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Marlin Penn v. Warden Mcdonald

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 25, 2011

MARLIN PENN, PLAINTIFF,
v.
WARDEN MCDONALD, ET AL.,
DEFENDANTS.

ORDER AND FINDINGS & RECOMMENDATIONS

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.

PROCEDURAL BACKGROUND

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.

SUMMARY JUDGMENT STANDARDS UNDER RULE 56

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).

FACTS

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. Postal Service, after which it relinquished responsibility. Id. at 12-14.

Plaintiff appealed this decision. Compl. at 10.

On May 29, 2007, plaintiff's appeal was denied at the Director's Level. Compl. at 6. Plaintiff was again informed that although the FBI is not a recognized entity pursuant to CCR 3141 warranting confidential communication, HDSP has agreed to treat the communications as such. Id. The Director's Level found no error regarding the processing of plaintiff's mail and affirmed the second level's review of plaintiff's appeal. Id.

2. "Opened and Inspected" Stamp (Appeal No. HDSP-07-1670)

On April 18, 2007, plaintiff filed an inmate appeal form (appeal number HDSP- 07-1670) stating that he received a letter from Cook who had enclosed with his letter a mailing envelope sent by plaintiff to Cook on April 16, 2007; that letter had an "Opened and Inspected by the Mailroom" stamp on it. Compl. at 22. Plaintiff accused the HDSP mailroom staff of opening plaintiff's confidential correspondence to Cook outside of plaintiff's presence, contrary to CDCR regulations for the handling of confidential communications. Id. Plaintiff also argued that his regular mail was being delayed or prevented. Id.

Plaintiff's appeal was partially granted at the informal level. Compl. at 23. While HDSP asked for the stamped envelope so as to investigate the matter, HDSP denied having an "Opened and Inspected" stamp and suggested that the receiving party stamped the envelope. Id.

Plaintiff appealed this decision on May 1, 2007, arguing that the receiving party would have no reason to "open and inspect" the mail addressed to them. Compl. at 23.

Keating interviewed plaintiff at the first formal level, after which plaintiff's appeal was partially granted. Compl. at 23, 26. During the interview, plaintiff allegedly became argumentative, causing Keating to cancel the interview. Id. at 26. Plaintiff was informed that HDSP does not have a stamp that looks like the one on the envelope, and that the stamp was most likely placed by the receiver of the envelope and provided to plaintiff as proof of receipt. Id. Plaintiff's assertion that his regular mail was being delayed or prevented was denied because the interview was canceled before Keating obtained any information concerning this claim. Id.

Plaintiff appealed this decision, arguing that it was Keating who became argumentative before canceling the appeal. Compl. at 23.

Plaintiff's appeal was partially granted at the second level by McDonald. Compl. at 24-25. The first level response was affirmed as to the stamp and plaintiff was again informed that HDSP does not have a stamp that states "Opened and Inspected by the Mailroom." Id. As to plaintiff's allegation concerning his regular mail, this was denied as "unsubstantiated." Id.

Plaintiff appealed this decision on July 30, 2007. Compl. at 23.

Plaintiff's appeal was denied at the Director's Level. Compl. at 22. The Director's Level affirmed the second level of review, and informed plaintiff that his legal mail was processed per regulations and that he was receiving all in-coming mail. Id.

B. Plaintiff's Correspondence with Attorney

Charoletta Ransom Prior to 2009, plaintiff sent approximately six letters to Ransom through regular mail at Ransom's home address. P.'s Depo at 20-21. Ransom has never been retained as plaintiff's attorney. Id. at 15.

On March 3, 2009 and March 9, 2009, plaintiff attempted to mail confidential letters to Ransom at her home address. FAC at 6. The letters were both returned to plaintiff by HDSP with directions to provide Ransom's State Bar number. Id.

On March 11, 2009, plaintiff filed an inmate appeal form (appeal number HDSP-09-0645) complaining that the HDSP mailroom was prohibiting him from corresponding with Ransom. Compl. at 43. Plaintiff's appeal was denied at the informal level of review, and plaintiff was informed that he must supply the mailroom with the attorney's State Bar number and correct mailing address before the letters can be mailed. Id.

Plaintiff appealed to the first formal level of review. Compl. at 43.

