliminary injunction. (Roberts

13

Deel. ilil 42, 44, Doc. 119, at 37-38.)

14
15

Defendant Meza

16

Defendant Meza declared that he did not take any adverse action against

17

Plaintiff because Plaintiff corresponded with the "class monitors" of CDCR' s

18
19

mental health delivery system, that he never interfered with or refused to process

20

Plaintiffs outgoing or incoming mail, that he never confiscated or otherwise

21

obtained any of Plaintiffs legal materials, that he never manufactured any charges

22
23
24
25

against Plaintiff at any time, and that he never called Plaintiff a snitch or child
molester. (Meza Deel. iii! 2, 3, 4, 5, and 6.) In his opposition papers, Plaintiff has
provided the following evidence to support his First Amendment retaliation

26
27
28

allegations: He submitted his own declaration stating that Defendant Meza refused
to process as outgoing mail a Coleman letter to class monitors on March 6, 2014 as
26
15cv1044 WQH (RBM)

3
4

officers and that he said that he refused to give him "disinfect, cell phones, lighters,

5

tobacco ... until one of you guys put Bull in the hospital." (Squires Deel. if 2, Doc.

6

119, at 95.)

7

8

Defendant Davis

9

Defendant Davis declared that he never participated in an "ongoing conspiracy

10
11

to purposefully punish [Plaintiff] for exercising his right to file inmate grievances"

12

and that he never called Plaintiff a snitch or child molester. (Davis Deel. ~ii 2-3.) In

13

his opposition papers, Plaintiff has provided the following evidence to support his

14
15

First Amendment retaliation allegations: Plaintiff submitted his own declaration

16

stating that Defendant Davis engaged in unlawful and repressive conduct against

17

him as he attempted to access RJ Donovan's inmate appeal procedure to complain

18
19

about the Defendants' conduct towards him, including paying Black Street Gang

20

members money to attack him, which occurred on July 14, 2014. (Roberts Deel. ifif

21

22 and 53, Doc. 119, at 33, 40.) He also submitted the declaration of inmate Mark

22
23

Barbee, who declared that Defendant Davis told him that Roberts is a snitch

24

because he "wrote a letter to the Warden and got a lot of investigations going

25

against me and other officers." (Barbee Deel.~ 3, Doc. 119, at 89.)

26
27

28
27
15cvl044 WQH (RBM)

1
2

Defendant Buenrostro
Defendant Buenrostro submitted a declaration stating that he did not take any

3
4

adverse action against Plaintiff because Plaintiff corresponded with the "class

5

monitors" of CDCR's mental health delivery system, that he did not interfere with

6
7

or refuse to process Plaintiffs incoming or outgoing mail, and that he did not

8

confiscate a civil rights lawsuit during a search of Plaintiffs cell on June 3, 2014.

9

(Buenrostro Deel. ifif 2, 3, and 11.) Defendant Buenrostro stated that he did not

10
11

"concoct" false disciplinary charges against Plaintiff, that he did not manufacture

12

any charges against Plaintiff at any time or asked others to do so, and that he has

13

never taken any adverse action against Plaintiff that was not based upon a

14
15

legitimate, penological reason. (Buenrostro Deel.

if~

12, 20.) Defendant Buenrostro

16

never told Plaintiff that he would "get some payback," never attempted to set up

17

Plaintiff to be injured by other inmates, has never threatened Plaintiff or bribed or

18
19

caused another inmate to assault, attack, or hurt Plaintiff, and has never called

20

Plaintiff a snitch or child molester at any time. (Buenrostro Deel. ifif 21-24.) Finally,

21

Defendant Buenrostro stated that he conducted a clothed body search of Plaintiff

22
23

for a valid penological reason, that he never plotted to transfer Plaintiff to another

24

prison (which in any event did not happen in October 2014), and only searched

25

Plaintiffs cell for valid penological reasons. (Buenrostro Deel. inf 5, 8, 13, and 15.)

