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Xai Xiong v. H. Kirkland

January 24, 2012

XAI XIONG, PLAINTIFF,
v.
H. KIRKLAND, ET AL. DEFENDANT.



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

FINDINGS AND RECOMMENDATION

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding on his amended complaint, filed March 29, 2010 ("Am. Comp."), in which he alleges that certain correctional officers at High Desert State Prison violated his constitutional rights when he was transferred into administrative segregation and while he was housed in that unit. Plaintiff seeks an unspecified amount of money damages only.

Pending before the court is defendants' motion for summary judgment, filed on July 22, 2011 (Doc. Nos. 40, 41, 42), to which plaintiff filed an opposition on September 15, 2011 (Doc. No. 46), after which defendants filed a reply on September 27, 2011 (Doc. No. 47).*fn1

The undersigned recommends that the motion for summary judgment be granted in part and denied in part.

Motion for Summary Judgment

Defendants move for summary judgment on two grounds: (1) that there are no genuine issues of material fact to support plaintiff's allegations that defendants violated his constitutional rights; and (2) that the defendants are entitled to qualified immunity.

Plaintiff has filed a response to the motion which includes his own sworn declaration. His opposition does not include any objections to the defendants' statement of undisputed facts, nor did plaintiff compile his own counter-statement of material facts.

Instead, plaintiff requests further discovery "to comparitively discount defendants false contentions that petitioner suddenly altered all hygenical and sanitary habits, once petitioner was placed in custodial care of defendants whose single act of probity of the 'Record of Daily Activity' inheres on the credibility of said defendants." (Doc. No. 46, p.2:9-15). Discovery in this case closed on March 11, 2011, (see Doc. No. 26), and this court previously denied plaintiff's tardy request for an extension of the discovery deadline. See Doc. No. 44. Background

The following facts are undisputed unless otherwise noted.

Plaintiff is a state prisoner in the custody of California Department of Corrections and Rehabilitation ("CDCR"). Defendants' Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment ("SUF") No. 1. On November 24, 2006, a group of inmates assaulted two correctional officers at High Desert State Prison ("HDSP"). SUF No. 2. Plaintiff was identified as one of the inmates who participated in the assault of the correctional officers. SUF No. 3. Plaintiff, along with the other inmates identified as having been involved in the battery, were to be placed in the ad-seg unit. SUF No. 4. At HDSP, inmates processed into and out of ad-seg are placed in handcuffs. SUF No. 5. On November 28, 2006, plaintiff was placed in handcuffs and escorted by defendant Kirkland from his cell to a holding cage for processing and placement in ad-seg. SUF No. 6; SUF No. 43.*fn2

Plaintiff alleges that he was escorted "into Z-unit with excessive force into a holding cage." Doc. No. 46, Declaration of Plaintiff ("Pl. Dec.") 1:24. Specifically,

[Defendant Kirkland] forced me in there face first towards the wall. He came from behind me, grabbed me from the back, forced me down, pushed his hand on top of me where he had me at the bottom where I was laying down.

Doc. No. 42, Deposition of Plaintiff, taken March 10, 2011 ("Dep. Tr.") 14:14-18. Plaintiff further alleges that, while in the holding cage,

H. Kirkland came up from behind me and force me down to the floor. With his hands pushing down on me with his weights. He then taunt me saying "I could squash you like a bug." Then C/O Kirkland punch me in the face with an open palm and stand back up and back away from the holding cage.

Pl. Dec. at 1:26-2:3.

Defendant Kirkland declares that at no time did he force plaintiff to the ground with his hands or use any other means to force plaintiff to the ground. Doc. No. 41, Declaration of Defendant Kirkland In Support of Motion for Summary Judgment, dated July 22, 2011, ("Kirkland Decl."), ¶ 7. Defendant Kirkland additionally declares that he did not punch plaintiff in the face with his palm, threaten him, or tell plaintiff that he would squash him like a bug. Id.

Defendants Kissinger, Wright, and Garate were present when defendant Kirkland escorted plaintiff into the holding cell. Dep. Tr. 14:22-15:10; 16:4-14; 18:23-19:4; SUF No. 40.

Defendants deny that defendant Kirkland forced plaintiff to the ground, punched him in the face with any open palm, or used any other means to force him to the ground of the holding cage. SUF No. 7. Defendants also deny that defendant Kirkland threatened to squash plaintiff, upon his arrival in ad-seg or at any other time. Id.

Plaintiff suffered no injury as a result of being pushed to the ground by defendant Kirkland. Dep. Tr. 18:4-8. As to his allegation regarding defendant Kirkland's punch, plaintiff alleges that he suffered injuries of "discoloration on my right cheek," for which he did not seek medical treatment. Dep. Tr. 19:5-23; 68:12-21.*fn3 Plaintiff currently has no discoloration as a result of the alleged punch. Dep. Tr. 68:18-21.