On March 18, 2009, plaintiff filed a second inmate appeal form (appeal number HDSP-09-0696) also concerning his correspondence with Ransom. Compl. at 36. This appeal was denied at the informal level of review, and plaintiff was informed that the mailroom staff was unable to locate this attorney through the State Bar website. Id. at 36.

Plaintiff appealed this decision to the first formal level of review. Compl. at 36. Keating reviewed these appeals and, due to their identical complaints, merged them. During his investigation, Keating was informed by his staff that the name and address on the envelope addressed to Ransom did not match any of the attorneys listed with the California State Bar. Keating Decl., ¶ 4. Examination of the evidence reveals that HDSP misspelled Ransom's first and last names when searching for her records through the State Bar website. See Compl. at 42. The exhibits attached to the complaint indicate that HDSP misspelled Ransom's first name as either "Charlette" or "Charletta." See Compl. at 36, 42. The proper spelling is "Charoletta." HDSP also misspelled Ransom's last name as "Ransen." P.'s Depo at 35.

Keating spoke to plaintiff about his appeal, explaining that in order for plaintiff to communicate with Ransom confidentially, plaintiff would need to provide Ransom's address as listed with the State Bar or Ransom's State Bar number to enable access of her records through the State Bar website. Keating Decl., ¶ 5. Plaintiff allegedly refused to provide either Ransom's office address or State Bar number. Id. ¶¶ 4-5. Keating then gave plaintiff the option of sending the letters to Ransom through regular mail, which plaintiff refused. Id.; FAC at 6. Because plaintiff did not provide any information to allow Keating to process the mail to Ransom confidentially and because plaintiff did not want his mail to be processed regularly, plaintiff's appeal was cancelled on April 10, 2009 pursuant to CCR Title 15, section 3084.4(d) ("An appellant's refusal to be interviewed or cooperate with the reviewer shall result in cancellation of the appeal"). Plaintiff did not complete the appeal to the Director's Level.

On May 7, 2009, plaintiff again attempted to contact Ransom by mailing a confidential letter; plaintiff completed a "Proof of Service by Mail" form evidencing delivery of a letter addressed to Ransom's home address and dropped off in a box for the United States Mail at HDSP. FAC, Ex. 2 at 6.

On May 8, 2009, plaintiff's correspondence was returned to him with notice that per CCR § 3142(a), "The address of an attorney must match the address listed with the State Bar." Compl., Ex. 2 at 7. Plaintiff was informed that the address he provided did not match Ransom's address listed with the State Bar. Id. Plaintiff was again given the option of either correcting the address or providing Ransom's State Bar number. Id.

On May 11, 2009, plaintiff filed his third appeal alleging that Keating was continuing to mishandle plaintiff's confidential legal mail addressed to Ransom. FAC, Ex. 2 at 12. On May 15, 2009, plaintiff received an appeals screening form. FAC, Ex. 2 at 11. Noting that the latest appeal was plaintiff's third appeal concerning the same issue, plaintiff was reminded that his first two appeals were canceled and returned to him for his failure to cooperate. Id.

Plaintiff once again filed an inmate appeal form challenging Keating's alleged refusal to mail correspondence to Ransom. FAC, Ex. 2 at 3. On June 22, 2009, plaintiff received an appeals screening form stating that appeal was screened because it was plaintiff's third appeal within three days. FAC, Ex. 2 at 1. Per CCR 3084.4(a)(1-4), an inmate may submit only one non-emergency appeal within a seven-calendar day period.

On July 22, 2009, plaintiff received a letter from the HDSP mailroom stating that Ransom's mail "can not be verified in the directory as an attorney" and that if plaintiff "wish[es] to have this correspondence mailed as regular mail, [he should] open the envelope, attach this notice, initial here x____ and return everything to the mailroom for processing." FAC, Ex. 2 at 5.

Plaintiff was subsequently informed by her mother that Ransom received on or around October 2009 all six letters addressed to her home address from 2007 to 2008. See P.'s Depo. at 19-21, 42. Plaintiff, however, has not submitted any admissible evidence attesting to this allegation.*fn5

C. Plaintiff's Correspondence with the Courts

Lastly, plaintiff contends he has experienced difficulty with mailing filings to the "courts." When asked at his deposition to clarify to which courts he was referring, plaintiff stated that he has had difficulty with only one court, a state court in Torrance, CA. P.'s Depo at 30. Plaintiff has not experienced any difficulty mailing or receiving any items from any other court. Id.

