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Mitchell v. Adams

July 26, 2010

ROBERT MITCHELL, PLAINTIFF,
v.
D.G. ADAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) plaintiff's motion for partial summary judgment, filed on November 24, 2009, to which defendants filed their opposition on December 28, 2009, to which plaintiff filed his reply on January 29, 2010; 2) defendants' cross-motion for summary judgment, filed on December 28, 2009,*fn1 to which plaintiff filed his opposition on January 29, 2010,*fn2 after which defendants filed their reply on March 15, 2010*fn3 ; 3) plaintiff's motion for sanctions for failing to file a timely opposition to plaintiff's November 24, 2009, motion for partial summary judgment, filed on December 15, 2009 (docket # 76).

Plaintiff's Motion for Sanctions

Regarding plaintiff's motion for sanctions for defendants' failure to file a timely opposition to his motion for partial summary judgment, plaintiff is correct that the court had stated in the order, filed on April 16, 2009 (docket # 68), wherein the discovery deadline was extended until July 31, 2009, and the pretrial dispositive motion deadline re-set to November 30, 2009, that there would be no further extension. Nevertheless, by order, filed on December 15, 2009 (docket # 75), preceding the entry in the case docket of plaintiff's motions for sanctions, the court granted defendants an extension of time, until December 29, 2009, to file their opposition to plaintiff's motion for partial summary judgment. Defendants filed their opposition on December 28, 2009, as well as a cross-motion for summary judgment. By order, filed on January 6, 2010, the court permitted defendants to file the cross-motion beyond the dispositive motion deadline, deeming it timely filed as well. Thereafter, the court granted plaintiff's request for an extension of time to file a reply to defendants' opposition to his motion for partial summary judgment and also granted plaintiff additional time to file his opposition to the defendants' cross-motion. See order, filed on February 3, 2010 (docket # 92). As noted in footnote 3, the court subsequently permitted defendants extensions of time to file their reply. As the undersigned had already granted the request for an extension of time for defendants to file their opposition to plaintiff's summary judgment motion, the court must deny plaintiff's motion for sanctions. Summary of Complaint

In accordance with the order, filed on February 4, 2008 (doc. # 29), the following four of the twenty-nine defendants were voluntarily dismissed: Babich, Ingwerson, Lockard and C. Adams. Pursuant to the March 3, 2008, order (docket # 34) adopting the findings and recommendations of Feb. 4, 2008, nine more defendants,*fn4 along with certain claims, were dismissed and the complaint now proceeds on plaintiff's claim for money damages only.

The defendants include Corcoran State Prison (CSP) employees: D. G. Adams, D.D. Ortiz, K. Daviega, J.A. Diaz, T. Galaviz, B. Streeter, P. Chatham, J. Hill, R. Hubach, A. Morrison, J. Diaz, S. Tellerico; and High Desert State Prison (HDSP) employees: D. Vanderville, B. Epperson, J. Owen, D. Hellwig. Plaintiff was incarcerated at High Desert State Prison (HDSP) at the time of filing his complaint, on October 20, 2006.*fn5 He alleges that defendants at both Corcoran State Prison (CSP) and HDSP violated his rights under the First and Fourteenth Amendments.

Defendants Adams, Ortiz, Daviega, J.A. Diaz, Galaviz, Streeter, Chatham, Hill, Hubach, Morrison, Diaz, and Tellerico at CSP, conspired together to transfer him to High Desert State Prison in retaliation for his filing grievances and to avoid responding to or returning his pending appeals and increased his security housing level and confiscated and destroyed his property in violation of his First Amendment rights. The CSP defendants threatened to physically harm him and place him in ad seg if he did not withdraw his grievances, which he did out of fear in violation of his rights under the First Amendment.

Defendants Vanderville, Epperson, Owen and Hellwig at High Desert State Prison (HDSP) all ratified the retaliatory conduct of the CSP defendants by refusing to take corrective measures and by increasing his security housing level, by confiscating and destroying plaintiff's personal and legal property, all at the request of the CSP defendants, in violation of plaintiff's First Amendment rights.