After plaintiff was processed into ad-seg, he was escorted by defendant Wright and non-defendant Renner from the holding case, and placed in a cell in ad-seg. SUF. No. 8. According to plaintiff,

I was escort [sic] to my assign cell with excessive force by C/Os Wright and Renner. With my hands in cuff behind me each C/Os put their require arms through my and place their hands on both my shoulders. They both force my arm up which makes me bow forward to relief [sic] some pains in both my shoulders and arms. I was basically drag [sic] to my assign cell #139.

Pl. Dec. 2:11-16. According to plaintiff, he sometimes has pain in his left shoulder, but has never sought or received medical treatment for the alleged shoulder injury. Dep. Tr. 68:22-69:19.*fn4 Defendants deny that officers Wright and Renner manipulated or put pressure on plaintiff's arms or shoulders during their escort, and additionally deny that they pushed or dragged him into the ad-seg unit or to his cell. SUF No. 9.

An inmate housed in ad-seg is permitted to possess in his cell a "fish kit" containing toilet paper, a bar soap, a toothbrush, tooth powder, a comb, a plastic spoon, a paper cup, a pen filer, and various CDCR forms. SUF No. 12. When plaintiff was housed in ad-seg, he was given a fish kit that contained toilet paper, a bar soap, a toothbrush, tooth powder, a comb, a plastic spoon, a paper cup, a pen filer, and various CDCR forms. SUF No. 13.

Plaintiff alleges that he was not given a fish kit when he first arrived at his ad-seg cell. Pl. Dec. at 2:22-24. According to plaintiff, he did not get a fish kit until "Thursday" -because plaintiff has not provided the date, the court construes this designation to mean Thursday, November 30, 2006, or two days after plaintiff was moved into ad-seg. See footnote 2, supra. Plaintiff alternatively claims that he was without a fish kit for five days - November 29th, November 30th, December 1st, December 2nd, and December 3rd. Dep. Tr. 31:23-33:13.

An inmate housed in ad-seg was provided a bed roll containing two blankets, two sheets, a towel, three shirts, three pairs of boxer shorts, three pairs of socks, a pair of shoes, and a jumpsuit. SUF No. 14.

Plaintiff was also given a bed roll containing two blankets, two sheets, a towel, three tee-shirts, three pairs of boxer shorts, three pairs of socks, a pair of shoes, and a jumpsuit. SUF No. 15. Plaintiff alleges that, upon his arrival into ad-seg, defendant Kirkland gave him a t-shirt, a pair of boxer shorts, and a pair of socks "that clearly had spit on it." Pl. Dec. 2:4-7; 3:2-3. Plaintiff further alleges that when he entered his first ad-seg cell, he found that one of the two blankets, and both sheets, had been stuffed into the toilet. Pl. Dec. 2:18-20; Dep. Tr. 28:17-29:18.

Plaintiff further alleges that he and his cellmate were not provided with mattresses upon their arrival in ad-seg. Pl. Dec. 2:22; 3:4; Dep. Tr. 39:6-25. Plaintiff claims that, during his first night in cell number 139, defendant Wright kicked a mattress to the plaintiff's cell door, but, when plaintiff asked if he could have the mattress, defendant Wright smiled and left. Pl. Dec. 6:9-13.

Defendants allege that there was a mattress in the cell when plaintiff was placed in ad-seg. SUF No. 10. Plaintiff alleges that he did not receive a mattress until he was moved to his second cell, four days after he was originally moved into ad-seg. Dep. Tr. 39:9-19.

When plaintiff was transferred from ad-seg cell number 139 to ad-seg cell number 136, he was provided with the same items listed above. SUF No. 16. Plaintiff further alleges that, after he was moved to cell number 136, he received a fish kit "the next morning." Pl. Dec. 4:22.*fn5 Plaintiff further alleges that, when he and his cellmate were moved to their second cell, the sheets and blankets were again stuffed into the toilet and "most of our cleaning supplies were thrown away." Pl. Dec. 4:4-6. Officer Vincente, who is not a defendant, replaced the sheets and blankets that same night when plaintiff asked for replacements. Pl. Dec. 4:10-14. Plaintiff alleges that, the next day, he and his cellmate received a bedroll and mattresses. Pl. Dec. 4:21-22.

Defendants claim that they never provided plaintiff with clothing, linens, or bedding that had been spat on or placed in the toilet. SUF No. 21. Defendants allege that, when plaintiff was placed into his ad-seg cell, there was no visible indication of a toilet leak or flooding. SUF No. 11. It is undisputed that plaintiff did not see defendant Kirkland or any other defendant put plaintiff's blanket and sheet in the toilet, or spit on plaintiff's clothes. SUF No. 22; see also Dep. Tr. 30:4-31:15; 54:1-55:6.

