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Cohea v. Salter


September 25, 2009



Plaintiff is a prisoner proceeding pro se with an action under 42 U.S.C. § 1983. Plaintiff alleges that defendants D. Turner and L. Sims, correctional officers at California State Prison-Sacramento (CSP-S), conspired to file a false rule violation report (RVR) against plaintiff in retaliation for his exercise of his First Amendment right to file a civil rights complaint. Defendants Turner and Sims have moved for summary judgment.

I. Factual Background

On July 11, 2003, plaintiff filed a second amended complaint in Cohea v. Pliler, et al., Civil Action No. 2:02-cv-2799 FCD EFB (E.D.Cal.), alleging that defendant Sims had conspired with another correctional officer to charge plaintiff with a false disciplinary report for indecent exposure, in retaliation for plaintiff's filing grievances concerning access to the prison law library. Defendants' Undisputed Fact (DUF) 5. Sims waived service of that complaint in October 2003. Id.

In this lawsuit, plaintiff alleges that the complaint in Cohea v. Pliler prompted Sims to continue his retaliatory actions. Plaintiff alleges that on April 24, 2004, some six months after Sims waived service in that action, Sims stated to plaintiff, "I received your lawsuit, think you're a big man, don't you? ... I'll see how big of a man you are by the end of the day today." Compl. at 9. Plaintiff avers that "about ten minutes later" he saw Sims talking to defendant Turner "but defendants Sims and Turner didn't see plaintiff watching them talking." Id. Plaintiff does not say he could overhear their conversation.

Five days later, on April 29, Turner was on duty as a floor officer on plaintiff's cell block, passing out beverages to inmates. Id. at 10. According to the RVR Turner later filed, she approached plaintiff's cell and saw him stand and expose his erect penis through his boxer shorts, then approach the cell and ask her for a beverage. Decl. Of M. Atkins [in Supp. Mot. For Summ. J. (MSJ)] (Atkins Decl.), Attach. 1 at 9. Turner reported that she told plaintiff to cover himself and that his behavior was unacceptable. Id. She further reported that she returned to plaintiff's cell twenty minutes later and observed plaintiff lying on his bunk with his boxers pulled down around his thighs. Id. According to Turner's disciplinary report, plaintiff held his erect penis in his right hand and "made direct eye contact with me and made no attempt to cover his exposed genitals." Id.

Turner filed a single RVR for both incidents, and plaintiff was charged with indecent exposure, in violation of prison rules. A disciplinary hearing was held, at which plaintiff denied all material allegations of the RVR. Id. at 9-10. Plaintiff had the opportunity to question Turner about the incident, and she repeated her allegations concerning his misconduct. Id. at 10. Sims was not present at the hearing, nor do any prison documents on record show that he had any involvement in the filing of the charge. Plaintiff was found guilty at the hearing and assessed 150 days of lost good time credit for committing a Division B offense. Id. at 11. The offense was later amended to Division D and the penalty reduced to a loss of 90 days of good time credit.*fn1 Id.

In the instant suit, plaintiff maintains that the allegations of indecent exposure were entirely fabricated. He brings a single claim against Sims and Turner, alleging that they conspired to file a false RVR against him in retaliation for the civil complaint that plaintiff brought against Sims in 2003. Plaintiff seeks damages and injunctive relief. Compl. at 20-22. Defendants have moved for summary judgment.

II. Standard of Review for Summary Judgment

Summary judgment is appropriate when the movant demonstrates that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Seeid. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The opposing party must also demonstrate that the dispute is genuine, i.e., that the evidence is such that a reasonable jury could return a verdict for the nonmoving party, seeWool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. SeeAnderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. SeeMatsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. SeeRichards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

On May 7, 2007, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

III. Heck and Edwards Analysis

Defendants argue that this action is barred by the rule articulated in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court ruled that a § 1983 action that would necessarily call into question the lawfulness of a plaintiff's conviction is not cognizable unless the plaintiff can show his conviction has been reversed. Id. at 486-87. In Edwards v. Balisok, 520 U.S. 641, 643 (1997), the Court ruled that Heck applied to actions "challenging the validity of the procedures used to deprive an inmate of good-time credits. . . . " A challenge to the purported use of doctored or altered information that leads to the loss of credits falls within the rule of Heck-Edwards. Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997).