Plaintiff alleges that all of the defendants "maintain segregationist policies," harboring a discriminatory animus against plaintiff and other African American inmates, requiring them to be double celled only with African Americans, and in separate holding cells, a claim of a violation of the Equal Protection Clause of the Fourteenth Amendment. Plaintiff also alleges a state tort claim of negligence, contending that defendants inflicted physical, mental and emotional injuries upon him by their acts and omissions. He claims that he has lost wages, legal and personal property, and suffered "severe pain, humiliation, indignities...." Plaintiff also claims defendants' conduct was willful, wanton, malicious and oppressive. Plaintiff seeks compensatory and punitive damages and a declaratory judgment. See Complaint, pp. 1-55.*fn6

Motions for Summary Judgment

In reviewing plaintiff's motion for partial summary judgment and defendants' cross-motion for summary judgment, as well as the respective oppositions and reply briefs, the court notes at the outset that plaintiff has, since filing his motion for partial summary judgment, sought to voluntarily dismiss defendants Streeter, Chatham and Galaviz with prejudice, pursuant to Fed. R. Civ. P. 41(a)(2), as well as "only" his Fourteenth Amendment equal protection segregated housing claim against defendants Adams, Morrison, Daviega, Hill and Hubach. Opp. to CMSJ, Doc. 87, pp. 2, 7. In their reply, defendants note plaintiff's request for dismissal of defendant Streeter and his Fourteenth Amendment equal protection claims against the immediately preceding defendants. Reply to CMSJ, pp. 2-3. Although, due to an apparent oversight, they do not specifically state that plaintiff also moved for dismissal of defendants Chatham and Galaviz with prejudice as well, defendants do state "the court should dismiss the claims that [plaintiff] concedes lack merit." Id. The undersigned, therefore construes that the defendants and claims for which plaintiff has sought dismissal with prejudice have been stipulated to as well by defendants and finds that the parties have agreed to the voluntary dismissal of these defendants and claims with prejudice under Fed. R. 41(a)(ii), and they will not be further addressed within the pending motion and cross-motion.

As modified immediately above, plaintiff, therefore, brings his motion for partial summary judgment (PMSJ) as to CSP defendant Morrison for violation of plaintiff's First Amendment rights in the form of retaliation, violation of plaintiff's right to petition the government for redress and his right to access the court; as to CSP defendants Ortiz, J.A. Diaz, J. Diaz and Tellerico for violating plaintiff's Fourteenth Amendment right to equal protection by their unconstitutional policy and practice of racial segregation; as to HDSP defendants Vanderville, Owen and Hellwig for violating plaintiff's First Amendment rights by retaliating against him with regard to housing; and as to all HDSP defendants, Vanderville, Epperson, Owen and Hellwig, for violating plaintiff's Fourteenth Amendment right to equal protection by their unconstitutional policy and practice of racial segregation. PMSJ, pp. 2-3.

Also with the modification noted above, in their cross-motion for summary judgment (CMSJ), defendants move for dismissal*fn7 of plaintiff's First Amendment claim against defendant Morrison for destroying plaintiff's legal property because no harm resulted; of plaintiff's Fourteenth Amendment claim against defendants because defendants did not subject plaintiff to segregated housing; of plaintiff's First Amendment retaliation claims against defendants for transferring him to HDSP and maintaining him in their 180-design housing because legitimate correctional goals were thereby advanced. CMSJ, Document 82-2, pp. 10-13. Defendants also argue that they are entitled to qualified immunity, that the court should decline supplemental jurisdiction of plaintiff's state law negligence claim and that the negligence claim should be dismissed on the ground that defendants' conduct was reasonable. Id., at 13-14.

Legal Standards for Summary Judgment

Burdens on summary judgment motion differ depending on who will carry the burden of persuasion at trial. With respect to plaintiff's motion for partial summary judgment, "[a]s the party with the burden of persuasion at trial, the [moving party] must establish "beyond controversy every essential element of its' [ ] claim. [The non-moving party] can defeat summary judgment by demonstrating the evidence, taken as a whole, could lead a rational trier of fact to find in its favor." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).

As to defendants' cross-motion for summary judgment, summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to 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, 106 S.Ct. 2548, 2553 (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. See id. at 322, 106 S.Ct. at 2552. "[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, 106 S.Ct. at 2553.