An inmate housed in HDSP's ad-seg is given grooming tools on days that grooming tools are given to the inmates. SUF No. 17. Plaintiff was given grooming tools while he was housed in ad-seg. SUF No. 18. Plaintiff claims that, upon his arrival in ad-seg, and upon arrival in his second cell, he and his cellmate could not use grooming tools. Pl. Dec. 3:26, 4:24. Plaintiff also claims that defendant Kissinger refused to issue him grooming tools, and that he ignored plaintiff's requests to use the grooming tools. Pl. Dec. 6:22-23. A review of the RDAs reflects that, from November 28, 2006 through February 28, 2007, the first three months plaintiff was in ad-seg, he was offered a shave or haircut at least 12 times. See Kirkland Ex. A at 1-10.

Inmates housed in HDSP's ad-seg unit may exchange their dirty clothes and linens for clean ones every week. SUF No. 19. Plaintiff alleges that, upon his arrival in ad-seg and when he was moved to his new cell, he was not able to exchange his clothing (Pl. Dec. 3:25-26, 4:24), and that defendant Kissinger refused to allow plaintiff to exchange his dirty sheets for new ones. Pl. Dec. 7:1-2. A review of the RDAs reflects that, from November 28, 2006 through February 28, 2007, the first three months plaintiff was in ad-seg,*fn6 his laundry was exchanged ten times, and that twice, torn sheets were confiscated after cell searches. See Kirkland Ex. A at 1-10.

Third watch officers were responsible to serve inmates in ad-seg with their dinner. SUF No. 23. Defendants always served plaintiff's dinners through the food port of his cell. SUF No. 24. Plaintiff variously claims that, beginning in November 2006 and continuing through May 2007, he did not receive food, in that the tray would contain only "residue," that the main course would be missing from his tray, or that the officers serving him tampered with his food by placing their hands in it. See Pl. Tr. 40:10-25, 42:9-14 (testimony concerning no dinner or only residue); 45:16-25 (testimony concerning no breakfast); 48:14-50:24 (testimony concerning no main course); 50:25-53:25 (testimony concerning tampering). Defendants allege that they did not deny plaintiff the main course of his dinner meal or tamper with his food. SUF No. 24.

The RDAs for the period November 28, 2006 through May 31, 2007 show that plaintiff was served breakfast, lunch, and dinner on all days except December 25, 2006; February 2, 2007, February 4, 2007; and February 9, 2007. The entry for December 25, 2006 does not indicate if plaintiff was served breakfast or lunch. For the remaining dates, there are no entries for the second watch, when breakfast and lunch are served. See Kirkland Ex. A.

HDSP operational procedures required officers to conduct weekly cell inspections to ensure that the ad-seg inmates properly maintained their cells, that inmates do not possess items that they were not allowed to have, and that they are not in possession of illegal materials. SUF No. 25. The inspections were mandatory and done regardless of whether an inmate has submitted an administrative grievance. Id. If the cell inspection discovered that an inmate possessed items to which he was not entitled, such items were removed from the inmate's possession, and the inmate was provided with a receipt identifying the items that were removed. SUF No. 26.

Plaintiff alleges generally that "legal mails and personal letters, magazines and newspapers" were improperly confiscated by the defendants during their cell searches, but that he never received a receipt. Pl. Dec. 5:11-14. Defendants allege that while plaintiff was housed in ad-seg, no items were ever removed from his cell during the mandatory inspections, and thus no receipts were provided to plaintiff. SUF No. 27.

Plaintiff additionally alleges that defendants searched his cell in retaliation for administrative grievances filed by plaintiff alleging misconduct by defendant Kirkland. See Doc. No. 15, First Amended Prisoner Civil Rights Complaint filed March 29, 2010 ("Am. Comp."), at 3(b).

At HDSP, officers are required to conduct cell counts of inmates to ensure the presence of the inmates (no escapes), and to ensure that the inmates were not ill or otherwise required emergent attention. SUF No. 28. Plaintiff alleges that, during routine nighttime counts, defendant Kirkland would either kick plaintiff's door to wake plaintiff or shine the light from his flashlight in plaintiff's face until plaintiff woke up. Am. Comp. at 3(d).

At all times relevant to this case, an inmate housed in HDSP's ad-seg unit was given the opportunity to exercise a minimum of ten hours per week. SUF No. 30. Yard exercise for an inmate in ad-seg may be suspended due to disciplinary offenses committed by the inmate. SUF No. 31.

Inmates housed in HDSP's ad-seg were also permitted to shower three times per week. SUF No. 32.

Plaintiff claims that he was denied yard access from November 28, 2006 through March 2007. Dep. Tr. 64:15-65:17; see also Pl. Dec. 7:8 ("[f]or months, I ...


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