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Silva v. Campbell

September 8, 2008

MARCELINO CALDERON SILVA, PLAINTIFF,
v.
ROSANNE CAMPBELL, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff, a prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983 alleging civil rights violations. Currently under consideration is defendants' motion for summary judgment.

The case proceeds on the April 19, 2001, first amended complaint which alleges that defendant Acuna placed packets of heroin in plaintiff's cell, thereby subjecting him to disciplinary sanctions, including placement in administrative segregation. Plaintiff alleges that Acuna put the packets in his cell in retaliation for plaintiff having filed grievances. The complaint also alleges that defendant Campbell refused to release plaintiff from administrative segregation in retaliation for plaintiff having filed grievances. As explained below, plaintiff has failed to present evidence sufficient to show a genuine issue of material fact and defendants' motion must be granted.

I. Facts

At all times relevant to this action, plaintiff was a prisoner confined at Folsom State Prison ("FSP"). Defs.' Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof ("SUF") 1. It appears from the record that defendant Campbell was the Acting Warden and defendant O. Acuna was the Facility Captain of Unit I, but neither Campbell nor Acuna submit declarations explaining their positions at the prison during the relevant time period. Pl.'s Opp'n, Exs. B, C, at unnumbered p. 11.

It further appears from the record that plaintiff is not timid about filing grievances. On August 27, 1999, he filed one, designated Log # FSP 099-791, alleging that an unidentified counselor violated prison regulations by waiting more than 10 work days to respond to another grievance plaintiff had filed and by not completing a declaration necessary for plaintiff to proceed in forma pauperis in judicial proceedings. SUF 16; Defs.' Memo. of P. & A. in Supp. of Mot. for Summ. J. ("Defs.' Ex.") H at unnumbered p. 1. On December 20, 1999, plaintiff filed another grievance, designated Log # FSP 00-0051, in which he alleged that a guard failed to process his legal mail. SUF 16. On March 12, 2000, plaintiff filed yet another grievance, designated Log. No. 00-073, complaining that he had been having difficulties receiving envelopes and writing paper. Pl.'s Opp'n, Ex. E. Defendant Campbell signed the reviewer's action partially to grant the appeal on the second formal level of review. Id. At deposition, plaintiff admitted that he did not identify or mention Acuna as a reviewing officer in these grievances. SUF 16.

Plaintiff also helped other prisoners challenge prison policy and rules. Relevant here is the seismic retrofit project at FSP, which generated a great deal of airborne debris. Pl.'s Opp'n, Ex. A. In response to this condition, prisoners - contrary to prison policy - covered openings from their cells to the tiers. For a time, prison officials permitted this practice. However, on April 14, 2000, defendant Acuna directed guards to remove all "sheets, plastic, card board, privacy screens, curtains, etc.," that prisoners had put up in an attempt to shield themselves from airborne particles. Pl.'s Opp'n, Ex. B; SUF 17. Plaintiff submits a copy of a grievance that he drafted for a fellow prisoner.*fn1 Pl.'s Opp'n, Ex. C, unnumbered p. 1. The grievance complained about Acuna's directive, asserting that it violated the prisoner's rights and would expose him to harmful substances. Id. It is unclear whether plaintiff or a different prisoner copied and distributed this grievance to other prisoners. Defs.' Memo. of P. & A. in Supp. of Mot. for Summ. J., Ex. A ("Defs.' Ex.")(Excerpts of plaintiff's deposition)(hereafter "Pl.'s Dep."), at 31, 44. However, it is undisputed that using the grievance plaintiff had drafted as a template, about 250 prisoners (in addition to the prisoner plaintiff originally helped), filed this grievance complaining about Acuna's directive. Pl.'s Dep., at 31, 44; SUF 17. Plaintiff did not sign any of these grievances or submit one on his own behalf. SUF 18; Pl.'s Dep., at 18. Defendant Acuna signed the first formal level response denying the April 20, 2000, appeal that plaintiff had prepared. Pl.'s Opp'n, Ex. C, unnumbered p. 7.

On July 13, 2000, guards searched various cells on the tier where plaintiff was housed. SUF 2. The record reveals no connection between this search and the seismic retrofit activities. During the search, a guard, S. Novikoff, found three packets of a suspicious substance tucked into a bible in the cell plaintiff shared with a fellow prisoner. SUF 2; Pl.'s Dep., at 45; Defs.' Memo. of P. & A., Ex. B, at 1 (Rules Violation Report of 7/13/00). The bible was written in Spanish, which plaintiff and his cellmate both read and spoke. Defs.' Ex. G, at unnumbered p. 2. It was found in what prison officials deemed to be a "common area," in the bottom bunk on a pillow. Defs.' Ex. B, at 1; Defs.' Ex. G, at unnumbered p. 2. Based on field testing, prison officials tentatively determined that the substance was heroin. Pl.'s Opp'n, Ex. G, at p. 2. That the drug was contained in three separate packets suggested to prison officials that it was intended for sale, as opposed to personal use. SUF 2. Consequently, a rules violation report was filed charging plaintiff with the distribution of narcotics. Id. Officials charged his cellmate with the same infraction. Pl.'s Opp'n, Ex. I, at 2. A July 31, 2000, laboratory report confirmed that the substance was heroin. Pl.'s Opp'n, Ex. J.