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, 106 S.Ct. 1348, 1356 (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, 106 S.Ct. at 1356 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, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor 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, 106 S.Ct. at 1356 (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. See Anderson, 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. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. 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. See Richards 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, 106 S.Ct. at 1356 (citation omitted).

On December 13, 2006, and again on May 11, 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, 411-12 (9th Cir. 1988).

There is no easy way to organize this motion which includes allegations involving distinct constitutional claims against many defendants at two different institutions. The best the undersigned can do is to clearly delineate the organization chosen:

1. Plaintiff's motion for partial summary judgment -- retaliation against defendant Morrison and denial of right to court access as to Morrison;

2. Defendant Morrison's cross-motion on (1) above;

3. Fourteenth Amendment equal protection housing claims both as to plaintiff's motion and defendants' cross-motion;

4. Plaintiff's retaliation in transfer motion against HDSP defendants; 5. CSP and HDSP defendants' cross-motion with respect to retaliatory transfer.

Defendant Morrison

Plaintiff makes the following specific allegations against defendant Morrison within his verified complaint. On November 12, 2005, defendant Morrison stopped plaintiff as he carried envelopes with legal material, whereupon plaintiff told Morrison he was headed to the law library to conduct legal research and to mail out his legal documents, showing Morrison the documents. Defendant Morrison snatched up the documents and tore them up, telling plaintiff he could not have them. Plaintiff explained that they had been sent to him by the state attorney general's office and concerned a pending case of his and were not contraband. Defendant Morrison told plaintiff that the documents pertained to a lawsuit against correctional staff and that they were "'FLSA' time sheets" that plaintiff could not have. Plaintiff told defendant Morrison that his having destroyed the documents sent by the attorney general's office before plaintiff had had a chance to address appeal issues violated his First and Fourteenth Amendment rights, to which Morrison replied that he did not care about plaintiff's rights, stating that since plaintiff had arrived, inmates had started filing lawsuits and staff complaints had increased. Complaint, pp. 22-23. When defendant Morrison tore up the documents, plaintiff informed him that he would file a complaint against him to which Morrison responded that he did not care "because don't you know that correctional staff at Corcoran don't find other correctional staff guilty of rule violations. Nothing is going to happen." Id., at 24.

When defendant Hill asked defendant Morrison if plaintiff's version of events had occurred as plaintiff told it, defendant Morrison stated "yes," and also said that he had told plaintiff they were tired of him and his complaint filing. When plaintiff told defendant Hill that in light of Morrison's admission that plaintiff expected Hill to hold Morrison accountable to departmental policy and procedure, defendant Hill "became enraged," approaching plaintiff with a clenched fist and shouting, inter alia, "I don't give a rat's ass about you or your complaints. We run this fucking yard the way we see fit and we don't have to answer to anyone. Now, I'm telling you to drop your complaints, if you know what's good for you." Id., at 24-25.

Defendant Morrison then threatened plaintiff with a "blanket party," saying "if you keep on snitching and filing complaints, we're going to come an[d] pay your ass a visit dressed all in black and snatch your ass out of your cell at 2 or 3 o'clock in the morning and beat your ass! We've done this shit before and we'll do your ass too!" Both defendants laughed and warned plaintiff to drop grievances nos. CSPC-3-06-00115 and CSPC -3-06-00652, and were heard by unidentified inmates and correctional staff. The next day, Feb. 23, 2006, plaintiff filed a complaint against defendants Hill and Morrison for the incident of Feb. 22, 2006, no. CSPC-3- 6-01022. Id., at 25-26.

Plaintiff contends that he is entitled to summary judgment on his claims that this defendant violated his First Amendment rights by retaliating against him for the filing of grievances, and violating his right to petition the government for redress and right to access the court by destruction of certain of plaintiff's legal documents. Plaintiff's Motion for Partial Summary Judgment (PMSJ), pp. 8-13, 16, 26-37.

