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Tholmer v. Pliler

July 14, 2010

LIONELL THOLMER, PLAINTIFF,
v.
CHERYL K. PLILER, ET AL., DEFENDANTS



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Defendants' motion for summary judgment (Doc. 127). Plaintiff filed an opposition*fn1 to the motion (Doc. 141), and Defendants filed a reply (Doc. 146, 147). Plaintiff also filed a motion for summary judgment (Doc. 154, 155), to which Defendants filed an opposition (Doc. 156).

I. BACKGROUND

A. Plaintiff's Allegations

This action proceeds on Plaintiff's third amended complaint (Doc. 91). Plaintiff claims that his First and Fourteenth Amendment rights have been violated by the Defendants' actions in retaining him in administrative segregation. Plaintiff claims the Defendants refused to allow him to call witnesses and present evidence at his retention hearing, and acted in retaliation for litigating against official corruption.

B. Undisputed Facts

In April 2003, Plaintiff was incarcerated in California State Prison Sacramento (SAC). He is a level four prisoner who has been housed on the Sensitive Needs Yard (SNY) since August 2000. On April 16, 2003, inmate Lyons threatened Plaintiff because Lyons believed Plaintiff had told the control officer that Lyons had failed to clean the showers. Plaintiff overheard Lyons tell inmate Wagner that Plaintiff had "committed suicide" by snitching on him. On April 17, 2003, Plaintiff reported to Sergeant Williams that Lyons had made threats against Plaintiff's life and to assault Officer Grady, but Plaintiff was not sure about how serious Lyons's threats were. Plaintiff was interviewed that day by Officer Hodgkins of the Investigative Services Unit (ISU) about the threats he reported Lyons had made against Officer Grady and himself.

That same day, April 17, 2003, Plaintiff was placed in administrative segregation (Ad/Seg) by Lieutenant Banks. The reason provided on the CDC 114-D form was due to safety of self or others and institutional security.*fn2 Plaintiff acknowledges receiving a copy of this form. On April 18, 2003, Captain Mayfield met with Plaintiff in Ad/Seg and reviewed the order, which Plaintiff refused to sign because he disagreed with the allegations made and the actions taken.

On April 23, 2003, Plaintiff appeared before the Institution Classification Committee (ICC) for a hearing chaired by defendant Rosario. Defendants Walker, Martin and Mayfield, as a recorder, were present at the meeting. While in Ad/Seg, Plaintiff was single celled and on "Walk Alone Yard" status.

Plaintiff reappeared before the ICC on May 14, 2003, for a hearing chaired by defendant Rosario to consider his retention in Ad/Seg. Sergeant Tennison, Dr. Martin, and defendants Mayfield and Mini, as a recorder, were present at the meeting. On May 15, 2003, Officer Lynch interviewed Plaintiff about his enemy concerns as documented on his CDC 812 enemy list. Plaintiff affirmed that he had at least 31 enemies located state wide. On June 18, 2003, Plaintiff reappeared before the ICC for a hearing chaired by Officer Stiles. Sergeant Tennison, Dr. Martin, and defendant Mini, as a recorder, were present at the meeting. Plaintiff declined to appear at the hearing due to a toothache. The ICC recognized that Plaintiff could not be housed in any of the States' SNY safely, and therefore recommended indeterminate SHU placement.*fn3 The ICC also referred Plaintiff's case to the Departmental Review Board (DRB) to determine his housing alternative and enemy evaluation.

On June 1, 2003, Plaintiff was interviewed by defendant Wilson to discuss Plaintiff's enemy concerns. On July 14, 2003, defendant Warden Pliler's staff issued a memorandum to refer Plaintiff's case to the DRB for alternate housing consideration. Defendant Pliler's staff considered possible housing options for Plaintiff in a memo, and recommended that Plaintiff be transferred to Pleasant Valley State Prison, level III SNY yard, with an override and indeterminate SHU term.

On August 19, 2003, Plaintiff reappeared before the ICC for a hearing chaired by defendant Stratton. Sergeant Tennison, Dr. Martin, Officer Stiles, and defendants Vance and Mini, as a recorder, were present at the meeting.

On September 9, 2003, Plaintiff was transferred to Salinas Valley State Prison, Facility A.

C. Plaintiff's Dispute of Facts

Plaintiff opposes several of Defendants' "undisputed facts" by stating he disputes them. Plaintiff does not, however, provide any admissible evidence to support his position that the facts alleged are disputable. For example, Defendants provide several reports Petitioner disputes, but he does not provide any evidence in support of his position such as conflicting reports or declaration from the purported authors of the reports confirming that they were in fact modified. As set forth below, unsupported denials are insufficient to bring a fact into dispute. However, the disputed facts are ...


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