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Oshay L. Johnson v. Carroll

June 6, 2012

OSHAY L. JOHNSON, PLAINTIFF,
v.
CARROLL, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS*fn1

I. Introduction

Plaintiff is a state prisoner, incarcerated at the California Medical Facility ("CMF"), in Vacaville, California,*fn2 under the authority of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff proceeds in this civil rights action, filed pursuant to 42 U.S.C. § 1983, with court-appointed counsel. On May 10, 2012, the undersigned heard defendants' oral argument in support of their motion for summary judgment, and plaintiff's opposition thereto. Attorney R. Shanti Brien appeared on behalf of plaintiff; Matthew Ross Wilson appeared on behalf of defendants.

For the reasons that follow, the court recommends that defendants' motion for summary judgment be granted in part, and denied in part, and that this action proceed against defendants Carroll and Sistoon plaintiff's First Amendment Free Exercise and Fourteenth Amendment Equal Protection claims; and against defendants J. Johnson, Fowler, Jackura, San Nicholas and Kesterson on plaintiff's First Amendment retaliation and conspiracy claims. The court recommends that defendants' motion for summary judgment should be granted on plaintiff's Eighth Amendment sexual harassment claim against defendant J. Johnson; on plaintiff's Eighth Amendment excessive force claim against defendant Fowler; and on plaintiff's First Amendment retaliation and conspiracy claims against defendants Cervantes and Sisto.

II. Background

This action proceeds on plaintiff's Amended Complaint ("AC" or "complaint"), filed April 6, 2009. (Dkt. No. 14.) Pursuant to initial screening under 28 U.S.C. § 1915A, the court found that the complaint stated potentially cognizable claims against eight named defendants, but not against five other named defendants. The court granted plaintiff leave to file a further amended complaint in an effort to state cognizable claims against all of the named defendants, or to proceed on his Amended Complaint against the eight identified defendants while consenting to dismissal of the remaining five defendants. (Dkt. No. 17.) Plaintiff chose to proceed on his Amended Complaint, thus agreeing to the dismissal of defendants Medinna, Abella, Fernandez, Ramirez and Fry. (Dkt. Nos. 18, 19.)

Thereafter, the remaining defendants -- Carroll, Sisto, Cervantes, J. Johnson, Fowler, Jackura, San Nicholas and Kesterson -- chose not to file a motion to dismiss, but instead filed an answer to the complaint. (Dkt. No. 21.) After setting a discovery and motion schedule in the case (Dkt. No. 24), subsequently extended pursuant to approval of the parties' stipulations (Dkt. Nos. 29-31), the undersigned, on March 2, 2011, granted plaintiff's motion for appointment of counsel (Dkt. Nos. 25, 26). After the close of discovery, defendants timely filed the instant motion for summary judgment (Dkt. No. 33); plaintiff timely filed an opposition (Dkt. No. 39); defendants filed a reply (Dkt. No. 40).*fn3

The complaint challenges three relatively distinct series of events that allegedly occurred on or about January 14, 2007, February 11, 2007, and April 26, 2007. Given these disparate dates, and the number of defendants, the court initially summarizes plaintiff's factual allegations and legal claims.

Plaintiff states that he is a Muslim who does not eat meat for religious reasons. The complaint alleges that, on January 14, 2007, shortly after plaintiff was transferred to California State Prison-Solano ("CSP-SOL"), Correctional Officer ("CO") Carroll confiscated plaintiff's Religious Diet Card previously issued by Old Folsom State Prison, and that such confiscation was motivated by discrimination against plaintiff's religion. Plaintiff alleges that defendant Sisto, CSP-SOL Warden, ratified Carroll's allegedly discriminatory conduct and, as a result, plaintiff never received a CSP-SOL Religious Diet Card or obtained religious meals while incarcerated at CSP-SOL. Plaintiff alleges that he suffered weight loss, stress, and difficulty sleeping, despite initially attempting to supplement his diet with acceptable food that he purchased from the canteen. On screening, the court found that these allegations stated potentially cognizable claims against defendants Carroll and Sisto, under the First Amendment's Free Exercise Clause, and the Fourteenth Amendment's Equal Protection Clause.