DISCUSSION

Defendants advance four grounds in support of their motion for summary judgment. First, they contend that plaintiff did not exhaust his administrative remedies as to his claim that his letters to Ransom were not mailed by defendants. Second, they contend that plaintiff has suffered no injury. Third, they contend that there is no evidence that defendants McDonald or Woodford are liable under a theory of respondeat superior. Lastly, they contend they are entitled to qualified immunity.

A. Failure to Exhaust

"Section 1997e(a) of Title 42 of the United States Code provides: No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

This exhaustion requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001)." McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. Dec. 5, 2002). Exhaustion must precede the filing of the complaint; compliance with the statute is not achieved by satisfying the exhaustion requirement during the course of an action. Id. at 1200. Claims dismissed for failure to exhaust administrative remedies should be dismissed without prejudice. Id.

In Jones v. Bock, 549 U.S. 199, 218 (2007), the United States Supreme Court held "that a prison's own grievance process, not [42 U.S.C. § 1997e(a)], determines how detailed a grievance must be to satisfy" the statutory requirement. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). In Griffin, the United States Court of Appeals for the Ninth Circuit held that "when a prison's grievance procedures are silent or incomplete as to factual specificity, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Id. at 1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). "The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Id.

California's Department of Corrections provides a four-step grievance process for prisoners who seek review of an administrative decision or perceived mistreatment. Within fifteen working days of "the event or decision being appealed," the inmate must ordinarily file an "informal" appeal, through which "the appellant and staff involved in the action or decision attempt to resolve the grievance informally." Cal. Code Regs., tit. 15, §§ 3084.5(a), 3084.6(c).

[Footnote omitted.] If the issue is not resolved during the informal appeal, the grievant next proceeds to the first formal appeal level, usually conducted by the prison's Appeals Coordinator. Id. §§ 3084.5(b), 3084.6(c). Next are the second level, providing review by the institution's head or a regional parole administrator, and the third level, in which review is conducted by a designee of the Director of the Department of Corrections. [Footnote omitted.] Id. § 3084.5(e)(1)-(2).

Brown v. Valoff, 422 F.3d 926, 929-30 (9th Cir. 2005). Department regulations provide that the "informal level is waived for a variety of grievances, including those concerning 'alleged misconduct by a departmental peace officer.' Cal. Code Regs. tit. 15, § 3084.5(a)(3)(G)." Brodheim v. Cry, 584 F.3d 1262, 1265 (9th Cir. 2009).

"Proper exhaustion[, which] demands compliance with an agency's deadlines and other critical procedural rules . . ." is required, Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386 (2006), and may not be satisfied "by filing an untimely or otherwise procedurally defective . . . appeal," Woodford, 126 S.Ct. at 2382. Pursuant to applicable regulations, the failure to cooperate or be interviewed constitutes abuse of the appeals system and results in cancellation of the appeal, subjecting it rejection upon screening. Tit. 15, §§ 3084.3(c)(8), 3084.4(d).

Here, plaintiff's first two appeals concerning the processing of his mail to Ransom were canceled after plaintiff refused to provide Keating with the proper spelling of Ransom's name, her correct mailing address and/or her State Bar number. By refusing to cooperate, plaintiff failed to comply with the procedural rules. As such, defendants' motion for summary judgment on plaintiff's claim as they relate to the processing of his mail to Ransom should be granted for failure to exhaust administrative remedies.

B. Plaintiff's Damage / Injury

Prison officials who deliberately interfere with the transmission of a prisoner's legal papers, or deny him access to a legitimate means to petition for redress for the purpose of thwarting his litigation may violate the prisoner's constitutionally protected right to access to the court. Lewis v. Casey, 518 U.S. 343, 351-55 (1996); Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994). However, plaintiff must be able to demonstrate a specific actual injury involving a non-frivolous legal claim, Lewis, 518 U .S. at 351-55, and must allege facts showing that he "could not present a claim to the courts because of the [defendants'] failure to fulfill [their] constitutional obligations." Allen v. Sakai, 48 F.3d 1082, 1091 (9th Cir. 1994). An actual injury will exist only if "a non-frivolous legal claim had been frustrated or was being impeded." Lewis, 518 U.S. at 353 & n.3. Thus, an inmate must plead facts sufficient to show that prison officials have actually frustrated or impeded a non-frivolous attack on either his sentence or the conditions of his confinement. Id. at 352-53.