Defendants posit five objections to plaintiff's evidence in support of his PMSJ: 1) that plaintiff has stated facts in his points and authorities that he has omitted from his separate statement in violation of Local Rule (L.R.) 56-260(a) (now, simply, L.R. 260(a))*fn8 ; 2) that plaintiff has cited his declaration in support of his 36 undisputed material facts without referencing page, line or paragraph numbers, again not in compliance with L.R. 260(a); 3) that the statements plaintiff includes in his declaration purportedly by defendants Adams, Ortiz and Daviega relayed to plaintiff by other defendants are inadmissible hearsay;*fn9 4) that plaintiff mischaracterizes defendants' discovery responses as admissions in support of the following PSUF 8-13; 18-25; 27-36; 5) that plaintiff's Ex. A, Appeal Log n. CSP-03-06-00652, First Level Appeal Response, and particularly the inmate request for interview, verifying that Correctional Officer S.G. Vasquez gave plaintiff's 602-appeal to defendant Morrison on 12/7/06 and gave him until 12/14/05 to issue an informal level response, cited in support of PSUF 1-6, on grounds of hearsay. See defendants' objections to plaintiff's evidence in support of PMSJ, Doc. # 79.

In response, plaintiff maintains that he has enumerated his separate statement of undisputed facts accurately, or at least for an incarcerated pro se litigant, adequately; that defendants are posing objections to divert attention from a lack of evidence they proffer; that statements attributed to certain defendants by other defendants are not inadmissible hearsay but statements made by co-conspirators (Fed. R. Evid. 801(d)(2)(E)). Plaintiff's response to defendants' objections to plaintiff's evidence in support of PMSJ. Plaintiff counters that under Fed. R. Evid. 301 he is not mischaracterizing defendants' discovery responses, but merely simply applying a presumption based on the responses which defendants must produce evidence to rebut. Id. Finally, as to C/O Vasquez alleged statement, plaintiff argues that her statement is not hearsay because it meets the factors set forth under Fed. R. Evid. 807. Id.

As to defendants' objection that plaintiff does not point to any specific portion of his declaration in support of a number of his putative undisputed facts, defendants are correct that plaintiff has simply failed to comply with the requirement under L.R. 260(a) to "cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to establish" and undisputed fact. [Emphasis added]. Plaintiff's effort to rectify this deficiency by placing the specific citations within his response to defendants' statement of disputed and undisputed facts is simply too late to have provided any help to defendants in trying to formulate their response to the motion's initial statement of undisputed facts. However, plaintiff did make an effort in the original statement to explicitly set forth the other documentary evidence he relied on in his statement of undisputed facts. To the extent, nevertheless, that plaintiff includes within his points and authorities allegations that he has not provided evidentiary support for in his separate statement of undisputed facts in support of PMSJ, defendants' objection is well-taken and is sustained, although the court will consider statements not referenced therein that he makes in his declaration(s). Also, objections to evidence that could be made admissible at trial may be considered on summary judgment. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (evidence which could be made admissible at trial may be considered on summary judgment); see also Aholelei v. Hawaii Dept.of Public Safety, 220 Fed. Appx. 670 (9th Cir. 2007).*fn10

Plaintiff in his statement of undisputed facts asserts in PSUF 1 that on November 12, 2005, his legal documents, consisting of 602-staff complaints and FLSA*fn11 time sheets, were confiscated and subsequently destroyed by defendant Morrison. In plaintiff's undisputed fact 2, plaintiff asserts that he submitted a 602 appeal regarding defendant Morrison's actions, and that on December 7, 2005, C/O S. G. Vasquez personally gave plaintiff's appeal to defendant Morrison for an informal level response pursuant to CAL. CODE REGS. tit.xv, § 3084.5, and gave him until December 14, 2005, to issue the response. In support of these facts, plaintiff relies on his own declaration (pages 5-8*fn12 ) in support of his PMSJ and his Ex. A to that declaration, a copy of his 602 appeal, Log No. CSP-06-0652 and the first formal level appeal response, along with a copy of plaintiff's request for interview ("verifying that [] Vasquez gave plaintiff's 602-appeal to to defendant Morrison on December 7, 2005 and gave him until December 14, 2005, to issue an informal level response"), as well as a copy of CAL. CODE REGS. tit.xv, § 3084.5(a)(1)(2). The Nov. 12, 2005, appeal states that plaintiff had shown the confidential legal documents defendant Morrison had confiscated had been sent to plaintiff by Deputy Attorney General Terrence Sheehy of the Attorney General's Office and that plaintiff had shown defendant Morrison verification that the documents had been provided to him and that he was permitted to have them. Although it appears that plaintiff dated the original appeal 11/12/05, he identifies in his January 23, 2006, request for interview regarding the status of the appeal as having been filed on 11/22/05. In any event in the portion of the request form under "disposition," and signed "C/O Vasquez," it is stated: "[o]n 12-07-05 a 602 regarding staff complaint was routed [sic] Sgt. Morrison it was assigned date of 12-14-05." See docket # 72, pp. 1-2; docket # 73, plaintiff's Dec. pp. 5-8; Ex. A, pp. 23-25; Ex. B, pp. 28-29.