Next, the complaint alleges that, on February 11, 2007, defendant CO J. Johnson*fn4 allegedly became sexually aroused when he strip-searched plaintiff. Plaintiff alleges that when he "made a comment," J. Johnson cuffed plaintiff and took him to "center complex" where, in front of five other officers -- including defendant Sergeant Fowler -- J. Johnson challenged plaintiff to a fight and sought to provoke him, without resulting in any fight. The complaint alleges that defendant Fowler then directed CO Ramirez (not a defendant) to trash and take plaintiff's property, and directed J. Johnson to step out, then Fowler "got in plaintiff's face, called him many disrespectful names . . .[,] physically bumped plaintiff, and he spit in plaintiff's face to provoke him . . . then told plaintiff that he would make sure he goes to the hole (ad-seg), steal his property, and he guaranteed a parole denial." (AC at 4, Exh. B.) Once again, this alleged interaction did not result in a fight. Plaintiff states that he pursued an administrative grievance against J. Johnson and the others, but that defendant Cervantes, CSP-SOL Appeals Coordinator, allegedly acting in retaliation, failed to properly process the grievance. The court found that these alleged facts stated potentially cognizable Eighth Amendment claims against defendants J. Johnson and Fowler, and a potential First Amendment retaliation claim against defendant Cervantes. (AC at 5.)

Next, the complaint challenges plaintiff's placement in administrative segregation ("Ad Seg') on April 26, 2007, and his retention there during the next 17 months. The official rationale was premised on CO Jackura's purported discovery, on April 26, 2007, that plaintiff, when previously housed at CSP-SOL ten years before, assaulted CO San Nicholas; and that San Nicholas, upon learning of plaintiff's renewed presence at CSP-SOL, expressed concerns for his safety, and requested that plaintiff be moved to Ad Seg pending plaintiff's transfer to another institution. The court found that these allegations stated potentially cognizable First Amendment retaliation claims against defendants J. Johnson, Fowler, Cervantes, Jackura, San Nicolas, and Kesterson, based on plaintiff's allegations that these defendants conspired to place plaintiff in Ad Seg in retaliation for plaintiff's filing of the administrative grievance against J. Johnson.

The remainder of plaintiff's allegations concerning the hardships he endured while in Ad Seg are not before the court because they were not administratively exhausted or sound in habeas rather than civil rights, but these allegations include: plaintiff was denied a family visit when his father died; that he was allegedly "consistently harassed," including being convicted of three allegedly false rules violations instigated by defendants; that these findings impaired his parole eligibility; and that plaintiff "lost weight, and was suffering as if being tortured, and suffered from depression, and had to see the psychiatrist." (AC at 6-8.)

Defendants move for summary judgment and/or a finding of qualified immunity on each of plaintiff's claims against each defendant.

III. Legal Standards for Summary Judgment

Summary judgment, in whole or in part (summary adjudication of issues), is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and . . . the movant is entitled to judgment as a matter of law." 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," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), quoting Federal Rule of Civil Procedure 56(c). "[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. 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. 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. at 323. 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(c), is satisfied." Id.

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 exists. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of a 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 a dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586, n.11. The opposing party must demonstrate that the disputed fact is material, i.e., a fact that might affect the outcome of the suit under 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 Anderson, 477 U.S. at 248; T.W. Elec. Serv., 809 F.2d at 631.

In the endeavor to establish the existence of such 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 630. 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 a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. 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. 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 reasonably may be drawn. 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 586 (citation omitted).

On December 6, 2002, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 20.) 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, 411-12 (9th Cir. 1988).

IV. Qualified Immunity

Defendants conclude their motion for summary judgment by asserting that each defendant is entitled to qualified immunity on each of plaintiff's claims.

"Qualified immunity balances two important interests -- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). The objective of the qualified immunity doctrine is to ensure "that 'insubstantial claims' against government officials be resolved prior to discovery and on summary judgment if possible." Anderson v. Creighton, 483 U.S. 635, 640 n.23 (1987), citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). Meeting this objective requires that immunity questions be resolved "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

"'Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct.'" Hunt v. County of Orange, 2012 WL 432297 at *7 (9th Cir., Feb. 13, 2012) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, 'the contours of a right are sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" Anderson, 483 U.S. at 640 (internal alterations omitted).

Although the court was once required to answer these questions in order, the Supreme Court has clarified that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory." Pearson, 555 U.S. at 236. In this regard, if a court decides that plaintiff's allegations do not make out a statutory or constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201 (2001). Likewise, if a court determines that the right at issue was not clearly established at the time of the defendant's alleged misconduct, the court may end further inquiries concerning qualified immunity without determining whether the allegations in fact make out a statutory or constitutional violation. Pearson, 555 U.S. at 236--42.

In resolving the question of qualified immunity, the court views the facts in the light most favorable to the plaintiff. See Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2009).

