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Joseph Howard Sherman, Cdcr #H-41665 v. J. Aguilar; E. Delgado; D.R. Gonzales

April 2, 2012

JOSEPH HOWARD SHERMAN, CDCR #H-41665, PLAINTIFF,
v.
J. AGUILAR; E. DELGADO; D.R. GONZALES,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Irma E. Gonzalez United States District Judge

ORDER: (1) DENYING PLAINTIFF'S MOTION TO STRIKE; AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56(c) (ECF Nos. 55, 62)

I.

PROCEDURAL BACKGROUND

Joseph Howard Sherman ("Plaintiff"), a state prisoner incarcerated at Calipatria State Prison ("CAL"), is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On October 15, 2010, the Court issued an Order dismissing all claims and Defendants from this action with the exception of the retaliation claims against Defendants Aguilar, Gonzales and Delgado. (See Oct. 15, 2010 Order at 7-9.) Defendants Aguilar, Gonzales and Delgado filed their Answer on March 17, 2011. (See Defs.' Answer, ECF No. 27.)

Defendants have now filed a Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 (ECF No. 55). The Court notified Plaintiff of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) (ECF No. 57).*fn1 On February 16, 2012, Plaintiff filed his response in Opposition to Defendants' Motion (ECF No. 59), along with a "Motion to Strike Defendants' Declarations in Support of Motion for Summary Judgment" (ECF No. 62). On March 5, 2012, Defendants filed a Reply to both Plaintiff's Opposition, as well as his Motion to Strike (ECF Nos. 64, 65).

While this case was randomly referred to the Honorable Louisa S. Porter pursuant to 28 U.S.C. § 636(b)(1)(B) for disposition, the Court has determined that a Report and Recommendation regarding the disposition of the pending Motion is not necessary. See S.D. CAL. CIVLR 72.3(a). The Court has further found oral argument unnecessary pursuant to S.D. CAL. CIVLR 7.1.d., and for the reasons set forth below, DENIES Plaintiff's Motion to Strike Defendants' Declarations and GRANTS IN PART AND DENIES IN PART Defendants' Motion for Summary Judgment pursuant to FED.R.CIV.P. 56(c).

II.

FACTUAL BACKGROUND

Plaintiff has been incarcerated with a sentence of life without the possibility of parole since 1992. (Pl.'s Decl. in Supp. of Opp'n at ¶ 2.) Plaintiff has been housed at Calipatria State Prison ("CAL") on two separate occasions. (Id. at ¶ 3.) In Plaintiff's first placement at CAL in 2001, Plaintiff was housed in the sensitive needs yard at which time he came into contact with Defendant Aguilar. (See Pl.'s Third Amended Complaint ("TAC") at 9.) Plaintiff claims that in 2002, it became known that Defendant Aguilar was "targeting prisoners with disabilities for harassment treatment." (Id.) Plaintiff claims that he assisted the disabled prisoners with a grievance that resulted in the Warden removing Defendant Aguilar from that yard for a six month period. (Id. at 9-10.)

However, when a new Warden came to CAL, Plaintiff claims that Defendant Aguilar "returned to his old ways." (Id.) In 2007, Plaintiff alleges that he filed "injunctions" and "citizens's complaints," along with his cellmate, against Defendant Aguilar in Imperial County Superior Court. (Id. at 10-11.) In 2007, Plaintiff filed a "citizen's complaint" against both Aguilar and Delgado for allegedly agreeing to remove Plaintiff's cellmate from a prison job and replacing him with a favored inmate. (Id. at 11.) Plaintiff then met with Defendant Gonzales to be interviewed with regard to the citizen's complaint. (Id.) Plaintiff claims Defendant Gonzales permitted Defendant Delgado to be present during one of the interviews. (Id.)

On January 11, 2008, Defendant Delgado is alleged to have picked Plaintiff out of twenty (20) prisoners to be searched and confiscated property from Plaintiff. (Id.) Following this incident, Defendant Delgado is also alleged to have filed a false Serious Rules Violation report against Plaintiff in retaliation for Plaintiff filing a citizen's complaint. (Id.)

On January 14, 2008, Plaintiff reported to his job assignment where he was allegedly told by his supervisor that Defendants Delgado and Gonzales had asked the supervisor to not testify on Plaintiff's behalf at his Serious Rules Violation disciplinary hearing. (Id. at 12.) Plaintiff claims Delgado and Gonzales told the supervisor that if Plaintiff "dropped" his grievances and citizen's complaint, they would dismiss the charges against Plaintiff. (Id.) Plaintiff alleges he was told that he was not permitted to work and he was confined to quarters by the order of Defendant Delgado. (Id.)

On June 19, 2008, Plaintiff's cell was searched by Correctional Officer Sabala*fn2 . Sabala and another unnamed correctional officer placed Plaintiff's property into eight (8) separate bags, placed his name and CDCR number on each bag and put the "bags into a cart for transport." (Id.) Plaintiff alleges Defendant Aguilar "with or without" Defendant Delgado's assistance, saw Plaintiff's names on the bags, stopped the cart and removed Plaintiff's property "in retaliation for grievances and lawsuits." (Id.) A few days later, on June 26, 2008, Plaintiff claims he encountered Defendant Aguilar and Delgado. (Id.) He claims Defendant Aguilar stated "that's what happens to inmates who file paperwork on us" and next time he would destroy all of Plaintiff's property. (Id. at 14.)

III.

DEFENDANTS'MOTION FOR SUMMARY JUDGMENT

A. FED.R.CIV.P. 56 Standard of Review

Summary judgment is proper where there is no genuine issue of material fact in dispute and the moving party has shown it is entitled to judgment as a matter of law. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing FED.R.CIV.P. 56(c)).

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," ...


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