In addition to positing their second and fifth objections noted above, defendants cite in their response to plaintiff's undisputed facts 1 and 2, ¶¶ 3-5 of defendant Morrison's declaration in Ex. A of their evidence in opposition to the PMSJ (and in support of their own MSJ). Docket # 80, defendants' response to PUF, p. 2. In his declaration, defendant Morrison avers that he was summoned by a yard officer to plaintiff's location on or about Nov. 12, 2005, who had conducted a body search of plaintiff as is customary when inmates are being released to the yard, and found the FLSA timesheet documentation, dated December 21, year unknown, with a staff name, position, pay number, and signatures on it. See docket # 81-2, Ex. A, Defendant Morrison's Dec. in support of defendants' opp. to PMSJ, ¶ 3. Defendant Morrison states that he told plaintiff he was going to keep the FLSA documentation pending an investigation as to whether plaintiff could have it in his possession. Id., at ¶ 4. He declares that he was told by the litigation department that plaintiff could only have FLSA timesheet copies pertaining to his case number. Id. Defendant Morrison declares that the date of the FLSA documentation did not correspond to plaintiff's court case and that he so notified plaintiff that day and also informed him that he was going to destroy the FLSA documents. Id. Defendant Morrison denies having told plaintiff that he could not have 602 appeals or FLSA time sheets or other documents pertaining to a lawsuit against correctional staff and denies having torn up documents in plaintiff's presence and denies having told plaintiff that since plaintiff's arrival, filings of lawsuits and complaints against staff had increased. Id., at ¶ 5.

Only one of plaintiff's undisputed facts, relevant to his claims against defendant Morrison (PUF) is, in fact, expressly undisputed by defendants: PSUF*fn13 4: on January 27, 2006, approximately 4 days after [plaintiff's] inquiring about the status of the 602-appeal, defendant Morrison issued an informal level response: "(a) that he received plaintiff's 602-appeal on January 27, 2006 and (b) denied plaintiff's 602-appeal pursuant to CCR tit. 15 sec. 3084.6(c) appeal time limits." PSUF, p. 4; DSD&UF,*fn14 p. 3.

In plaintiff's undisputed fact 5, he states that on January 27, 2006, after he had received defendant Morrison's informal level response and realizing that defendant Morrison was not being truthful regarding the date he actually received plaintiff's 602-appeal from C/O Vasquez, plaintiff contacted Vasquez, informing her of defendant Morrison's allegations. C/O Vasquez filled out the January 23, 2006, request for interview stating that the 602 appeal had been given to Sgt. Morrison on 12/7/05, with an assigned due date of 12/14/05. C/O Vasquez then told plaintiff to fill out the formal level of the 602 appeal, attaching the inmate request for interview, explaining that Morrison was not being truthful. Plaintiff was also told by C/O Vasquez that she would contact the inmate appeals coordinator and explain about Morrison not being truthful. On January 27, 2006, plaintiff filled out section D of the formal level, stating: "Sgt. Morrison is not telling the truth, C/O S.G. Vasquez 3B Education Officer personally gave Sgt. Morrison my 602 on 12/7/05 and gave him a due [date] of 12/14/05. See attachment page #2. This verifies that Sgt. Morrison got my 602 on 12/7/05 not 1/27/06. Sgt. Morrison withheld my 602 pass [sic] its due date to keep from answering it. I want my legal papers back." In support of PUF 5, plaintiff again relies on his declaration (pages 5-8) in support of his PMSJ and his Ex. A to that declaration, a copy of his 602 appeal, Log No. CSP-06-0652 and the first formal level appeal response, along with a copy of plaintiff's request for interview ("verifying that [] Vasquez gave plaintiff's 602-appeal to to defendant Morrison on December 7, 2005 and gave him until December 14, 2005, to issue an informal level response").

