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Morris v. Hickison

July 29, 2010

ROBERT MORRIS, PLAINTIFF,
v.
D. HICKISON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner proceeding without counsel with a civil rights action pursuant to 42 U.S.C. § 1983. On October 5, 2009, plaintiff moved for summary judgment against the three remaining defendants in this action: Hickison, Fry, and Herrera. (Dkt. No. 75.) On October 9, 2009, defendants Fry and Herrera filed a motion for summary judgment. (Dkt. No 93.) After carefully reviewing the record, the court recommends that plaintiff's motion be denied and defendants' motion be granted.

II. Allegations

This action is proceeding on the original complaint filed December 29, 2006, as to defendants Hickison, Fry and Herrera, on plaintiff's retaliation claims against these three defendants, and on plaintiff's Eighth Amendment claim against defendant Hickison.*fn1

Plaintiff's complaint contains the following allegations: Plaintiff alleges that on May 18 or 19, 2005, defendant Hickison made sexually inappropriate comments to plaintiff at his prison job. Plaintiff also alleges that defendant rubbed and touched his back. (Compl. at 5: 4-5; 15.) On May 24, 2005, defendant Hickison started yelling at inmate workers to get the carts out and take them to the building. Plaintiff told defendant Hickison's supervisor that this task could not be done. Defendant Hickison allegedly told plaintiff that she would write him a chrono and give him an "A" day. She did not say that she was going to file a rules violation report against him.

On May 24, 2005, defendant Hickison was informed that plaintiff was going to file a staff complaint against her based on the sexual harassment. On May 25, 2005, defendant Hickison allegedly retaliated against plaintiff for his threat to file the staff complaint by dismissing him from his job and writing a false rules violation report. Plaintiff was later found not guilty of the rules violation report.

Plaintiff alleges that on June 20, 2005, defendants Fry and Herrera allegedly retaliated against plaintiff for pursuing his staff complaint against defendant Hickison by putting him in administrative segregation. On August 12, 2005, defendant Fry allegedly again retaliated against plaintiff by placing a negative chrono in his C-file. Plaintiff was later transferred to a different prison.

III. Defendants' Motion for Summary Judgment

Legal Standard for Summary Judgment Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if... there is 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 (1986) (quotations omitted). "[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. (citing Fed. R. Civ. P. 56(c). 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. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. 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.

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 exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a 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, see Anderson 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), 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), impliedly overruled in part on other grounds by Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1577-78 (9th Cir. 1990).

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 630. 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 a 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. 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 586 (citation omitted).

In this case, on April 15, 2008, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 13); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

Undisputed Facts

The following undisputed facts ("UDF") are either not disputed by plaintiff, or following the court's review of the evidence submitted, have been deemed undisputed:

1. Defendant Herrera ("Herrera") held the position of Correctional Lieutenant at CSP-Solano ("CSP-SOL") from February 2004 to June 2008. (Herrera Decl. ¶ 1; Dkt. No. 97-1 at 2.)

2. Herrera's work responsibilities included, but were not limited to, supervising inmates and custodial staff, and maintaining the safety and security of inmates, staff, and the institution. He was also responsible for completing California Department of Corrections and Rehabilitation ("CDCR") paperwork, known as a CDC 114-D, Administrative Segregation Unit Placement Notice, when an inmate was placed in administrative segregation ("ad seg"). (Herrera Decl. ¶ 2; Dkt. No. 97-1 at 2.)

3. Herrera was and is familiar with California Code of Regulations, Title 15, § 3335, which provides the guidelines for placing an inmate in ad seg. (Herrera Decl. ¶ 3.)

4. When an inmate's presence in an institution's general inmate population presents an immediate threat to the safety of the inmate or others, endangers institution security, or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity, the inmate shall be immediately removed from general population and placed in ad seg. Cal. Code Regs., tit. 15, § 3335(a). (Herrera Decl. ¶ 4.)

5. Herrera did not promulgate § 3335. (Herrera Decl. ¶ 5; Dkt. No. 97-1 at 2.)

6. On June 20, 2005, Herrera was advised for the first time that plaintiff had made allegations of staff misconduct. (Herrera Decl. ¶ 7.)

