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Tommy Ray Brown v. G. Marshall

February 29, 2012



Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on a motion for summary judgment brought on behalf of defendants Quezada, Vanderville, McDonald, Runnels, Wong, Marshall, Gore, and Statti pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has filed an opposition to the motion and defendants have filed a reply.


Plaintiff is proceeding on his third amended complaint against defendants Quezada, Vanderville, McDonald, Runnels, Wong, Marshall, Gore, and Statti. In relevant part, plaintiff alleges in that complaint as follows. On March 15, 2005, prison officials placed plaintiff in administrative segregation, pending an investigation for Conspiracy to Assault Staff. Prison officials later enhanced the disciplinary charge against plaintiff from Conspiracy to Assault Staff to Conspiracy to Murder Peace Officers. On May 12, 2005, plaintiff appeared at his disciplinary hearing and was found guilty of Conspiracy to Murder Peace Officers. For procedural reasons, prison officials twice re-issued and re-heard plaintiff's disciplinary charge. Ultimately, plaintiff was found guilty of the charge and assessed 180-days loss of time credits. The Institution Classification Committee also committed him to a 48-month security housing unit ("SHU") term. (Third Am. Compl. at 6-10.)

Plaintiff alleges that defendants deprived him of due process in connection with the adjudication of his disciplinary charge. For example, plaintiff claims that the defendants denied him adequate notice of the charge; relied on confidential informants without assessing if those informants had first-hand information; denied him his right to call witnesses and prepare a sufficient defense; and falsified reports to indicate that they had acted in compliance with due process requirements even though they had not. (Third Am. Compl. at 17-41.)


Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56©.

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 Fed. R. Civ. P. 56©). "[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. 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. 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©, is satisfied." Id. at 323.

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 does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this 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).

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 631. 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 the 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 587 (citation omitted).


I. Civil Rights Act Pursuant to 42 U.S.C. § 1983

The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 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). 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).

II. The Fourteenth Amendment and Due Process Protections for Prisoners Prisoners retain their rights under the Fourteenth Amendment Due Process

Clause, but they are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). It is well established that "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id. However, prisoners are entitled to the following procedures at disciplinary hearings where they may lose good-time credits or be placed in solitary confinement: (1) advanced written notice of the claimed violation at least twenty-four hours before the hearing, (2) a written statement of fact findings as to the evidence relied upon and reasons for the actions taken, and (3) a right to call witnesses and present documentary evidence where such would not be unduly hazardous to institutional safety or correctional goals. Id. at 563-66; see also Hines v. Gomez, 108 F.3d 265, 268 (9th Cir. 1997); McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986). If a prisoner is illiterate or the issues are so complex so as to make it unlikely that the inmate will be able to collect and present the evidence necessary, the prisoner may be able to seek help from a fellow inmate or help from correctional staff. Id. at 570. "Findings that result in the loss of liberty will satisfy due process if there is some evidence which supports the decisions of the disciplinary board." Zimmerlee v. Keeney, 831 F.2d 183 (9th Cir. 1987). See also Edwards v. Balisok, 520 U.S. 1584, 1589 (1997); Burnsworth v. Gunderson, 179 F.3d 771, 773 (9th Cir. 1999); Hines v. Gomez, 108 F.3d at 268.


I. Defendants' Statement of Undisputed Facts and Evidence

Defendants' statement of undisputed facts is supported by citations to copies of the rules violation reports ("RVR") issued to plaintiff, copies of confidential information disclosure forms provided to plaintiff prior to his disciplinary hearings, and copies of confidential memoranda from plaintiff's central prison file.*fn1 It is also supported by references to excerpts from plaintiff's deposition.

The evidence submitted by defendants establishes the following. Between 2001 and 2006, plaintiff was incarcerated at High Desert State Prison ("HDSP"). On March 15, 2005, prison officials removed plaintiff from the general population and placed him in administrative segregation. They informed him that they were placing him in administrative segregation because he was implicated in a conspiracy to assault correctional staff, and that their investigation of the conspiracy was ongoing. (Defs.' SUDF 2-3, Defs.' Exs. A & B, Pl's Dep.)

By way of background, as early as December 30, 2003, reliable confidential source(s) disclosed to prison officials that African American inmates at HDSP were forming a conspiracy on C-Facility to assault correctional staff. According to the source(s), African American inmates were angry with the way correctional staff handled events surrounding a race riot that occurred at HDSP. Some inmates believed that correctional staff had intentionally manipulated events to cause the riot and to also cause inmates of other racial and ethnic backgrounds to injure African American inmates. The source(s) provided details of the conspiracy, including that staff were going to be lured into vulnerable locations while other inmates staged a mock fight. As staff responded to the mock fight, predetermined inmates were assigned to attack specific peace officers. The inmates were supposed to carry out the attacks using stabbing weapons on the victim's face, neck, and groin, essentially areas not covered by the officers' stab-resistant vests. (Defs.' SUDF 4, Defs.' Ex. D.)

On February 6, 2004, reliable confidential source(s) disclosed that African American inmates at HDSP's C-Facility greatly resented staff who placed them on lock-down status following the race riot in which inmates of other races targeted African American inmates. (Defs.' SUDF 5, Defs.' Ex. E.)

