The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF ON ALL CLAIMS
Defendants Cohen, Soria, Leyba-Gonzalez, Howard, Clover and Easterling move for summary judgment on each of Plaintiff's claims. Plaintiff opposes the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court grants Defendants' motion for summary judgment on all claims. The Clerk of Court is instructed to close the file.
On July 18, 2006 Plaintiff commenced this action pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that Defendants violated his First and Fifth Amendment rights. Plaintiff, an immigration detainee housed at Corrections Corporation of America's San Diego County Correctional Facility ("SDCF"), generally alleges that Defendants delayed the mailing of his legal mail to the Board of Immigration Appeals ("BIA") and failed to provide him with adequate grievance procedures.
On March 15, 2006 Plaintiff submitted a Notice of Appeal for mailing to defendant Cohen, addressed to the BIA. (Compl. ¶14). The legal correspondence was mailed on March 20, 2006 and did not reach the BIA until March 29, 2006, two days after the deadline for filing a Notice of Appeal. The BIA dismissed Plaintiff's appeal as untimely. Id. Plaintiff requested that Cohen and Assistant Warden Howard provide him with documentation that he timely submitted the Notice of Appeal for mailing on March 20, 2006. They allegedly refused to provide such documentation. Id. He also provided a copy of a grievance to INS Custodian Cerone but he did not respond to Plaintiff's request.
On April 9, 2006 Plaintiff "submitted a grievance against the law library stating that he was being discriminated and mistreated by the law library staff." (Compl. ¶13). Plaintiff pursued his administrative remedies and, on April 28, 2006, Plaintiff appeared before Assistant Warden Clover. At that meeting, Plaintiff alleges that he "was humiliated by the Assistance Warden Clover and was threatened to be placed on administrative segregation if he submitted another grievance." Id.
Based upon the late arrival of the Notice of Appeal to the BIA and the alleged misconduct during administrative grievance procedures, Plaintiff alleges that Defendants violated his First Amendment right of access to the courts and Fifth Amendment right to due process and equal protection. Defendants move for summary judgment on all claims.
Procedurally, on May 18, 2007 the court granted the parties' joint motion to dismiss defendant Anthony J. Cerone with prejudice. On September 24, 2007 Defendants filed the present motion for summary judgment and, on October 2, 2007 the court provided Plaintiff with the required so-called Klingele/Rand notice and set a briefing schedule on the motion for summary judgment. On several occasions the parties requested and received additional time to conduct discovery. On May 8, 2008 the court received a document entitled "Plaintiff's Evidence to Support His Claim." This document is subject to a motion to strike on the ground of untimeliness.
A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original). The opposing party cannot rest on the mere allegations or denials of a pleading, but must "go beyond the pleadings and by [the party's] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citation omitted). The opposing party also may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
The court must examine the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt as to the existence of any issue of material fact requires denial of the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment, when "'the moving party bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence were uncontroverted at trial.'" Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (emphasis in original) (quoting International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)).
The First Amendment Claim
The thrust of the first cause of action is that Defendants delayed mailing a Notice of Appeal such that it arrived after the time for appeal had elapsed. The Government comes forward with evidence to show that Plaintiff, on March 15, 2006, requested funds for postage to mail the Notice of Appeal to the BIA. Plaintiff's counselor and Defendant Cohen approved the release of funds the next day on Thursday, March 16, 2007, and the facility investigator approved the release of funds on Friday. (DSOF ¶¶ 4, 5). Plaintiff's mail request was processed the next business day, on Monday March 20, 2006. (DSOF ¶6). However, the BIA did not received the Notice of Appeal until March 29, 2007, two days after the 30 day period for filing the appeal had expired. The BIA denied the ...