7. Herrera then followed § 3335(a), and completed a form CDC 114-D (Administrative Segregation Unit Placement Notice) for plaintiff. (Herrera Decl. ¶ 9, Ex. A; Dkt. No. 97-1 at 2.)

8. The June 20, 2005 CDC 114-D explained that plaintiff was being re-housed in ad seg on June 20, 2005, in order to protect the integrity of an investigation into plaintiff's allegations. (Herrera Decl. ¶ 10; Dkt. No. 97-1 at 2.)

9. Inmate Lancaster, who testified on plaintiff's behalf at the June 20, 2005 CDC 115*fn2 hearing, was also placed in ad seg. (Dkt. No. 1 at 44.)

10. Plaintiff was deemed a threat to the safety and security of CSP-SOL, and he was to remain in ad seg pending an administrative review as to plaintiff's appropriate program and housing needs. (Herrera Decl. ¶ 11.)

11. In addition, under California Code of Regulations, Title 15, § 3272, plaintiff's custody level was increased to "Maximum," in order to facilitate the move. (Herrera Decl. ¶ 12; Dkt. No. 97-1 at 2.)

12. Defendant Herrera did not and does not know Defendant Hickison. (Herrera Decl. ¶ 15; Dkt. No. 97-1 at 3.)

13. Defendant Herrera has no knowledge about plaintiff's allegations against Defendant Hickison, other than what has been claimed in the present lawsuit. (Herrera Decl. ¶ 16.) 14. Defendant Herrera was not involved in, and had no control over, the CDC 115 hearing on June 20, 2005. (Herrera Decl. ¶ 17; Dkt. No. 97-1 at 3.)

15. Defendant Herrera's initial placement of plaintiff in ad seg on June 20, 2005, concluded his involvement with plaintiff. (Herrera Decl. ¶ 18.)

16. Defendant Herrera was not involved in plaintiff's continued retention in ad seg after June 20, 2005. (Herrera Decl. ¶ 19.)

17. Defendant Herrera was not involved in plaintiff's Institutional Classification Committee ("ICC") hearings. (Herrera Decl. ¶ 20; Dkt. No. 97-1 at 3.)

18. Defendant Herrera was not involved in, and did not prepare any chronos regarding plaintiff. (Herrera Decl. ¶ 21; Dkt. No. 97-1 at 3.)

19. Defendant Herrera was not involved in, and had no control over, any decisions made by the ICC regarding plaintiff's transfer. (Herrera Decl. ¶ 22; Dkt. No. 97-1 at 3.)

20. Defendant Herrera did not investigate, respond to, or participate in plaintiff's CDC 602 grievance (appeal log number SOL 05-1528), regarding Hickison. (Herrera Decl. ¶ 23.)

21. Defendant Herrera did not participate in any investigation regarding plaintiff's allegations against Hickison because such investigations are handled by CSP-SOL's Investigative Service Unit ("ISU"). (Herrera Decl. ¶ 24.)

22. Herrera signed the CDC 114-D placement notice on June 20, 2005.

23. Defendant Fry held the position of Facility Captain at CSP-SOL, and her job duties included administrative responsibility for a general population facility, supervision of the custody staff, and maintaining the safety and security of inmates, staff, and the institution. (Fry Decl. ¶ 2; Dkt. No. 97-1 at 3.)

24. Fry's work duties also included reviews of administrative segregation orders, participating in the ICC, and preparing chronos for inmate files as needed. (Fry Decl. ¶ 3; Dkt. No. 97-1 at 3.)

25. Fry was and is familiar with California Code of Regulations, Title 15, §§ 3335 (Administrative Segregation), 3336 (Segregation Order), 3337 (Review of Segregation Order), 3338 (Hearing on Segregated Housing Order) and 3339 (Release from Administrative Segregation and Retention in Administrative Segregation), which provisions establish the policies and procedures regarding Segregation Housing at all California Prisons. (Fry Decl. ¶ 4; Dkt. No. 97-1 at 3.)

26. On the first work day following an inmate's placement in ad seg, designated staff at not less than the level of Correctional Captain will review the order portion of the form CDC 114-D. Cal. Code Regs., tit. 15, § 3337. As Facility Captain, Fry was qualified under § 3337 to perform this review of the administrative segregation order. (Fry Decl. ¶ 6; Dkt. No. 97-1 at 3.)