26
27

28

In his opposition papers, Plaintiff has provided the following evidence to
support his First Amendment retaliation allegations: Plaintiff stated that Defendant
28

15cv1044 WQH (RBM)

l
2

Buenrostro refused to process as outgoing mail a Coleman letter to class monitors
on March 6, 2014; that he was retaliated against by Defendant Buenrostro during a

3
4

pat-down search ("sexual assault"); that Defendant Buenrostro falsely accused him

5

of having contraband during the search of his cell on June 3, 2014; that Defendant

6
Buenrostro told inmate Gerald Marshall that Plaintiff was a "snitch;" and that
7

8

Defendant Buenrostro told inmate Curtis Rusher that Plaintiff was a "child

9

molester." (Roberts Deel.~~ 27, 31, 45, 56-58, Doc. 119, at 34-35, 38, 41.) Plaintiff

10
11

also submitted the following inmate declarations: Inmate Juley Gordon stated that

12

Defendant Buenrostro told him that anyone found helping Plaintiff file 602 appeals

13

would be on his hit-list (Gordon Deel.~ 7, Doc. 119, at 83); Inmate Gerald

14
15

Marshall declared that Defendant Buenrostro called Plaintiff Roberts a "snitch,"

16

told him the Crips "got off on his ass a couple of months ago on the yard," and told

17

him not to help Plaintiff with his legal papers (Marshall Deel.

~

1, Doc. 119, at 98);

18
19

Inmate Curtis Rusher declared that Defendant Buenrostro told him that Plaintiff

20

was arrested for child molestation in the 1980s and expressed his desire to see

21

Plaintiff"handled good enough to get him out of here!" (Rusher Deel.~ 2, Doc.

22
23

119, at 100); and Inmate Keith Williams declared that Defendant Buenrostro told

24

him if he and his "homeboys" put Plaintiff"in the hospital this time," he would

25

bring "anything you want in here" (Williams Deel.~ 1, Doc. 119, at 103).

26
27
28

Ill
Ill
15cvl044 WQH (RBM)

1

2

Analysis
While Plaintiff has failed to put forth sufficient evidence demonstrating that a

3
4

retaliatory motive to chill Plaintiffs First Amendment rights was the but-for cause

5

of Defendant Buenrostro's clothed body search of Plaintiff, the searches of his cell

6
7

for contraband, or Plaintiffs retention status at RJ Donovan, Plaintiff has

8

demonstrated that there is a need for a trial to decide the following: 1) whether

9

Defendant Parker confiscated his legal papers to deny him access to the courts; 2)

10

11

whether Defendant Buenrostro labeled Plaintiff a snitch or a child molester in front

12

of other inmates in order to chill Plaintiffs First Amendment rights; 3) whether

13

Defendant Davis labeled Plaintiff a snitch to another inmate and engaged in

14

15

retaliatory conduct including paying others to harm Plaintiff in order to chill

16

Plaintiffs First Amendment rights; 4) whether Defendant Meza called Plaintiff a

17

snitch in front of another inmate and made attempts to deter Plaintiffs First

18
19

20
21

Amendment conduct; 5) whether Defendant Buenrostro recruited other inmates to
harm Plaintiff in order to chill Plaintiffs First Amendment rights; and 6) whether
Defendant Buenrostro refused to process his litigation mail or otherwise deterred

22
23
24

25

Plaintiffs ability to pursue the legal process in order to chill Plaintiffs First
Amendment rights. Viewing the facts in light most favorable to Plaintiff, the Court
concludes that by providing evidence that Defendant Parker confiscated his legal

26
27

28

papers and that Defendants Buenrostro, Meza, and Davis referred to Plaintiff as a
snitch in front of other inmates, put Plaintiff at potential risk of assault from other
15cvl044 WQH (RBM)

3

4

Parker's, Meza's, Davis's, and Buenrostro's actions chilled the exercise of his First

5

Amendment rights for no valid penological reason.

6
Although defense counsel has raised the defense of qualified immunity which
7

8

protects "government officials ... from liability for civil damages insofar as their

9

conduct does not violate clearly established statutory or constitutional rights of

10
11

which a reasonable person should have known," Harlow v. Fitzgerald, 457 U.S.

