Yablonsky v. California Department of Correction & Rehabilitation et al

Filing 196

ORDER Denying Motions to Reconsider (ECF 187 & 194 ). Signed by District Judge Andrew G. Schopler on 9/18/2023. (All non-registered users served via U.S. Mail Service)(jms)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

3 John Henry YABLONSKY,
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Case No.: 18-cv-1122-AGS
ORDER DENYING MOTION TO
RECONSIDER (ECF 187 & 194)

Plaintiff,

5 v.
6 CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
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REHABILITATION, et al.,
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Defendants.
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When assessing whether a court should reconsider an order based on clear error, the

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decision must strike the Court “as wrong with the force of a five-week old, unrefrigerated

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dead fish.” Fisher v. Roe, 263 F.3d 906, 912 (9th Cir. 2001), overruled on other grounds

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by Payton v. Woodford, 346 F.3d (9th Cir. 2003). Plaintiff here complains that the Court

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made several clear errors in entering summary judgment against him. Because the alleged

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errors fail to meet this exacting standard, the reconsideration motion is denied.

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BACKGROUND

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“Plaintiff John Yablonsky is incarcerated at Richard J. Donovan Correctional

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Facility,” where he sued prison staff for violating “his First Amendment free-speech rights”

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and for retaliating against him “for filing grievances about these misdeeds.” (ECF 185,

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at 1–2.) Yablonsky accused prison staff of “unconstitutionally burdening his photocopying

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rights” by reading his legal documents instead of glancing over them for contraband. (Id.)

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This Court found the allegations were either “unfounded” or otherwise “justified by

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legitimate penological interests,” and thus granted summary judgment in favor of

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defendants. (Id.)

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Yablonsky filed an objection, which the Court construed as a motion to reconsider.
(See ECF 185 & 191.)

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DISCUSSION

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Reconsideration of summary judgment is appropriate only if the court “(1) is

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presented with newly discovered evidence, (2) committed clear error or the initial decision

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was manifestly unjust, or (3) if there is an intervening change in controlling law.” See Sch.

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Dist. No. IJ, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Yablonsky does not try to satisfy the first or third of these options. He did not offer

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any new evidence in his motion to reconsider or in his reply to defendants’ opposition.

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(ECF 185 & 194.) Nor did he file a signed affidavit attesting under penalty of perjury “what

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new or different facts and circumstances are claimed to exist which did not exist, or were

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not shown, upon such prior application.” See CivLR 7.1(i)(1). Yablonsky also does not cite

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any binding cases dated after the summary-judgment order that would change controlling

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law.

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He argues instead that this Court “failed to identify . . . a dispute about facts” and

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“improperly identified facts [and] established federal laws.” (ECF 187, at 2.) The Court

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interprets this generally as a clear-error claim.

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A.

Recycled Arguments

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Yablonsky spends most of his motion repeating the same arguments, facts, and case

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law that this Court already analyzed. “A motion for reconsideration is not an opportunity

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to renew arguments considered and rejected by the court, nor is it an opportunity for a party

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to re-argue a motion because it is dissatisfied with the original outcome.” See FTC v. Neovi,

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Inc., No. 06-CV-1952-JLS JMA, 2009 WL 56130, at *2 (S.D. Cal. Jan. 7, 2009).

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For instance, in his response to defendants’ summary-judgment motion, Yablonsky

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argued that prison staff retaliated against him for filing grievances by (1) “[r]eading

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Plaintiff’s legal documents,” (2) “[l]imiting library access,” (3) “confiscat[ing his] legal

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papers,” (4) “tricking him into withdrawing a grievance,” (5) “tamper[ing]” with his

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“outgoing mail,” and (6) “issuing a Rules Violation Report.” (ECF 185, at 11–19.) In

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Yablonsky’s motion to reconsider, he reiterates his retaliation arguments and expresses

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disagreement with the Court’s conclusions. (ECF 187, at 16–24).
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The Court already evaluated each claim of retaliation under the Rhodes test for First

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Amendment retaliation. See Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).

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Because this Court already considered the evidence and arguments regarding retaliation,

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there are no grounds for reconsideration. See also Ramser v. Laielli, No. 15-CV-2018-

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CAB-DHB, 2017 WL 3524879, at *1 (S.D. Cal. Aug. 15, 2017) (“[W]here the movant is

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attempting to obtain a complete reversal of the court’s judgment by offering essentially the

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same arguments presented on the original motion, the proper vehicle for relief is an

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appeal.”).

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B.

