Roberts v. Beard et al

Filing 178

ORDER ADOPTING REPORT AND RECOMMENDATION: The Report and Recommendation is adopted in full. (ECF No. 176 ). Defendants' motion for summary judgment (ECF No. 172 ) is granted as to Plaintiff's state law claims and granted as to Plaintiff&# 039;s First Amendment claims against Defendants Solis, Santiago, and Seibel. Defendants' motion for summary judgment (ECF No. 172 ) is denied as to Plaintiff's First Amendment claims against Defendants Parker, Davis, Meza, and Buenrostro. Signed by Judge William Q. Hayes on 3/14/2019.(All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TONY ROBERTS,

Case No.: 15cv1044-WQH-RBM
Plaintiff,

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v.

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ORDER

J. BEARD, et al.,
Defendants.

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HAYES, Judge:

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The matters before the Court are the motion for summary judgment filed by

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Defendants (ECF No. 172), the Report and Recommendation issued by the Magistrate

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Judge (ECF No. 176), and the objections filed by Plaintiff (ECF No. 177).

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I.

BACKGROUND

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On May 8, 2015, Plaintiff Tony Roberts, a state prisoner proceeding pro se, initiated

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this action by filing a Complaint pursuant to 42 U.S.C. § 1983 against Defendants A.

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Buenrostro, R. Davis, C. Meza, A. Parker, R, Santiago, K. Seibel, and R. Solis for violation

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of his First and Eighth Amendment rights. (ECF No. 1). Plaintiff claims that Defendants

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Meza and Buenrostro interfered with Plaintiff’s ability to submit grievances and

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complaints, searched his cell, falsified reports and disciplinary charges, and arranged for a

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prison transfer, in order to retaliate against Plaintiff for his grievances and complaints.

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Plaintiff claims that he was sexually assaulted and labeled a snitch and a child molester by

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Defendants. Plaintiff also brings causes of action arising under California law.

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On September 16, 2016, the Court dismissed Plaintiff’s Eighth Amendment claims

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other than the Eighth Amendment claim against Defendant Buenrostro for sexual assault.

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(ECF No. 46).

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On September 24, 2018, the Court granted summary judgment against Plaintiff as to

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his remaining Eighth Amendment claim against Defendant Buenrostro, and as to his First

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Amendment claim for the allegedly false and retaliatory April 2, 2014 rules violation

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report. (ECF No. 136). The Court declined to grant summary judgment in favor of

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Defendants on the grounds of exhaustion. The Court remanded the case to the Magistrate

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Judge to hold an evidentiary hearing to resolve the disputed material facts of whether the

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prison improperly failed to process Plaintiff’s alleged grievances on April 2, 2014; June

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23, 2014; and July 8, 2014, such that Plaintiff’s failure to exhaust would be excused.

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On November 16, 2018, the Magistrate Judge vacated the scheduled evidentiary

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hearing “[i]n light of the fact that Defendants have withdrawn their defense of exhaustion

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of administrative remedies.” ECF No. 170 at 1; see also ECF Nos. 169, 166 (noting

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withdrawal of exhaustion defense).

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On November 28, 2018, Defendants A. Buenrostro, R. Davis, C. Meza, A. Parker,

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R. Santiago, K. Seibel, R. Solis filed a motion for summary judgment (ECF No. 172) on

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the grounds that there is no private right of action for Plaintiff’s state law claims, that

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Defendants are entitled to qualified immunity, and that the evidence does not support

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Plaintiff’s retaliation claim. (ECF No. 172-1).

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On December 10, 2018, Plaintiff filed a response (ECF No. 174) in opposition to the
motion for summary judgment.
On December 27, 2018, Defendants filed a reply (ECF No. 175) in support of the
motion for summary judgment.

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On January 25, 2019, the Magistrate Judge issued a Report and Recommendation.

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(ECF No. 176), recommending that the Court grant summary judgment against Plaintiff as
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to the state law claims and the First Amendment claims against Defendants Solis, Santiago,

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and Seibel. The Report and Recommendation further recommends that the Court deny

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summary judgment against Plaintiff as to the First Amendment claims against Defendants

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Parker, Davis, Meza, and Buenrostro. The Report and Recommendation concludes that

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“Plaintiff has failed to put forth sufficient evidence demonstrating that a retaliatory motive

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to chill Plaintiff’s First Amendment rights was the but-for cause of Defendant Buenrostro’s

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clothed body search of Plaintiff, the searches of his cell for contraband, or Plaintiffs

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retention status at RJ Donovan.” Id. at 30. The Report and Recommendation concludes

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that triable issues of fact remain as to whether Defendants Parker, Davis, Meza, and

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Buenrostro engaged in retaliatory conduct, precluding summary judgment. Id. at 30–31.