12

800, 818 (1982), "courts may not resolve genuine disputes of fact in favor of the

13

party seeking summary judgment," and must, as in other cases, view the evidence

14
15

in the light most favorable to the nonmovant. Tolan v. Cotton, 134 S. Ct. 1861,

16

1866 (2014 ). The inquiry of whether a constitutional right was clearly established

17

must be undertaken in light of the "specific context" of the case and not as a broad

18
19

general proposition. Saucier v. Katz, 533 U.S. 194, 202 (2001) (overruled on other

20

grounds). The relevant, dispositive inquiry in determining whether a right is clearly

21

established is whether it would be clear to a reasonable officer that his conduct was

22
23
24
25

unlawful in the situation he was in. Id. Whether the alleged adverse acts of
harassment and intimidation taken by Defendants Parker, Davis, Meza, and
Buenrostro would likely chill a person of ordinary firmness from continuing to

26
27

exercise his First Amendment rights remains a question of fact, and thus the issue

28
31
15cv1044 WQH (RBM)

1

2

of qualified immunity with respect to Defendants Parker, Davis, Meza, and
Buenrostro cannot now be decided as a matter of law.

3
4

In sum, Defendants' motion for summary judgment of Plaintiffs First

5

Amendment retaliation claims against Defendants Parker, Davis, Meza, and

6
7

Buenrostro should be denied.

8

C. Plaintiff's state law claims do not survive summary judgment.

9
10

11

In addition to his federal claims, Plaintiff has asserted state law claims under
California Penal Code§§ 2600, 2651, and 260l(b) (Doc. 1,

at~~

82-84) and under

12

Title 15 of the California Code of Regulations, §§ 3004, 3060(a), 3061, 3084. l(d),

13

3084.2(f), 3130, 3133(e), 314l(c)(l), 3142, 3144, 3268.2 (c)(l), 3271, 329l(c), and
I

14
15

3401.5 (a)(3 )(E)(F)3 (Doc. 1, at~~ 84-95). Plaintiff has also asserted a general

16

negligence claim against Defendant Seibel "for failing to institute measures to

17

control subordinates and supervise" the correctional officer Defendants. (Doc. 1, at

18
19

~

96.) In their reply brief, Defendants make two arguments: 1) Plaintiff failed to

20

produce evidence showing that Defendants are not entitled to summary judgment

21

on Plaintiffs state law claims; and 2) the state law provisions cited by Plaintiff do

22
23

not contain any civil-enforcement provisions. (Doc. 175, at 3-5.)

24
25
26
27
28

3

Plaintiff argues that "Defendant Buenrostro violated California law on April
2, 2014 by committing sexual assault or battery upon Plaintiffs person." (Doc. 1, at
28.) As CAL. CODE REGS. tit 15, § 3401.5 is a California prison regulation that
addresses sexual misconduct by prison staff, the Court interprets Plaintiff's state
law assault and battery claim as an alleged violation of this rule.
32
15cvl044 WQH (RBM)

1

2

With regard to Plaintiff's alleged violations of the California Penal Code,
Plaintiff fails to state a claim. See Logan v. Lonigro, 2013 WL 4049096, at *3

3

4

(E.D. Cal. August 7, 2013). Plaintiff may not sue Defendants for violations of the

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Penal Code in federal court. Ellis v. City of San Diego, 176 F .3d 1183, 1189 (9th

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Cir. 1999) (finding the district court properly dismissed claims brought under

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various sections of the California Penal Code because those code sections did not

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create enforceable individual rights); see Gonzaga University v. Doe, 536 U.S. 273,

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283-86 (2002) (basing a claim on an implied private right of action requires a

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showing that the statute both contains explicit rights creating terms and manifests

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an intent to create a private remedy); see also Allen v. Gold Country Casino, 464

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F.3d 1044, 1048 (9th Cir. 2006) (no private right of action for violation of criminal
statutes).
With regard to Plaintiff's alleged violations of Title 15 of the California Code

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of Regulations, "[t]he Court is unaware of any authority for the proposition that

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there exists a private right of action available to Plaintiff for violation of Title 15

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regulations." Logan v. Lonigro, 2013 WL 4049096, at *3 (E.D. Cal. August 7,

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2013). Under California law, "[i]t is well settled that there is a private right of

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action to enforce a statute "only if the statutory language or legislative history

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affirmatively indicates such an intent. ... Particularly when regulatory statutes

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provide a comprehensive scheme for enforcement by an administrative agency, the
courts ordinarily conclude that the Legislature intended the administrative remedy
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to be exclusive unless the statutory language or legislative history clearly indicates
an intent to create a private right of action." Thurman v. Bayshore Transit

