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Warren v. Kolender

January 21, 2009

ANDREW WARREN, PLAINTIFF,
v.
WILLIAM B. KOLENDER, SHERIFF; CAPT. DENNIS RUNYEN, CHIEF, SAN DIEGO COUNTY DETENTION SERVICES; CAPT. CAMPBELL (CJ); LT. SCOTT (CJ); LT. KOLENDER'S ELIVEN (CJ); SGT. P. LACHAPPELL (CJ); SGT. LEWIS (CJ); SGT. GLOVER, CLASSIFICATION; DEP. MCCRACKEN (CJ); CAPT. J. INGRASSIA (GBDF); LT. EVENS (GBDF); SGT. BREWER (GBDF); SGT. COYNE (CGDF); CORP. DICKERSON (GBDF); DEP. BARRERA (GBDF); DEP. SOBJAW (GBDF); DEP. BORDEN (GBDF); LT. WILLIAM KEMERY (IAD); SAN DIEGO COUNTY BOARD OF SUPERVISORS, JOHN/JANE DOES 20-50, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER SUSTAINING IN PART AND OVERRULING IN PART REPORT AND RECOMMENDATION, AND ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION; AND ORDER GRANTING DEFENDANT MOTION FOR SUMMARY JUDGMENT DEFENDANT'S OBJECTIONS TO

On March 21, 2006, Plaintiff, proceeding in forma pauperis, filed his first amended complaint ("FAC") seeking relief pursuant to 42 U.S.C. § 1983 for alleged violations of his Constitutional rights while he was housed in the San Diego County jail. Defendant Kolender, the only remaining Defendant in this action, filed a motion for summary judgment (the "MSJ"). Pursuant to 28 U.S.C. § 636, the motion for summary judgment was referred to Magistrate Judge Nita Stormes for report and recommendation. On May 28, 2008, Judge Stormes issued her report and recommendation (the "R&R"), recommending granting in part and denying in part the MSJ. Defendant Kolender filed objections to the R&R, but Plaintiff did not.

The Court previously screened Plaintiff's original complaint and FAC and issued two orders explaining the deficiencies of those complaints on their face and sua sponte dismissing claims against all Defendants except Sheriff Kolender and the San Diego County Board of Supervisors. (Order of January 27, 2006 and Order of May 30, 2006.) Plaintiff was given an opportunity to amend, but abandoned the dismissed claims. The Board was later dismissed. Rather than amending his complaint as permitted to state a claim against the Board, Plaintiff attempted to appeal the order, then abandoned his claims. This left Sheriff Kolender as the sole remaining Defendant, and claims against him for housing him under penal conditions of confinement as the only remaining claims. (See Order of May 30, 2006 at 15:22--26.) Although the FAC is lengthy - 50 pages, including a declaration and Plaintiff's logs showing yard and dayroom time but not including exhibits - the allegations against Defendant Kolender, and thus the remaining claims, are slim.

I. Legal Standards

A district court has jurisdiction to review a Magistrate Judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Id.; see also 28 U.S.C. § 636(b)(1)(C). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."

28 U.S.C. § 636(b)(1)(C). Thus, this Court must review those parts of the report and recommendation to which a party has filed a written objection. Moreover, 28 U.S.C. § 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149--50 (1985). The Ninth Circuit has interpreted the language of 28 U.S.C. § 636(b)(1), and determined that the "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party shows that there is an absence of evidence to support the non-moving party's claims, the burden shifts to the non-moving party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 256 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305--06 (9th Cir. 1982).

To successfully rebut a properly supported motion for summary judgment, the non-moving party "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inference made in the plaintiff[]'s favor, could convince a reasonable jury to find for the plaintiff[]." Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000) (citations omitted).

The Court construes Plaintiff's pleadings liberally. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). The Court is not, however, required to "comb the record to find some reason to deny a motion for summary judgment," even when the plaintiff is proceeding pro se. Tran v. California, 280 Fed. App. 653, 653 (9th Cir. 2008) (quoting Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)) (affirming district court's grant of summary judgment against pro se plaintiff). The Court may exercise its discretion to consider materials in the record not specifically referred to in the pleadings, in appropriate circumstances. Carmen, 237 F.3d at 1031.

In deciding a motion for summary judgment, the Court considers the evidence in the light most favorable to the non-moving party. Porter v. Cal. Dep't of Corr., 383 F.3d 1018, 1024 (9th Cir. 2004). The Court does not make credibility determinations or weigh conflicting evidence; these determinations are for the trier of fact and inappropriate for summary adjudication proceedings.

Anderson, 477 U.S. at 249. The Court need not, however, accept legal conclusions cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

Qualified immunity shields state officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal citations omitted). "The relevant question . . . is the objective (albeit fact specific) question whether a reasonable officer could have believed [his or her actions] to be lawful, in light of clearly established law and the information" the official possessed. Anderson v. Creighton, 483 U.S. 635, 641 (1987). Qualified immunity is "an immunity from suit rather than a mere defense of liability . . . ." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, the Supreme Court has "repeatedly . . . stressed the importance of resolving [qualified] immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991).

The question of official immunity is subject to the same analysis as are factual disputes. Butler v. San Diego Dist. Attorney's Office, 370 F.3d 956, 964 (9th Cir. 2004). Once Defendant has made a properly supported motion for summary judgment based on official immunity, Plaintiff is required to produce evidence in opposition. Id. In the absence of evidence, the Court may not assume the challenged factual allegations are true. Id.