V. Undisputed and Disputed Facts

The following facts are either undisputed by the parties or, following the court's review of the evidence, are deemed undisputed for purposes of the pending motion. Disputed facts are also noted.

1. CDCR's "Religious Diet Program" is governed by regulations that require an inmate to submit the appropriate application (a CDCR Form 3030 ("Religious Diet Request")) to his institutional chaplain, and obtain written approval thereof; approved applications are to implemented within 30 days after receipt by the chaplain.*fn5

2. Plaintiff, who was born in 1972, has been incarcerated under the authority of CDCR since 1993. After three years incarceration at Pelican Bay State Prison, plaintiff was transferred to CSP-SOL on August 27, 1996, and remained there until January 14, 1998, when he was transferred to CSP-Sacramento, and then to Old Folsom State Prison. Plaintiff remained at Old Folsom State Prison until July 17, 2006, when he was transferred to the California Correctional Center in Susanville, California. Plaintiff was returned to CSP-SOL on January 9, 2007, and remained there until September 10, 2008, when he was transferred to Pleasant Valley State Prison. Plaintiff was transferred to CMF on September 24, 2009. (See Dkt. No. 33-6 at 5-8.)

3. Consistent with his Islamic religious beliefs, plaintiff has not eaten pork since he was seventeen years old, or red meat since September 1992. After his incarceration, plaintiff continued to be a vegetarian in observance of his sincerely-held religious beliefs. From 1992 until 2004, plaintiff observed his religious-based diet by communicating his requests for a vegetarian ("no meat" or "meat substitute") diet*fn6 directly to the inmate serving meals on the serving line.

4. Plaintiff first obtained a Religious Diet Card in 2004, when he was housed at Old Folsom State Prison; he received the card approximately one week after submitting his request. When plaintiff was transferred in 2006 to the California Correctional Center ("CCC"),*fn7 the officials there allowed plaintiff to use his Old Folsom Religious Diet Card, thus allowing plaintiff to observe his dietary restrictions and receive the vegetarian/meat substitute option.

5. When plaintiff was transferred to CSP-SOL on January 9, 2007, his property was searched, but he was permitted to keep his Old Folsom Religious Diet Card. Using that card, plaintiff was able to obtain meat-substitute meals at CSP-SOL until January 14, 2007, when the card was allegedly confiscated by defendant Carroll.

6. Plaintiff never received a Religious Diet Card from CSP-SOL, and never obtained religious meals while incarcerated at CSP-SOL, despite allegedly submitting a Religious Diet Request to the chaplain within a day or two after plaintiff's January 2007 transfer to CSP-SOL.

a. There is currently no evidence of record to support plaintiff's averment that he submitted an application to obtain a CSP-SOL Religious Diet Card; however, defendants do not identify this matter as a disputed fact and concede, both in their briefing and at the hearing, for purposes of the instant motion only, that plaintiff submitted a Religious Diet Request to the CSP-SOL chaplain shortly after plaintiff's transfer to CSP-SOL.

b. Plaintiff avers, under penalty of perjury, that within a day or two after his transfer to CSP-SOL, he completed a Religious Diet Request and submitted it to the CSPSOL Imam. Plaintiff further avers that the Imam then informed him that, while the process normally takes thirty days, there was a four-month back log at CSP-SOL, and instructed plaintiff to continue to use his Old Folsom Religious Diet Card. (Pltf. Depo. 26:16-27:10; Pltf. Decl. ¶ 6.) c. Plaintiff further avers that, when he did not receive a CSP-SOL

Religious Diet Card pursuant to his request, he filed an administrative appeal to obtain one, but never received a response; that defendant Cervantes was the Inmate Appeals Coordinator at the time.*fn8 (Pltf. Depo. 27:11 - 28:16.)

7. Plaintiff alleges in his sworn declaration and deposition testimony that, on January 14, 2007, defendant CO Carroll confiscated plaintiff's Old Folsom Religious Diet Card.

a. Plaintiff avers that on January 14, 2007, defendant Carroll requested to see plaintiff's meal card while he was in line to receive a meat-substitute meal tray; that Carroll told plaintiff he couldn't use his Old Folsom card; that plaintiff responded there was a backlog in getting CSP-SOL meal cards, and that a CSP-SOL sergeant had told him he could use the Old Folsom Religious Diet Card.