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The Report and Recommendation further concludes, “Whether the alleged adverse acts of

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harassment and intimidation taken by Defendants Parker, Davis, Meza, and Buenrostro

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would likely chill a person of ordinary firmness from continuing to exercise his First

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Amendment rights remains a question of fact, and thus the issue of qualified immunity with

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respect to Defendants Parker, Davis, Meza, and Buenrostro cannot now be decided as a

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matter of law.” Id. at 31–32.

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On February 7, 2019, Plaintiff filed objections to the Report and Recommendation.
(ECF No. 177).

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The record reflects that Defendants have not filed any objection to the Report and
Recommendation or any response to Plaintiff’s objections.
II.

LEGAL STANDARD ON REPORT AND RECOMMENDATION

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The duties of the district court in connection with a report and recommendation

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issued by a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28

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U.S.C. § 636(b). The district judge must “make a de novo determination of those portions

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of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b).

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The district court need not review de novo those portions of a report and recommendation

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to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir.
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2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)

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(“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to

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review, de novo, findings and recommendations that the parties themselves accept as

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correct.”).

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III.

STATE LAW CLAIMS

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No party has filed an objection to the conclusion of the Report and Recommendation

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that summary judgment should be entered in favor of Defendants as to Plaintiff’s state law

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claims. The Court will adopt the Report and Recommendation (ECF No. 176) and grant

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Defendants’ motion for summary judgment (ECF No. 172) as to Plaintiff’s state law

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claims.

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IV.

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FIRST AMENDMENT CLAIMS AGAINST DEFENDANTS SOLIS,
SANTIAGO, AND SEIBEL

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No party has filed an objection to the conclusion of the Report and Recommendation

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that summary judgment should be entered in favor of Defendants Solis, Santiago, and

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Seibel as to Plaintiff’s First Amendment claims. The Court will adopt the Report and

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Recommendation (ECF No. 176) and grant Defendants’ motion for summary judgment

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(ECF No. 172) as to Plaintiff’s First Amendment claims against Defendants Solis,

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Santiago, and Seibel.

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V.

FIRST AMENDMENT CLAIMS AGAINST DEFENDANTS PARKER,
DAVIS, MEZA, AND BUENROSTRO

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Plaintiff objects to the conclusion of the Report and Recommendation that he “failed

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to put forth sufficient evidence demonstrating that a retaliatory motive to chill Plaintiff's

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First Amendment rights was the but-for cause of Defendants Parker and Buenrostro’s

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search of his cell.” (ECF No. 177 at 1). After conducting a de novo review of the Report

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and Recommendation and considering the entire file, including Plaintiff’s objections, the

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Court finds that the Report and Recommendation correctly concluded that Plaintiff has

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failed to put forth sufficient evidence demonstrating that a retaliatory motive to chill

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Plaintiffs First Amendment rights was the but-for cause of Defendant Buenrostro’s clothed
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body search of Plaintiff, the searches of his cell for contraband, or Plaintiff’s retention

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status at RJ Donovan.

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No party has filed an objection to the conclusion of the Report and Recommendation

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that summary judgment should be denied as to Plaintiff’s First Amendment claims against

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Defendants Parker, Davis, Meza, and Buenrostro. The Court will adopt the Report and

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Recommendation (ECF No. 176) and deny Defendants’ motion for summary judgment

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(ECF No. 172) as to Plaintiff’s First Amendment claims against Defendants Parker, Davis,

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Meza, and Buenrostro.

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VI.

CONCLUSION

IT IS HEREBY ORDERED that the Report and Recommendation is adopted in full.
(ECF No. 176).

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IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (ECF

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No. 172) is GRANTED as to Plaintiff’s state law claims and GRANTED as to Plaintiff’s

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First Amendment claims against Defendants Solis, Santiago, and Seibel.

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IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (ECF

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No. 172) is DENIED as to Plaintiff’s First Amendment claims against Defendants Parker,

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Davis, Meza, and Buenrostro.

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Dated: March 14, 2019

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