Clear Error

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A few of Yablonsky’s arguments may be construed as a new assertion of plain error.

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For there to be clear error or manifest injustice, “the reviewing court” must be “left with

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the definite and firm conviction that a mistake has been committed.” United States v. U.S.

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Gypsum Co., 333 U.S. 364, 395 (1948). The standard for clear error is “very exacting” and

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not easy to reach. Campion v. Old Republic Home Prot. Co., No. 09-CV-748-JMA NLS,

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2011 WL 1935967, at *1 (S.D. Cal. May 20, 2011). “Mere doubts or disagreements about

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the wisdom of a prior decision” do not suffice; the decision must be “more than just maybe

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or probably wrong; it must be dead wrong.” Id.

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Yablonsky contends that the Court erred by (1) misapplying federal law to find that

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prison officials have qualified immunity and do not “encroach on First Amendment

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correspondence rights when they read legal papers . . . before photocopying them”

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(ECF 185, at 10); (2) relying on defendants’ “false” “sworn declarations supporting their

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defenses” (ECF 187, at 2); (3) “reach[ing] too far” to rationalize the scanning policy (id.

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at 7); and (4) finding that his suggested alternatives to the scanning policy were

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unreasonable (id. at 12).

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1. Right to Confidential Photocopying / Qualified Immunity

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Yablonsky’s first allegation of clear error involves this Court’s conclusion that there

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is no clearly established constitutional right to confidential photocopying. (ECF 187,

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at 15.) “The qualified immunity doctrine shields government officials from civil liability
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so long as ‘their conduct does not violate clearly established statutory or constitutional

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rights of which a reasonable person would have known.’” (ECF 185, at 8 (quoting Pearson

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v. Callahan, 555 U.S. 223, 231 (2009)). In arguing that the right was clearly established,

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Yablonsky relies on the reversed case of Casey v. Lewis, 43 F.3d 1261, 1269 (9th Cir.

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1994). In Casey, the Ninth Circuit found that allegations of prison staff reading the inmates’

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legal photocopies sufficed “to state a claim for the denial of meaningful access to the

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courts” and caused “actual injury.”

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But the Supreme Court disagreed. It overturned the Ninth Circuit in Lewis v. Casey,

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518 U.S. 343 (1996). Although the Court’s decision does not specifically mention

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photocopying, it “found actual injury on the part of only one named plaintiff,” which

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stemmed from his “illiteracy,” not his inability to confidentially copy his legal documents.

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Id. at 358. So, the Court implicitly rejected any constitutional right to confidential

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photocopying. See id. No court since has suggested that this is an established right.

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To the contrary, as explained in this Court’s summary-judgment order, other courts

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have specifically held that there is no constitutional right to photocopying. See Jones v.

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Franzen, 697 F.2d 801, 803 (7th Cir. 1983) (“[B]road as the constitutional concept of

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liberty is, it does not include the right to xerox.”); see also Sands v. Lewis, 886 F.2d 1166,

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1169 (9th Cir. 1989) (rejecting “any constitutional right to free and unlimited

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photocopying”). Clearly established law must generally come from “controlling authority”

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or “a robust consensus of cases of persuasive authority.” Ashcroft v. al-Kidd, 563 U.S. 731,

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742 (2011) (cleaned up). As of today, courts have not established a constitutional right to

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photocopying, much less confidential photocopying. One day this may change. But as the

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law currently stands, the right is not clearly established “beyond debate.” Id. at 741. So,

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the Court’s conclusion about qualified immunity was not clearly erroneous.

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2. Reliance on “False” Declarations

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Yablonsky claims that the Court’s summary-judgment order was “tragic” because it

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relied on “defendants[’] sworn declarations supporting their defenses,” which “were false.”

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(ECF 187, at 2.) Yablonsky also raised this issue in his supplemental brief responding to
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defendants’ summary-judgment motion, claiming that defendants “based their motion upon

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declarations that are patently false.” (ECF 178, at 2.) He only mentions one defendant’s

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declaration (Blahnik’s) and alleges instances when defendants were “not truthful.” (Id.)

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Several of the falsehoods Yablonsky cites are his own misinterpretations or

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misunderstandings, not material facts. For example, Yablonsky states that Blahnik

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“suggests that [library] ducats will not accompany medical that same date,” so he “was not

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truthful.” (Id.) Yablonsky then refers to medical and library appointment slips dated the

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same day, as evidence of a falsehood. (ECF 177, at 485.) But Blahnik never claims that it

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is impossible to have both appointments in the same day—only that one of the reasons “an

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inmate may not attend a scheduled library appointment” is because “the inmate has a

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conflicting medical appointment.” (ECF 168-3, at 2 (emphasis added).)