Defendants previously argued that this action is barred by Heck and Edwards when they moved for dismissal under Rule 12(b)(6). See Defs' Mot. to Dismiss (Docket no. 15) at 4-5. In addressing this argument, the court initially found this action could proceed, stating that "Heck does not bar a claim that disciplinary proceedings were undertaken in retaliation for an exercise of First Amendment rights." See Order & Findings and Recommendations (Docket no. 20) at 6. By pressing the argument again in their motion for summary judgment, defendants effectively ask the court to revisit an issue that is now law of the case, though they have never formally moved for reconsideration.*fn2

"The law of the case doctrine provides that 'a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.'" United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir.1998) (citation omitted). "While courts are generally urged to adhere to this doctrine, it is 'not an inexorable command.' That is, the doctrine 'is discretionary, not mandatory' and is in no way 'a limit on [a court's] power.'" City of Los Angeles, Harbor Division v. Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001) (citations omitted). "'[A]s long as a district court has jurisdiction over the case, then it has the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.'" Id. at 889 (citation omitted). A court has discretion to depart from the law of the case if "(1) the first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3) the evidence on remand is substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result." Cuddy, 147 F.3d at 1114 (quoting United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997)).

The court, exercising its discretion to reconsider the issue, finds an error in its initial analysis of the applicability of Heck and Edwards to this case. In ruling on the motion to dismiss, the court relied on Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995), in which the Fifth Circuit stated that "favorable termination is not a requisite of a retaliatory interference claim" brought under § 1983. Woods, 60 F.3d at 1164. However, Woods drew a distinction between a claim where "the focus of [the] action is the underlying merit of the underlying proceeding" and the retaliation claim that was before the Fifth Circuit, which "focuse[d] on the interference, asking only whether there has been an obstruction of the exercise of a constitutional right." Id. at 1165. Here, plaintiff's claim belongs to the former class of cases. The claim against Turner and Sims hinges on whether the RVR they allegedly conspired to file was false. Plaintiff from the beginning protested his innocence in answering Turner's report of indecent exposure, and he pursued and exhausted his own prison grievance claiming that Turner had fabricated the two incidents for which he was disciplined with a loss of good time credit. He has never claimed that defendants retaliated against him by filing a disciplinary report for something he actually did; rather, he has always claimed that they retaliated by filing a disciplinary report for something that never happened. The only way to prevail on such a claim would be to show that his version of events was true and the RVR was false. Such a showing "would, if established, necessarily imply the invalidity of the deprivation of his good-time credits." Edwards, 520 U.S. at 646.*fn3

Therefore the court, exercising its discretion to reconsider its previous determination regarding the applicability of Heck and Edwards, concludes that plaintiff's § 1983 claim against defendants Turner and Sims is barred under those cases until the plaintiff is able to show that the underlying disciplinary charge, with the resulting loss of good time credit, has been invalidated through available avenues of relief such as a petition for writ of habeas corpus. See Muhammad v. Close, 540 U.S. 749, 751 (2004). The claims against Turner and Sims should be dismissed without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (claims barred by Heck should be dismissed without prejudice).

Finally, defendant Salter has neither joined the motion for summary judgment, nor independently moved for dismissal of the claim alleged against her. Therefore the court should set a date for trial on that claim.


1. The motion for summary judgment (docket no. 44) be granted;

2. The claim against defendants Turner and Sims be dismissed without prejudice; and

3. The court set a date for trial on the claim alleged against defendant Salter. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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