The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Consuelo B. Marshall, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Plaintiff, a state prisoner proceeding pro se, filed this civil rights action for damages on February 21, 2006, alleging that prison officials at the Chuckawalla Valley State Prison ("CVSP") violated Plaintiff's constitutional rights. The Third Amended Complaint, the operative pleading, names as Defendants: Correctional Officers L. Brown, B. Terry and J. LaCuesta, Sergeant K. Gibbons, Captain B. Mathews,*fn1 and Deputy Warden J. Cortez, all sued in their individual capacities only. On August 1, 2008, Plaintiff filed two motions for summary judgment.
On November 10, 2008, Defendants filed a "Motion for Summary Judgment, or Alternatively, for Summary Adjudication" ("Defendants' Motion"). Defendants' Motion asserts, inter alia, that Plaintiff failed to exhaust available administrative remedies with respect to his claims against Defendants Gibbons, LaCuesta, Mathews, Terry and Cortez, as required by the Prison Litigation Reform Act of 1995 (Pub. L. No. 104-134, 110 Stat. 1321), 42 U.S.C. § 1997e(a) ("PLRA").*fn2
Specifically, Defendants alleged that Plaintiff failed to pursue his administrative appeals to the third, i.e., the highest, level of review.
On November 12, 2008, the Court issued a Minute Order advising Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
On December 1, 2008, Plaintiff filed "Plaintiff['s] Motion for Opposition to Defentdant [sic] Brown Gibbon Lacuasta [sic]" ("Opposition"). In his Opposition, Plaintiff submitted copies of two appeals which bear a stamp appearing to indicate receipt by the Inmate Appeals Branch of the California Department of Corrections and Rehabilitation (the third and highest level of review). On January 30, 2009, the Magistrate Judge issued a Minute Order ordering Defendants to file a Reply addressing these matters.
On February 6, 2009, the Court issued a Memorandum and Order denying both of Plaintiff's motions for summary judgment.
On February 20, 2009, Defendants filed: (1) "Defendants' Reply to Plaintiff's Opposition to Motion for Summary Judgment, etc." ("Reply"); and (2) "Defendants' Evidentiary Objections to Portions of Plaintiff's Declaration and Exhibits in Opposition to Defendants' Motion for Summary Judgment, etc." On February 23, 2009, the Magistrate Judge issued a Minute Order observing that the Reply and the supporting "Declaration of N. Grannis, etc." filed therewith contained contentions not set forth in Defendants' Motion for Summary Judgment. The Minute Order granted Plaintiff leave to file a Response to the Reply which could include any evidence Plaintiff wished to submit in opposition to the evidence upon which Defendants relied in the Reply.
On March 2, 2009, Plaintiff filed "Plaintiff[']s Objections to Defendants' Opposition [to] Motion for Summary Judgment" ("Plaintiff's Objections").
SUMMARY OF ALLEGATIONS OF THIRD AMENDED COMPLAINT
In the Third Amended Complaint, Plaintiff alleges the following:
On June 5, 2005, Plaintiff allegedly was confined in administrative segregation "for a violation of 314", assertedly in retaliation for filing staff complaints (Third Amended Complaint ["TAC"], p. 11).*fn3 On July 18, 2005, Defendant Gibbons allegedly assaulted Plaintiff at the instigation of Defendant Brown, and Defendant LaCuesta assertedly failed to protect Plaintiff from the assault (TAC, pp. 7, 11). On July 28, 2005, the Warden allegedly released Plaintiff back to the general prison population at CVSP (TAC, p. 11).
On August 18, 2005, Plaintiff allegedly was transferred to Ironwood State Prison and confined in the "hole," assertedly in retaliation for filing a staff complaint (id.). Defendant Terry thereafter allegedly produced an assertedly unlawful and retaliatory lock-up order to confine Plaintiff in administrative segregation (id.).
On November 22, 2005, Defendant Mathews allegedly confined Plaintiff in administrative segregation, and Defendant Terry allegedly told Plaintiff that Plaintiff could receive an indefinite SHU (Security Housing Unit) term depending on the outcome of Plaintiff's court case (TAC, p. 12). On December 16, 2005, Defendant Cortez allegedly released Plaintiff from administrative segregation (id.). However, on December 22, 2005, Defendants Terry and Mathews allegedly caused Plaintiff to be returned to administrative segregation in the absence of a lock-up order (id.). Plaintiff allegedly was not thereafter released from administrative segregation until June 2, 2006 (TAC, p. 10).
Among the exhibits attached to the Third Amended Complaint is an inmate grievance, bearing a submission date of December 14, 2004, in which Plaintiff alleged that various female staff members, including Defendant Brown, had conspired to harass Plaintiff and accuse him falsely of sexual misconduct (TAC, Exhibits, pp. 18-19). Plaintiff also attaches an "Administrative Segregation Unit Placement Notice," dated August 18, 2005, indicating Plaintiff was placed in administrative segregation "to preserve the integrity of an investigation involving [Plaintiff's] allegations of misconduct by CVSP's Administrative Segregation Staff following your Administrative Segregation placement of 06/06/05" (TAC, Exhibits, p. 21). The Notice indicated Plaintiff would be retained in the Administrative Segregation Unit at Ironwood State Prison pending the conclusion of the investigation and review by CVSP's Institutional Classification Committee (id.). Defendant Mathews signed the document as Administrative Reviewer (id.). Another exhibit indicates that, on August 25, 2005, Defendant Cortez chaired a classification hearing reviewing the August 18, 2005 segregation placement (TAC, Exhibits, p. 22). The classification committee decided to retain Plaintiff in administrative segregation pending the investigation (id.).