On January 26, 2005, reliable confidential source(s) disclosed that the previously-identified plan was ready to commence as prison officials were releasing African American inmates from lock-down status. The source(s) identified plaintiff as an individual actively involved in planning the conspiracy and identified five of the intended victims. The source(s) provided information that inmates had acquired weapons in order to carry out of the attacks. (Defs.' SUDF 6, Defs.' Ex. F.)

On February 25, 2005, reliable confidential source(s) disclosed that plaintiff was acting with eight other inmates in the previously-described conspiracy and indicated that the co-conspirators had agreed that if prison officials discovered their plan they would all claim that there was too much "factionalism" or "tribalism" among African American inmates to work together towards a common goal of assaulting specific prison staff. The source(s) indicated that the plan was to kill correctional staff. (Defs.' SUDF 7, Defs.' Ex. G.)

On May 2, 2005, reliable confidential source(s) disclosed that plaintiff took part in communications to advance the plan to assault the correctional officers on C-Facility at HDSP. (Defs.' SUDF 8, Defs.' Ex. H.)

Plaintiff has a history of assaulting and conspiring to assault correctional staff. On February 14, 1991, plaintiff battered two correctional officers at Pelican Bay State Prison. In addition, in June 2000, prison officials identified plaintiff as an inmate involved in a plan to kill correctional staff at Pelican Bay State Prison. (Defs.' SUDF 9, Defs.' Exs. I & J.)

A. Plaintiff's First Disciplinary Hearing

On April 12, 2005, prison officials served plaintiff with a copy of an RVR for Conspiracy to Murder Peace Officers. Defendant Marshall authored the RVR, and it consisted of a two-page written summary of the charge against plaintiff. The RVR identified the specific act charged: Conspiracy to Murder Peace Officers and specified the names of plaintiff's eight co-conspirators and the names of the five intended victims. The RVR also identified the method of attack planned in the conspiracy and stated that confidential source(s) had identified plaintiff as being involved in the conspiracy. (Defs.' SUDF 10, Defs.' Ex. A.)

Senior Hearing Officer Bolls assigned Officer K. Taylor Thomas as a staff assistant to plaintiff in light of the complexity of issues involved in the disciplinary charge. Officer Thomas was present at the hearing with plaintiff and spoke with him about the nature of the charges against him and the documents prison officials were going to use to adjudicate the charge. Officer Thomas reported to Officer Bolls that plaintiff understood the charges and documents as well as the disciplinary process. (Defs.' SUDF 11, Defs.' Ex. A.)

Senior Hearing Officer Bolls assigned Officer J. Marsh as an investigative employee to assist plaintiff in obtaining witnesses for the disciplinary hearing. Plaintiff identified eighteen witnesses for Officer Marsh to question and compiled a list of questions for each witness. Officer Marsh questioned each of the eighteen witnesses, including inmates and staff, and recorded their responses in a type-written report. Officer Marsh also included with his report a statement by plaintiff, which contained legal arguments as to why prison officials should find him not guilty of the charged disciplinary violation. Officer Marsh provided both plaintiff and Senior Hearing Officer Bolls with a copy of the report. (Defs.' SUDF 12-14, Defs.' Ex. A.)

Plaintiff's first disciplinary hearing took place on May 15, 2005. Plaintiff attended the hearing and pled not guilty. Plaintiff had an opportunity to request live witnesses at the hearing when prison officials initially served him with the RVR, however he did not do so at that time. At the hearing itself, plaintiff requested Officer Ginder, Sergeants Minnic and Simmerson, and Agent Marquez's presence as witnesses. Plaintiff had previously asked Officer Marsh to question these four witnesses and had drafted a series of questions for each of them. Officer Marsh had done so and reported the answers verbatim. Officer Marsh had also provided a written statement with their responses to plaintiff's questions to Senior Hearing Officer Bolls. (Defs.' SUDF 15-18, Defs.' Ex. A.)

Senior Hearing Officer Bolls asked plaintiff what further questions he wanted to ask Officer Ginder, Sergeants Minnic and Simmerson, and Agent Marquez. Plaintiff responded that he wished to question them about their answers in Officer Marsh's investigative employee report. Plaintiff also requested Officer Dittman's presence as a witness because plaintiff had four questions for him. Senior Hearing Officer Bolls denied plaintiff's request for Officer Ginder, Sergeants Minnic and Simmerson, and Agent Marquez's presence because Officer Marsh's investigative employee report contained the statements of these witnesses. However, Senior Hearing Officer Bolls did contact Officer Dittman by telephone and asked him plaintiff's four questions and included Officer Dittman's responses in the final hearing report. (Defs.' SUDF 19-20, Defs.' Ex. A.)

Senior Hearing Officer Bolls found plaintiff guilty of Conspiracy to Murder Peace Officers. He determined that plaintiff had participated with eight other inmates in planning an attack designed to kill correctional officers and that an overt act in furtherance of the conspiracy had been committed when inmate Doyle, a co-conspirator, obtained a weapon to use in the attack. Senior Hearing Officer Bolls drafted a seven-page type-written summary of the disciplinary hearing, including a four and one half-page written explanation of his reasons for finding plaintiff guilty of the disciplinary charge. He assessed plaintiff 180-days loss of credits and recommended the Institution Classification Committee (ICC) assess plaintiff a term in the SHU. Prison officials served plaintiff with a copy of Officer Bolls' written findings and the disposition of the hearing. (Defs.' SUDF 21-24, Defs.' Ex. A.)

On April 12, 2005, when prison officials initially served plaintiff with a copy of the RVR, they also provided him confidential ...

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