27. If retention in ad seg is approved at such a review, the following determinations are also to be made:

a. The appropriate assignment of staff assistance, if such assistance is deemed necessary by the official initiating the form CDC 114-D. If the inmate's caseworker is not an appropriate assignment because of the caseworker's schedule, an alternate staff assistance assignment will be made. The inmate will be notified in writing of any change in the assignment of staff assistance. An inmate may also decline to accept the assignment of his or her caseworker or the first person assigned. In such cases a different staff member will be assigned to assist the inmate.

b. The inmate's desire to call witnesses or submit other documentary evidence. If the inmate requests the presence of witnesses or submission of documentary evidence at a classification hearing on the reason or need for retention in segregated housing, an investigative employee will be assigned to the case. A request to call witnesses and the names of witnesses must be submitted in writing by the inmate.

c. Whether the inmate has waived the 72-hour preparation period in which a classification hearing cannot be held, as indicated on the form CDC 114-D, or if the inmate desires additional time to prepare for a classification hearing. A request and the reason for needing additional time to prepare for a hearing must be submitted in writing, by the inmate. In the absence of the inmate's waiver of the 72-hour preparation period, or an approved request for additional preparation time, a classification hearing cannot be held earlier than 72 hours after the inmate's placement in segregated housing, but will be held as soon thereafter as is practical.

d. The most appropriate date and time for a classification hearing based upon the determination arrived at under (a), (b) and (c) above, and the time limitations prescribed in § 3338. Cal. Code Regs., tit. 15, § 3337. (Fry Decl. ¶ 7; Dkt. No. 97-1 at 3.)

28. Plaintiff's allegations against Hickison were disclosed at his CDC 115 hearing on June 20, 2005. (Fry Decl. ¶ 8; Compl. at 8.)

29. The CDC 115 hearing was the first time that Fry learned plaintiff had made allegations of staff misconduct. (Fry Decl. ¶ 9.)

30. Fry had no knowledge that Hickison had submitted a CDC 115 concerning plaintiff. (Fry Decl. ¶ 10.)

31. Fry was not involved in, and did not have control over, the CDC 115 hearing on June 20, 2005. (Fry Decl. ¶ 11; Dkt. No. 97-1 at 3.)

32. Fry reviewed plaintiff's CDC Form 114-D on June 21, 2005, which was one day after plaintiff's initial placement in ad seg, and was within the time limit established in § 3337. (Fry Decl. ¶¶ 12, 18, Ex. A.)

33. The CDC 114-D explained that plaintiff was being re-housed in ad seg on June 20, 2005, in order to protect the integrity of an investigation into plaintiff's allegations. Based on this information, plaintiff was deemed a threat to the safety and security of CSP-SOL. Plaintiff was to remain in ad seg pending an Administrative Review to ascertain plaintiff's appropriate program and housing needs. (Fry Decl. ¶ 14; Dkt. No. 97-1 at 3.)

34. In addition, under California Code of Regulations, Title 15, § 3272, plaintiff's custody level was increased to "Maximum," in order to facilitate the move. (Fry Decl. ¶ 15; Dkt. No. 97-1 at 3.)

35. Fry also reviewed the CDC 114-D placement notice and signed it on June 21, 2005.

36. During Fry's review of plaintiff's CDC 114-D, she interviewed plaintiff to determine if assignment of staff assistance or an investigative employee was necessary, or if plaintiff desired one. Plaintiff did not request assignment of staff assistance or an investigative employee, and Fry determined it was not necessary because plaintiff was literate, fluent in English and free of any mental incapacity that would affect his ability to understand the proceedings or to represent himself. (Fry Decl. ¶ 19; Dkt. No. 97-1 at 3.)

37. During Fry's review, plaintiff did not request any witnesses for the classification hearing. Fry determined that under California Code of Regulations, Title 15, § 3335, plaintiff needed to be retained in ad seg pending ICC review. Further, plaintiff's retention was necessary because plaintiff's release to the general population would jeopardize the integrity of the investigation into his allegation of staff misconduct, and to protect the institution's safety and security. (Fry Decl. ¶¶ 20, 21.)

38. Inmate Lancaster was also retained in ad seg, at "Maximum" custody status, until transferred to an alternate institution. (Dkt. No. 1 at 45.)

