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Joseph Johnson v. G. Bishop

May 2, 2011



Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's claims raised in the complaint filed July 30, 2009, arising from allegations that while at Mule Creek State Prison ("MCSP"), defendants violated his Eighth and Fourteenth Amendment rights by facilitating a race-motivated attack on plaintiff, a black inmate, by a white inmate; attempting to cover-up the incident by issuing a falsified Rules Violation Report ("RVR"); and violating plaintiff's due process rights at the hearing on the RVR by denying plaintiff's request to call a witness. Plaintiff also claims that his rights under the Equal Protection clause were violated when he was removed from the Enhanced Outpatient Program ("EOP"), a mental health program, on account of his race. This matter is before the court on defendants' motion for summary judgment. Plaintiff opposes the motion.


All facts are undisputed unless noted otherwise. At all times relevant to this action, plaintiff, a black inmate, was housed at MCSP. Inmate Clem, a white inmate and not a party to this action, was also housed at MCSP. Defendant Bishop was a correctional officer at MCSP. Lieutenant Kudlata was a senior hearing officer at MCSP.

It is undisputed that on November 28, 2008, plaintiff and Clem were involved in an altercation near plaintiff's cell. It is also undisputed that after the altercation, plaintiff was transferred to Administrative Segregation ("AdSeg") and charged with Battery on an Inmate, while Clem was merely returned to his assigned housing and not charged with any violations. It is further undisputed that plaintiff sustained an injury on his left hand and Clem sustained an injury on his face.

All remaining facts are in dispute. Plaintiff states that on the day in question, he was watching television with his cellmate when Clem approached his cell door. Pl.'s Dep. at 40. Plaintiff had never met or interacted with Clem in the past. Id. In the conversation that ensued, Clem accused plaintiff of being in possession of one of Clem's music CDs; plaintiff denied the accusation and told Clem to step away from the cell door. Id. Clem responded angrily, saying "What you mean get away from your door? Nigger, I'll get your door cracked and come in there and kick your ass." Id. Clem then called out to Bishop, "Bishop, open F-ing 114." Id; Pet., Ex. A at 31. After Clem yelled again to Bishop to open the door, plaintiff's cell door opened and Clem stepped inside. Pet., Ex. A at 31. Plaintiff claims he feared for his safety and responded by acting in self-defense, punching Clem one time in the face with his left hand. Id.

Defendants dispute this version of events. In the RVR issued following the incident, Bishop states that while he was releasing inmates into the dayroom, he believed he saw plaintiff's cellmate flash the cell lights to communicate a desire to be released from the cell to shower. Bishop Decl., ¶ 5. After hearing an inmate yell to open the door and upon believing that he saw a cell light flash, Bishop opened the door. Id. ¶ 6. Bishop then maintains that he saw plaintiff step out and strike Clem, a Building 5 porter who was standing near the cell door, in the facial area one time with his right hand. Id. ¶ 11; Pet., Ex. A at 28. Plaintiff was ordered to the ground, handcuffed and eventually rehoused in AdSeg while Clem was returned to his assigned housing. Pet., Ex. A at 28.

On the evening of November 28, 2008, plaintiff filed a 602 inmate grievance form.*fn1 In the grievance, plaintiff repeated the allegations aforementioned. See Pet., Ex. A at 31. Plaintiff's appeals were denied at all levels of review. See Pet., Ex. A at 14-16; 22-26.

On December 18, 2008, a hearing was held as a result of the pending battery charge against plaintiff. See Pet. at 12. Defendant Lieutenant Kudlata was the senior hearing officer. Id. at 5. During the hearing, plaintiff claims Kudlata was biased against him and denied plaintiff the right to call his cellmate as a witness. Id. Relying upon Bishop's statement and plaintiff's medical record, plaintiff was found guilty of battery and assessed a 90-day loss of behavioral credit. Id. at 12.

On February 10, 2009, plaintiff was removed from EOP by the Institutional Classification Committee ("ICC"). Pl.'s Dep., Ex. C. Neither defendant was part of the ICC and neither made the decision to remove plaintiff from EOP. Bishop Decl. ¶ 13; Kudlata Decl. ¶ 6.

Plaintiff asserts that he was removed from EOP due to the false disciplinary charge and conviction. See Pl.'s Dep. at 15. Per plaintiff, once Bishop opened the cell door, it produced a "domino effect" that eventually resulted in plaintiff's removal from EOP. That is, plaintiff argues that because he was forced to administratively appeal the incident, he was no longer found to be in need of mental health care. Id.


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 ...

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