A Classification Committee document dated December 16, 2005 indicates that, on August 23, 2005, the Riverside County District Attorney's Office accepted the case against Plaintiff for prosecution (TAC, p. 24). The Classification Committee, chaired by Defendant Cortez, decided to release Plaintiff from administrative segregation (id.).
Another document shows that, on December 22, 2005, a Classification Committee, whose members included Chairperson Cortez and Defendants Mathews and Terry, amended the December 16, 2005 order, and directed that Plaintiff be retained in administrative segregation (TAC, p. 25). The Committee noted that Plaintiff's Central File revealed that Plaintiff had three prior Rules Violation Reports for indecent exposure, sexual misconduct and masturbation, that the Riverside County District Attorney's Office had accepted the indecent exposure case for prosecution, and that a jury trial in that case was set for January 11, 2006 (id.). The Committee indicated that Plaintiff's sexual misconduct violations met the criteria for referral to the Departmental Review Board ("DRB") for consideration of an indeterminate SHU term (id.). Therefore, the Committee amended its action of December 16, 2005, and ordered Plaintiff confined in administrative segregation pending a final decision of the DRB referral (id.).
In the Third Amended Complaint, Plaintiff alleges four claims for relief:
Claim One (Retaliation against Defendant Brown; Excessive Force against Defendants Gibbons and LaCuesta)
In Claim One, Plaintiff alleges that, on July 18, 2005, Defendant Brown assertedly incited Defendant Gibbons to assault Plaintiff (TAC, p. 7). Defendant LaCuesta allegedly watched the assault without attempting to protect Plaintiff (TAC, p. 7). Defendant Brown allegedly acted in retaliation for two staff complaints Plaintiff assertedly had filed against Brown (id.).
Claim Two (Retaliation against Defendant Cortez)
In Claim Two, Plaintiff alleges that Defendant Cortez unlawfully caused Plaintiff to be confined in administrative segregation for ten months, assertedly in retaliation for Plaintiff's filing of the grievance concerning the alleged July 18, 2005 assault (TAC, p. 8). Plaintiff alleges that, on August 18, 2005, Plaintiff was removed from the general prison population for complaining to the Warden concerning the alleged assault (id.). Defendant Cortez allegedly requested that Plaintiff receive a 90-day "hole" placement (id.). Plaintiff allegedly was ordered to be transferred to the Ironwood State Prison "hole," assertedly pending an investigation of the alleged assault (id.). From August 18, 2005 to December 22, 2005, Plaintiff allegedly was never interviewed or given any paperwork concerning any investigation (id.).
On December 22, 2005, Defendant Cortez allegedly confined
Plaintiff in administrative segregation, assertedly pending the outcome of a court proceeding "that was at closure on an institutional level 7-28-05" (id.) (original emphasis). Cortez allegedly confined Plaintiff in administrative segregation pending a "DRB review for SHU placement Plaintiff was never qualif[ied] for" (id.).
Claim Three (Retaliation against Defendant Terry)
In Claim Three, Plaintiff alleges that, on November 22, 2005, Defendant Terry issued an allegedly illegal lock-up order in asserted retaliation for Plaintiff's staff complaints (TAC, p. 9). The order allegedly confined Plaintiff in administrative segregation pending a "DRB" referral for a possible indeterminate "SHU" placement for which Plaintiff allegedly did not qualify, and pending a court proceeding which assertedly was "closed on an institution level" (id.).*fn4
Claim Four (Retaliation against Defendant Mathews)
In Claim Four, Plaintiff alleges that, on November 22, 2005, Defendant Mathews unlawfully confined Plaintiff in administrative segregation, assertedly in retaliation for Plaintiff's assault complaint (TAC, p. 10). Defendant Mathews, along with Defendant Terry, allegedly presented their assertedly illegal lock-up order to Defendant Cortez at a classification hearing on December 16, 2005 (id.). Cortez allegedly rejected the lock-up order (id.). Nevertheless, Defendants Mathews and Terry then allegedly confined Plaintiff in administrative segregation for 90 days (id.).
1. Plaintiff allegedly failed to exhaust his administrative remedies with respect to his claims against Defendants Gibbons, LaCuesta, Cortez, Mathews and Terry;
2. Plaintiff's retaliation claims allegedly fail as a matter of law;
3. There allegedly is no evidence that Defendant Gibbons used excessive force on Plaintiff;
4. There allegedly is no evidence that Defendant LaCuesta was deliberately indifferent to Plaintiff's safety;
5. The Eleventh Amendment allegedly immunizes Defendants Mathews, Cortez and Terry from suit to the extent Plaintiff sues these ...