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Other alleged falsehoods regard opinions about the staff’s diligence. For instance,

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Yablonsky disputes Blahnik’s “declaration that staff ‘work hard’ to make certain that

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access is available.” (ECF 178, at 3.) By way of impeachment, Yablonsky notes that an

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inmate named Irvin Basquez was not allowed access to the law library. (Id.) It is not clear

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that this anecdote categorically refutes Blahnik’s statement, especially since his declaration

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doesn’t mention Basquez. But even if this Court disregarded Blahnik’s assertion about the

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staff’s hard work—or ignored Blahnik’s declaration entirely—it would not materially

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change the legal analysis of Yablonsky’s constitutional claims.

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In short, nothing Yablonsky offers suggests that the declaration is “patently false”

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or makes the Court’s mention of that evidence in its summary-judgment ruling clear error.

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3. Scanning-Policy Justification

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Yablonsky asserts that the penological reasoning the Court provided for the scanning

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policy’s purpose is illogical. In its order, this Court rejected Yablonsky’s facial

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constitutional challenge to the scanning policy, concluding that it had a rational basis. In

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particular, the Court held as legitimate the declared goals of the policy, including reducing

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the distribution of contraband—such as child pornography and gang-related designs—and

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deterring the bullying of poorer inmates by better-funded ones. (ECF 185, at 3–5.)
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Yablonsky claims that it is “too far reaching speculation” that an inmate would photocopy

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child pornography because “an inmate who wished to copy child porn would be killed

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before he set his head upon a pillow that night if he were ‘THOUGHT’ to have child porn

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ideas much less a picture?????” (ECF 187, at 7.) Yablonsky contends that tattoo and

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pornography books “are permitted,” implying that the goal of censoring inflammatory

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materials is without merit. (Id.) Yablonsky also maintains that the Court’s “indication that

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inmates are bullied into making copies for someone who has money on their books trying

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to avoid the expense is too far to comprehend.” (ECF 187, at 13.) “The idea that they are

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making sure I am safe fails,” he contends, because “I am 6 foot and 240 pounds and have

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not lost a fight on this yard yet!” (Id.)

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But to satisfy the rational-relationship inquiry, prison officials need not “prove that

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problems occurred in the past or are likely to occur in the future.” (ECF 185, at 4 (citing

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Prison Legal News v. Ryan, 39 F.4th 1121, 1132 (9th Cir. 2022)).) Even though Yablonsky

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disagrees with the need to further these penological goals, it “is enough that officials might

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reasonably have thought that the policy would” advance “the jail’s interests.” Id. Besides,

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defendants offered evidence to prove past instances of inmates hiding such contraband in

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legal documents and coercing indigent inmates into making copies for others. (ECF 195,

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at 4–5.) Whether it has happened to Yablonsky himself is inconsequential.

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4. Alternatives to Scanning Policy

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Yablonsky points to multiple alternatives to the current policy of visually scanning

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documents, such as “shaking the documents, fanning them out, scanning them upside

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down, reviewing the copy machine memory after photocopying, or immediately sealing

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the copies in envelopes to be mailed from the library.” (ECF 185, at 7.) These proposals,

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he claims, would protect the confidentiality of his documents. (Id.) Yet this Court decided

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that these options “do not accomplish the identified goals of suppressing inflammatory

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materials, protecting indigent inmates, and preserving prison resources,” so the lack of

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“ready alternatives supports the scanning policy’s reasonableness.” (ECF 185, at 8 (cleaned

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up).)
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Yablonsky strongly disagrees with the Court’s reasoning. He asserts that the direct

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mailing “practice is used at other institut[]ions” and that “if an inmate tru[]ly wished to

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keep these papers hidden,” the inmate “would take them into the law library restroom and

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shove them into his anus, which staff will reject searching.” (ECF 187, at 12.) But as

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previously stated, this alternative fails to address “the prison’s last goal: discouraging well-

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off inmates from bullying poor ones into making photocopies, to dodge copying fees.”

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(ECF 185, at 8.) Simply disagreeing with the Court’s reasoning does not prove clear error.

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CONCLUSION

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As there are no new facts, changes in case law, nor evidence of clear error in the

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Court’s summary-judgment decision, Yablonsky’s motion to reconsider is DENIED.

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Dated: September 18, 2023

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___________________________

Hon. Andrew G. Schopler
United States District Judge

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