Prison officials then placed plaintiff in administrative segregation pending a hearing on the charge.*fn2 SUF 3. Prison officials also referred the cases of both plaintiff and his cell-mate to the District Attorney's Office for possible criminal prosecution. SUF 5; Pl.'s Opp'n, Ex. I, at 2. Pursuant to prison regulations, on July 24, 2000, plaintiff waived his right to a timely prison disciplinary hearing, pending the District Attorney's decision whether to pursue criminal charges. SUF 4; Defs.' Ex. B, at unnumbered p. 1; see Cal. Code Regs. tit. 15, § 3320(b). Every 30 days from July 2000 through January 2001, plaintiff appeared before the Institutional Classification Committee for review of his placement in administrative segregation. SUF 6. At each appearance, the committee found that the placement was appropriate because the allegations in the rules violation report were serious. Id.

For some reason not clear in the record, the disciplinary hearing was held before the District Attorney decided whether to file criminal charges. Thus, on January 10, 2001, a disciplinary hearing was held on the allegations in the rules violation report. Defs.' Ex. G, at unnumbered p. 1-2. Plaintiff was found guilty of distribution of narcotics, as was his cellmate. SUF 9; Pl.'s Opp'n, Ex. I, at 2. As a result, plaintiff lost 180 days of credit and various privileges, such as visits, and was required to undergo drug testing and to participate in a substance abuse program. Defs.' Ex. G, at unnumbered p. 2. The findings specifically noted that plaintiff and his cellmate, who had been charged with the same offense, were equally responsible for the heroin found in the cell. Defs.' Ex. G, at unnumbered p. 2; Pl.'s Opp'n, Ex. I.

Plaintiff unsuccessfully appealed to the Director's Level of Review. Pl.'s Dep., at 49. The matter was submitted to a CSR to approve a six-month SHU term. Defs.' Ex. C. Plaintiff was released from administrative segregation. SUF 7. Ultimately, on March 9, 2001, the District Attorney notified prison officials that plaintiff would not be charged with any crime. SUF 8; Defs.' Ex. B, at unnumbered p. 1.

On August 9, 2001, the CSR to whom plaintiff's disciplinary conviction had been referred refused to approve the recommended penalties for two reasons. First, the evidence was insufficient to sustain a finding of trafficking in heroin. In particular, the CSR found that "all that's been proven is that inmate (i.e., Silva) and his cell mate were found to be in possession of 3 bindles that later proved positive for heroin that may or may not have been for personal consumption." Defs.' Ex. C. Second, the charge was made before lab testing verified that the substance was heroin. Id. The field test was insufficient to make the charges. Id. Thus, the CSR directed that the rules violation report be reissued and reheard, and prohibited the forfeiture of time credits. Id. However, prison officials did not do so promptly. It was not until another CSR reviewed plaintiff's file after he applied for a job in 2004 that the charge of possession of heroin was reheard in April of 2004. SUF 10; Pl.'s Dep., at 49. Plaintiff was found guilty of this lesser offense. SUF 10. At deposition, plaintiff testified that Acuna knew that plaintiff was not guilty of the drug charges. Pl.'s Dep., at 46.

Plaintiff filed a petition for a writ of habeas corpus in the state court challenging the disciplinary conviction and seeking the restoration of his time credits and an order directing that it be expunged. SUF 11. However, as noted above, once the charge was reduced to possession of heroin, the credits were restored. Pl.'s Dep., at 52.

Plaintiff denies ever having been involved in drug activities in prison. Pl.'s Dep., at 46. Defendants submit no evidence that plaintiff ever used or distributed drugs in prison. Plaintiff was not in his cell at the time of the search. Pl.'s Dep., at 46-47. According to plaintiff's deposition testimony the bible containing the drugs was close to the cell bars near the tray opening, which suggested to plaintiff that someone tossed it in. Pl.'s Dep., at 47.

Despite the events involving the heroin, plaintiff continues to file administrative grievances. SUF 12. He also continues to assist other prisoners with their grievances and legal work. Pl.'s Dep., at 67. This was the case both at FSP after the heroin charge and at California State Prison, ...


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