In light of the court's recommendation that plaintiff's claim that HDSP was deliberately thwarting his attempts to communicate with Ransom be dismissed, plaintiff's remaining claims are HDSP's failure to mail a letter to Cook, HDSP's improper handling of a confidential letter addressed to Cook, and HDSP's interference with mail sent to the "courts."

Upon review, the undersigned finds no evidence to support any of these allegations. As to plaintiff's first claim, the facts show only that plaintiff submitted a letter to HDSP for mailing, HDSP did not list that letter on the CDC 119 log, and Cook did not receive the letter. No evidence has been submitted to justify a finding that Cook's non-receipt of plaintiff's letter was due to any actions of HDSP staff as opposed to the U.S. Postal Service's failure to deliver. Moreover, plaintiff's allegation that HDSP is preventing communication with the FBI is belied by plaintiff's CDC 119 log, which evidences that plaintiff has mailed to and/or received from the FBI multiple letters.

As to plaintiff's second claim that HDSP mishandled a confidential letter addressed to Cook, the court again finds that there is no evidence from which to conclude that HDSP violated plaintiff's rights by improperly opening and stamping the letter. To the contrary, Keating has declared, and plaintiff has not refuted, that HDSP does not possess a stamp that states "Opened and Inspected by the Mailroom."

Lastly, plaintiff's argument that he has experienced difficulty communicating with the "courts" is unsupported. Plaintiff admits that he has had difficulty with only one court, despite numerous filings in state and federal courts. In his opposition, plaintiff asserts that he attempted to mail a motion for extension of time to this court on October 31, 2010. Opp'n at 4. Plaintiff argues that the court has not responded and/or acknowledged receipt of this motion. Id. The docket, however, reflects that plaintiff filed a motion for an extension of time on November 15, 2010, which was granted on November 30, 2010. See Doc. Nos. 49-50. Plaintiff was granted up to and including December 30, 2010 to file his opposition. Plaintiff filed his opposition on December 29, 2010. Doc. No. 56.

Because the court does not find that plaintiff's mail has been tampered with, it is immaterial whether plaintiff has claimed injury. Nonetheless, the court will address certain unsustainable allegations of injury made in plaintiff's opposition. Plaintiff contends that as a result of HDSP's mishandling of his mail, he has lost the representation of the Los Angeles Public Defender's office and, further, that he has been denied multiple requests made pursuant to the Freedom of Information Act, 5 U.S.C. § 552, to obtain records from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") -- losses and denials that the plaintiff notes coincided with the filing of the instant lawsuit. See Opp'n at 3. Any connection between these incidents is tenuous. The Public Defender's letter withdrawing representation indicates that the withdrawal was due to the fact that the type of claim plaintiff sought to pursue through habeas corpus (prosecutorial misconduct) was not the type litigated by that office, which focuses on peace officer misconduct. Opp'n, Ex. 2 at 1. Moreover, the ATF's denial of requests for information was made nearly one year prior to the initiation of this suit and was based on exceptions provided by 5 U.S.C. § 552(b)(3). See id. at 11.

Accordingly, the undersigned recommends that defendants' motion for summary judgment be granted as to this ground.

C. Respondeat Superior

Next, defendants seek summary judgment on the ground that plaintiff has failed to state any allegations as to defendants McDonald and Woodford.

Supervisory personnel are generally not liable under section 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Examination of the FAC reveals no charging allegations as to either McDonald or Woodford. In fact, other than listing their names as defendants in this action and McDonald's processing of plaintiff's appeals at the second formal level, there is no further mention of either McDonald or Woodford. Accordingly, defendants' motion for summary judgment should be granted as to this ground.

D. Qualified Immunity

For the reasons set forth above, the court declines to address defendants' argument for qualified immunity.

For all of the foregoing reasons, IT IS HEREBY ORDERED that:

1. Defendants' motion to strike be granted;

2. Plaintiff's motion to file a sur-reply be denied; and IT IS HEREBY RECOMMENDED that defendants' September 17, 2010 motion for summary judgment be granted.

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." 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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