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Marlin Penn v. Warden Mcdonald

March 25, 2011



Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's claims raised in his amended complaint filed December 7, 2009, arising from allegations that defendants at High Desert State Prison ("HDSP") tampered with, withheld and prevented his legal mail from being mailed. This matter is before the court on defendants' motion for summary judgment.


On December 7, 2009, plaintiff filed a first amended complaint ("FAC"), superseding his August 31, 2009 complaint.*fn1 In the FAC, plaintiff claims that defendants have prevented plaintiff from corresponding with Federal Bureau of Investigations ("FBI") Agent Brian Cook ("Cook") and with attorney Charoletta Ransom ("Ransom").

On March 29, 2010, defendants M.D. McDonald and M. Keating filed an answer. On April 9, 2010, a discovery and scheduling order issued. On October 25, 2010, defendants McDonald and Keating filed the instant motion for summary judgment. On December 8, 2010, defendant Jeanne Woodford filed a joinder to the motion for summary judgment. On December 29, 2010, plaintiff filed an opposition. On January 28, 2011, defendants filed a reply. On February 7, 2011, plaintiff filed a sur-reply. On February 15, 2011, defendants filed a motion to strike plaintiff's sur-reply. On February 24, 2011, plaintiff filed a request to file a sur-reply.


Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).*fn2 A shifting burden of proof governs motions for summary judgment under Rule 56. Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010). 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 then-numbered Fed. R. Civ. P. 56(c)). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact").

If the moving party meets its initial responsibility, the opposing party must establish that a genuine dispute as to any material fact actually does exist. SeeMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party must demonstrate the existence of a factual dispute that is both material, i.e., it affects the outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir. 2010), and genuine, i.e., "'the evidence is such that a reasonable jury could return a verdict for the nonmoving party,'" FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at 248). A party opposing summary judgment must support the assertion that a genuine dispute of material fact exists by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."*fn3 Fed. R. Civ. P. 56(c)(1)(A)-(B). However, the opposing party "must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Anderson, 477 U.S. at 252).

In resolving a summary judgment motion, the evidence of the opposing party is to be believed. SeeAnderson, 477 U.S. at 255. Moreover, all reasonable inferences that may be drawn from the facts placed before the court must be viewed in a light most favorable to the opposing party. SeeMatsushita, 475 U.S. at 587; In re Oracle Corp. Sec. Litig., 627 F.3d at 387. However, to demonstrate a genuine factual dispute, 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 January 26, 2010, 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), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).


The following facts are undisputed unless noted otherwise. At all times relevant to this action, plaintiff was a state prisoner at HDSP, defendant Keating was the Sergeant of the Mailroom at HDSP, defendant McDonald was the Warden at HDSP, and defendant Woodford was the Director of the California Department of Corrections and Rehabilitation ("CDCR"). As the Sergeant of the Mailroom, Keating was responsible for responding to inmate appeals pertaining to mail issues. Keating Decl., ¶ 1.

An inmate may have mail processed as either regular mail or as confidential mail. An inmate may correspond confidentially only with those persons, legal organizations, public agencies and governmental entities listed at California Code of Regulations ("CCR"), Title 15 Section 3141(c). The list includes state and federal officials, county agencies, state and federal judges and courts, attorneys listed with a state bar association, the director of the CDCR, and certain legal service organizations. CCR § 3141(c). The FBI is not an agency listed in CCR § 3141(c). See id.

Incoming mail will be processed as confidential mail if the envelope "bears the name or title and a return address of persons and the office of persons listed in Section 3141." Id. § 3143. Confidential mail may be opened and inspected for contraband only in the presence of the inmate. CCR § 3144. The inspecting correctional officers may not read the contents of confidential mail. Id.

In order for communications with an attorney to be processed confidentially, CCR § 3142(a) states that "[t]he letter must be addressed to a person or to the office of a person listed in Section 3141. The address of an attorney must match the address listed with the State Bar."

Plaintiff's amended complaint challenges defendants' actions as they relate to plaintiff's confidential letters to Cook and Ransom, and plaintiff's filings with the "courts." Although plaintiff contends that certain confidential mail has been tampered with, the evidence shows that plaintiff has sent and received numerous confidential / legal documents through the HDSP mailroom concerning and/or challenging his underlying conviction on allegations of prosecutorial misconduct to, inter alia, various attorneys, the U.S. Department of Justice, the Los Angeles Superior Court, the American Civil Liberties Union, and the U.S. House of Representatives. See Mot. for Summ. J., Ex. C.

A. Plaintiff's Correspondence with FBI Agent Brian Cook

1. The June 18, 2006 Letter to Cook (Appeal No. HDSP-06-1983)

On July 11, 2006, plaintiff filed an inmate appeal form*fn4 (log number HDSP-06- 1983) complaining that a letter he mailed to Cook on June 18, 2006 was never received by Cook and that it was not documented on the CDC 119 log, a mail log for confidential letters; plaintiff requested that HDSP contact Cook regarding receipt of the letter. Compl. at 8. Plaintiff's appeal was partially granted at the informal level of review. Id. Plaintiff was informed that his letter was mailed out, but was not logged on the CDC 119 log because the FBI is not listed as an entity with whom an inmate may correspond confidentially. Id. Plaintiff appealed this decision on August 25, 2006. Id.

Keating interviewed plaintiff at the first formal level, after which plaintiff's appeal was partially granted. Compl. at 9-10. Plaintiff was advised that his future correspondence with the FBI would be logged as confidential, but plaintiff's request that Cook be contacted to confirm receipt was denied. Id.

Plaintiff appealed this decision October 4, 2006, asserting that previous correspondence with the FBI had been documented on the CDC 119 log. Compl. at 9, 11.

Plaintiff's appeal was partially granted at the second formal level by McDonald. Compl. at 10. Plaintiff was informed that all future correspondence with the FBI would consistently be listed on the CDC 119 log and that HDSP delivered plaintiff's mail to the U.S. ...

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