39. On June 23, 2005, the ICC convened for an initial ASU ("Administrative Segregation Unit") review. (Fry Decl. ¶ 24. Ex. B; Dkt. No. 97-1 at 3.)

40. The policies and procedures regarding inmate discipline, including Rules Violations, Classification Committees, disciplinary hearings, and hearing procedures which Fry was required to follow, are contained in California Code of Regulations., Title 15, §§ 3310 through 3326. (Fry Decl. ¶ 25; Dkt. No. 97-1 at 3.)

41. Captain Fry was part of the ICC, which also included Correctional Counselor II Baughman, Acting Chief Deputy Warden Johns, Dr. Fleischman, ASU Sergeant Terrazas, and Security & Investigation Correctional Officer Ballesteros. (Fry Decl. ¶ 26; Dkt. No. 97-1 at 3.)

42. Plaintiff was also present at the ICC hearing on June 23, 2005. (Fry Decl. ¶ 27; Dkt. No. 97-1 at 3.)

43. Plaintiff did not request witnesses for the purpose of the June 23, 2005 review. (Fry Decl. ¶ 29; Dkt. No. 97-1 at 4.)

44. At the time of that ICC review hearing, it was noted that, according to plaintiff's CDC 114-D, he was placed in ad seg on June 20, 2005, as a result of his making allegations of staff misconduct, and therefore housed in ad seg to protect the integrity of the ongoing investigation. The case was under investigation by Security and Investigation ("S&I"), a special team of staff at each institution assigned to investigate such claims. (Fry Decl. ¶ 30; Dkt. No. 97-1 at 4.)

45. Based upon ICC's review of plaintiff's CDC 114-D, his central file, disciplinaries, and a thorough discussion with plaintiff, the ICC elected to retain plaintiff in ad seg pending investigation, to continue "Maximum" custody level, and to refer the matter to a Classification Staff Representative ("CSR"), with a recommendation of 90-day ad seg extension. (Fry Decl. ¶ 31; Dkt. No. 97-1 at 4.)

46. At the conclusion of the ICC hearing on June 23, 2005, plaintiff was informed of his appeal rights with regard to the committee's action and he acknowledged his understanding and agreement. (Fry Decl. ¶ 35; Dkt. No. 97-1 at 4.)

47. Acting Chief Deputy Warden Johns was the chairperson of the ICC on June 23, 2005. (Fry Decl. ¶ 32;; Dkt. No. 97-1 at 4.)

48. As a matter of course, if the members of the ICC express any disagreement regarding the committee's findings or recommendations, Mr. Johns, as the Chairperson, had the authority to make final decisions. (Fry Decl. ¶ 33; Dkt. No. 97-1 at 4.)

49. The members of the ICC had no disagreement over their decision to retain plaintiff in ad seg pending investigation, to continue "Maximum" custody level, or to refer the matter to a CSR with recommendation of 90-day ad seg extension. (Fry Decl. ¶ 34; Dkt. No. 97-1 at 4.)

50. Correctional Counselor II Baughman, as Recorder, and Johns, as Chairperson, of the ICC hearing, both signed the June 23, 2005 form CDC 128-G. (Fry Decl. ¶ 36; Dkt. No. 97-1 at 4.)

51. On or around August 12, 2005, Fry prepared an informational chrono (CDC 128-B) regarding plaintiff, which stated:

You [plaintiff] were placed in the Administrative Segregation Unit on 6/20/05 after you made allegations of staff misconduct by your work supervisor, Ms. Hickison. Specifically, you claimed that she had attempted to coerce an over-familiar relationship with you. The investigation confirmed that your allegations were complete fabrications, and that you had solicited other inmates to lie about Ms. Hickison's actions to substantiate your allegations. Your actions negatively affected an employee's work assignment and the institution's ability to provide routine services to the inmate population by that unit. If successful, your false allegations could have resulted in the employee's termination of employment. A thorough review of all of the documentation revealed that there was insufficient information to support a finding of guilt in a disciplinary hearing, therefore no charges will be filed against you. However, the information is sufficiently credible to demonstrate your willingness to significantly jeopardize Ms. Hickison's welfare. Ms. Hickison has appropriately continued to work in her assignment in the Level II Clothing Distribution and your release to the general population at CSP-SOL would ...


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