Defendant Morrison disputes this fact with his declaration at ¶ 6, and objects again with reference to defendants' objections 2 and 5, pointing out, in addition, that plaintiff's declaration does not mention plaintiff's interactions and conversations with regard to the grievance. Docket # 80, defendants' response to PUF, p. 4. In his declaration, defendant Morrison swears that he did not hold plaintiff's grievance relating to the FLSA documentation so that plaintiff's time limits for filing would be exceeded and further declares that he was not aware of plaintiff's grievance concerning that documentation until, as he maintains, he received it on January 27, 2006. Docket # 81-2, Morrison's Dec. in support of defendants' opp. to PMSJ, ¶ 6.

In PUF 6, plaintiff states that after the inmate appeals coordinator spoke with C/O S.G. Vasquez and confirmed that defendant Morrison was not being truthful, plaintiff's 602-appeal was given a log no. CSP-03-06-06452 and was immediately processed. On February 22, 2006 approximately 100 days after plaintiff had submitted his 602-appeal Log No. C.S.P.-03-06-0652, he was interviewed by defendant Correctional Lieutenant Hill. After the hearing, plaintiff's 602 appeal Log No. C.S.P.-03-06-0652, was partially granted and defendant Morrison was found to have confiscated and destroyed plaintiff's legal documents in violation of C.S.P.-Operational Procedure No. 202, Paragraph VII Destruction of Evidence and CDC-Operations Manual Section 52051.15, which requires that all information, property, and evidence confiscated by correctional staff shall be retained for "at least 6 months," before being prepared for destruction or returned. Plaintiff relies once more on his declaration in support of his PMSJ and his Ex. A to that declaration, a copy of his 602 appeal, Log No. CSP-06-0652 and the first formal level appeal response, along with a copy of plaintiff's request for interview ("verifying that [] Vasquez gave plaintiff's 602-appeal to to defendant Morrison on December 7, 2005 and gave him until December 14, 2005, to issue an informal level response"); he also cites a copy of C.S.P. Operational Procedure No. 202 Control of Evidence; and copy of CDC Operational Manual Section 52051.15 Handling of Evidence.

In disputing PUF 6, defendants (Docket # 80,*fn15 p. 5 ) cite Ex. A, Docket # 81-2, defendant Morrison's Dec. in support of defendants' Opp. to PMSJ, ¶¶ 3-6, and their Objections 2 and 5. They further maintain that plaintiff's declaration does not mention the appeals coordinator's alleged confirmation of Morrison's untruthfulness and that plaintiff misstates defendant Hill's appeal response, inasmuch defendant Hill's grievance response does not state that defendant Morrison confiscated and destroyed plaintiff's legal documents in violation of C.S.P.-Operational Procedure No. 202, Paragraph VII Destruction of Evidence and CDC-Operations Manual Section 52051.15, which requires that all information, property, and evidence confiscated by correctional staff shall be retained for "at least 6 months," before being prepared for destruction or returned. Defendants aver that plaintiff lacks foundation to testify about Morrison's alleged violation of C.S.P. Operational Procedure No. 202 Control of Evidence; and CDC Operational Manual Section 52051.15 Handling of Evidence. Docket # 80, p. 5.

Defendant Hill's first formal level appeal response on the partially granted February 22, 2006 CSP-3-06-652 grievance states in relevant part:

Findings:

On February 22, 2006, Correctional Sergeant A. Morrison was interviewed regarding your allegations. Sergeant Morrison stated the papers confiscated that consisted of Fair Labor Standard [sic] Act documents, (staff sign in sheets) were dated November 24, 2004. The dates you provided as received from the Attorney's General [sic] Office, did not include the date of the documentation confiscated. I also asked if you were given a receipt of the items ...


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