Although this order is primarily directed to ruling on the MSJ, the Court is under an independent obligation to dismiss claims to the extent they cannot support a recovery, as set forth in

28 U.S.C. § 1915(e)(2).

II. Discussion

A. Background

The following factual background is taken from the R&R's report of facts, to which neither party has objected and which the Court therefore adopts. Plaintiff was convicted in 1999 of committing a lewd act upon a child under the age of fourteen and sentenced to eight years in prison. He pleaded guilty to a similar charge for conduct occurring in Rhode Island. He was scheduled to be released from Mule Creek State Prison on February 21, 2005. Plaintiff was, however, transferred to the San Diego County jail beginning January 4, 2005 where he was held during ongoing court proceedings to determine whether he was a sexually violent predator ("SVP"). He was processed at San Diego County Central Jail, but immediately moved to George F. Bailey Detention Facility ("George Bailey") also in San Diego, where he was housed in protective custody and kept away from the general population of inmates from January 4 to January 23, 2005. He was then held at San Diego County Central Jail from January 24, 2005 to May 24, 2005. He was then moved to the medical unit at George Bailey where he was kept from May 25, 2005 until January 10, 2006. On December 13, 2005, he was determined to be an SVP. He was ultimately transferred to Coalinga State Hospital.

Plaintiff alleges he was held in the county jails under Defendant Kolender's supervision in what amounted to punitive conditions. He alleges, among other things, he was strip searched around four times at George Bailey between January 4 and January 24, 2005 and again at the San Diego County Central Jail on January 24, 2005. Defendant has presented evidence showing his policies do not permit female guards to conduct strip searches of male inmates, and every attempt is made to prevent a female guard from having to be present during the strip search of a male inmate. Plaintiff also alleges Defendant failed to protect him from the abuse of other detainees and employees, permitted the use of excessive force and abuse by other detainees while Plaintiff was being transferred by bus, and failed to provide Constitutionally adequate conditions of detention. The allegedly inadequate conditions of confinement included fewer amenities than prisoners enjoyed, and lights left on 24 hours a day. Plaintiff also brings equal protection claims based on the same factual predicates.

Plaintiff has also brought free exercise claims, arguing he was not given adequate opportunity to practice his religion. Plaintiff, who is Catholic, complains no church service or access to clergy was provided. Defendant has presented evidence the jail relies on volunteers to provide religious services, and that Plaintiff was permitted to receive visits from clergy who wished to visit him.

Plaintiff has also brought other claims which the R&R recommends dismissing.

B. Analysis of Objections

The Court has, as required, conducted a de novo review of those portions of the R&R to which Defendant has specifically objected. After review, the Court has determined that most of Defendant's objections should be sustained, resulting in the granting of summary judgment on all remaining claims.

Furthermore, the Court rejections portions of the R&R because the analysis is overly solicitous toward Plaintiff's claims and inconsistent with the summary judgment standard set by the Ninth Circuit.

Although the Court liberally construes the pleadings of pro se litigants and plaintiffs bringing civil rights claims, Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.1988), especially in civil rights cases, Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the Court may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Nor will the Court assume Plaintiff can prove facts he has not alleged, or that Defendant has violated laws in ways that have not been alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

In particular, Plaintiff has neither alleged nor provided evidence to connect Defendant Kolender with many of the violations, as is required to withstand summary judgment. Rather, many allegations appear directed at Defendants who have since been dismissed after Plaintiff abandoned his claims against them. In some cases, it is clear Defendant Kolender was not involved in the alleged violations. Furthermore, Plaintiff has failed to allege or provide evidence for certain other key elements of his claims. Plaintiff's pro se status does not relieve him of the responsibility to obey the same rules as other litigants, King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), including Fed. R. Civ. P. 56 and associated requirements. See Beard v. Banks, 548 U.S. 521, 536 (2006) (granting summary judgment because plaintiff, a prisoner proceeding pro se and bringing civil rights claims, had failed to point to specific facts in the record that could lead a rational trier of fact to find in his favor) (citation omitted).

In addition, the R&R's solicitous approach to Plaintiff's claims conflicts with the Court's two screening orders. To cite one example, Plaintiff was twice specifically advised he could not bring claims on a respondeat superior theory. (See, e.g., Order of January 27, 2006 at 6:16--28; Order of May 30, 2006 at 4:10--16.) Also, the Court also pointed out Plaintiff could not bring a claim for denial of access to courts unless he could show he was precluded from pursuing a non-frivolous direct or collateral attack on either his criminal conviction or sentence or the conditions of his current confinement, which he twice failed to do. (See Order of January 27, 2006 at 9:3--10:4; Order of May 30, 2006 at 5:15--26.) The R&R, however, recommended denying summary judgment as to Plaintiff's claims that he was not permitted to make phone calls to his attorney.

1. Objection: Defendant's Actions Were Constitutional at the Time

Defendant has objected that, at the time they were implemented, his policies were Constitutional under Munoz v. Kolender, 208 F. Supp. 2d 1125 (S.D.Cal. 2002), and it was only when Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), became final that he could have known they were unconstitutional. This forms part of Defendant's argument he is entitled to qualified immunity. He also points out that, while Blanas was issued December 27, 2004, it became final no earlier than March 4, 2005, when the mandate was issued, after which the policies at issue here were changed. In a related argument, Defendant contends he should be afforded a reasonable period (he proposes 90 days) to make appropriate changes after a decision clearly establishing a right.

When presented with a defense of qualified immunity, the Court must determine whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right." Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). As discussed below, the Court holds, with regard to at least some claims, this requirement is met. The Court must therefore also decide whether the violated right was "clearly established." Id. Under Saucier, the Court would have been required to make the ...


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