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Management, Inc., 138 Cal. Rptr. 3d 130, 146 (Cal. Ct. App. 2012) (citations and

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internal quotations omitted). Under Title 15 of the California Code of Regulations,

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the State of California provides its prisoners and parolees the right to appeal

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administratively "any departmental decision, action, condition or policy perceived

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by those individuals as adversely affecting their welfare." CAL CODE REGS. tit 15, §

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3084.l(a). A prisoner may even file appeals alleging violations of prison

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regulations by correctional officers. See id.§ 3084.l(e); see Houseman v. Padilla,

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2002 WL 1578860, at* 1 (N.D. Cal. July 12, 2002). Because Title 15 provides an

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administrative remedy to enforce its provisions and the statutory language and

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legislatively history do not ~learly indicate an intent to create a private right of

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action to enforce Title 15 regulations in a court of law, the Court finds that Plaintiff

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has failed to state an enforceable claim in federal court under any of the provisions

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that he has cited under Title 15. Cf. Logan v. Lonigro, 2013 WL 4049096, at *3

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(E.D. Cal. Aug. 7, 2013) (no private right of action under California Government

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Code section 3000); Bailey v. Root, 2010 WL 2803950, at *4 (S.D. Cal. July 14,
2010) (no private right of action for speedy-trial provisions of the California
Constitution). Even if there were arguably a private right of action enforceable in a

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court of law under any of the regulations in Title 15, "[t]he district courts may
decline to exercise supplemental jurisdiction over a [state law] claim" if it "raises a
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novel or complex issue of State law." 28 U.S.C. § 1367(c)(l). On discretionary
grounds, the Court recommends not exercising supplemental jurisdiction over these

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arguably non-enforceable state law claims under Title 15 in federal court.
Finally, with regard to Plaintiffs general negligence claim against Defendant
Seibel "for failing to institute measures to control subordinates and supervise" the

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correctional officer Defendants (Doc. 1, at~ 96), Plaintiff has failed to submit any

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admissible evidence in the form of a declaration or other means supporting his

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allegation against Defendant Siebel, who has denied any wrongdoing. In her

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declaration, Seibel specifically states that she never conspired with any correctional

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staff member, inmate, or any other person to retaliate against Plaintiff or otherwise

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violate his civil rights and that she had no knowledge that any correctional staff

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member acted inappropriately toward Plaintiff or was retaliating against Plaintiff.

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(Seibel Deel.~ 4, Doc. 172-8, at 2.) She had no knowledge that any disciplinary

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charges filed against Plaintiff were false or fabricated, and she had not seen any

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such evidence. (Id.) Seibel' s declaration further illustrates the actions she took

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relative to Plaintiff and the efforts she made to ensure that all her actions relative to

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Plaintiff were proper. There is no evidence showing that Seibel breached any duty
owed to Plaintiff, and Plaintiff does not submit any admissible evidence rebutting
the evidence in Seibel's declaration. As such, summary judgment as to any

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negligence claim against Seibel is warranted.

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VI. CONCLUSIONS
For the aforementioned reasons, the Court recommends the following :

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1) that Defendants' summary judgment motion be granted as to Plaintiffs
First Amendment claims against Defendants Solis, Santiago, and Seibel;
2) that Defendants' summary judgment motion be denied as to Plaintiffs First

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Amendment claims against Defendants Parker, Davis, Meza, and

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Buenrostro; and

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3) that Defendants' summary judgment motion be granted as to all of

Plaintiffs state law claims.
The Court submits this Report and Recommendation to United States District

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Judge William Q. Hayes under 28 U.S.C. § 636(b)(l) and Local Civil Rule HC.2 of
the United States District Court for the Southern District of California.
IT IS HEREBY ORDERED that any party to this action may file written

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objections with the Court and serve a copy on all parties no later than February 14,

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2019. The document should be captioned "Objections to Report and

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Recommendation."

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The parties are advised that failure to file objections within the specified time

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may waive the right to raise those objections on appeal of the Court's Order. See

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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d

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1153 , 1157 (9th Cir. 1991).

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IT IS SO ORDERED.
DATE: January 25, 2019

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~RO
U.S. Magistrate Judge

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15cv1044 WQH (RBM)