b. Plaintiff further avers that, after dinner on January 14, 2007, while plaintiff was crossing the yard with another inmate (Willie Pace), defendant Carroll crossed the yard, cut plaintiff off and told plaintiff to surrender his Old Folsom Religious Diet Card. Plaintiff alleges that Carroll stated that he knew Muslims ate meat, and that plaintiff could "take the meat off the tray" or "just don't eat," or "eat it, because all you Muslims be faking it anyway." (Pltf. Decl. at 2, ¶ 8; Pltf. Depo. 24:15-25:20.) Plaintiff avers that "[t]he conversation went back and forth for about five minutes, [and] officer Carrol (sic) got more disrespectful making several bias comments toward Muslims." (Pltf. Decl. at 2, ¶ 8.) Plaintiff states that he asked to speak with a sergeant, but Carroll refused, and confiscated plaintiff's Old Folsom Religious Diet Card.

c. Plaintiff further avers that inmate Willie Pace was present throughout plaintiff's interaction with defendant Carroll. (Id.) Mr. Pace has filed a sworn declaration that provides in pertinent part (Dkt. No. 39-11):*fn9

On January 14, 2007, just after dinner, I was walking across the yard with [plaintiff]. Correctional officer Carrol (sic) cut across the yard and stopped [plaintiff] and asked him for his meal card. Officer Carrol (sic) told [plaintiff] to "take the meat off the tray" or "just don't eat." Additionally Officer Carrol made several derogatory comments about Muslims, saying that "all you Muslims be faking it anyway," and "other Muslims eat meat." He also said, "You freakin people aint noby (sic) special, most of you are full of shit. And if it were up to me you would have to eat pork and whatever just like everybody else." At the end of the interaction, Officer Carrol (sic) took [plaintiff's] meal card from him.

8. Defendant Carroll avers, in his sworn answers to interrogatories, that he has no recollection of asking plaintiff to see his dietary card on January 14, 2007, and no recollection of confiscating plaintiff's Old Folsom Religious Diet Card; moreover, defendant Carroll has no recollection of any interaction with plaintiff on or about January 14, 2007.

9. Plaintiff avers that he is opposed to receiving meal trays that contain meat, and then removing the meat, because he believes that even the temporary presence of meat contaminates the rest of his food, and thus violates plaintiff's religious beliefs and practices. Because of this belief, after January 14, 2007, plaintiff purchased meals from the canteen rather than receive meat trays; however, he had limited funds for such purchases. On April 26, 2007, plaintiff was moved to Ad Seg, where he received regular meals without meat ever being placed on his tray, but without a meat substitute. Plaintiff avers that he lost weight (he went from 170 to 157 pounds), felt stressed and had difficulty sleeping.

10. Plaintiff states that, on two occasions between January 14, 2007, and April 26, 2007, he attempted to obtain a meat-substitute meal by waiting in the line designated for Religious Diet Card holders, but was turned away; there were approximately 15 or 20 other inmates in line for religious meals. Plaintiff's Old Folsom Religious Diet Card did not include a picture of plaintiff, while the CSP-SOL-issued Religious Diet Cards did include inmate pictures.

Plaintiff testified that, in his 19 years in prison, he knew of no inmate forging a document to obtain a special diet.

11. Plaintiff avers, supported by the record, that he filed and exhausted an administrative appeal challenging defendant Carroll's alleged confiscation of plaintiff's Old Folsom Religious Diet Card, and defendant Carroll's allegedly discriminatory statements to plaintiff, wherein plaintiff alleged violations of his First, Eighth and Fourteenth Amendment rights. (Log No. CSP-S-07-00273; see Dkt. No. 39-7 at 3-10.)

a. The alleged facts set forth in plaintiff's administrative grievance include the further allegations that Carroll "actually interfered with another officer who had the card and was dealing with the situation;" that Carroll "walked up-on (sic) the conversation, asked to see the card, then took over the conversation and situation displaying a discriminatory disposition toward Islam thereforth (sic) his actions [were] capricious and vindictive and [were] done for no other purpose but to impinge upon appellant's practise (sic) of his religion and spiritual belief." (Dkt. No. 39-7 at 5.) Pursuant to this administrative grievance, plaintiff sought the freedom to practice his religious belief that he should eat no meat, while still obtaining the daily amount of calories recommended by federal nutritional standards; that plaintiff be given a pass permitting him to obtain meat-substitute trays pending receipt of his new Religious Diet Card; that plaintiff be provided with a copy of the rule allegedly supporting Carroll's confiscation of plaintiff's Old Folsom Religious Diet Card; that the appeal be construed as a citizen's complaint against Carroll; and that there be no retaliation or reprisal against plaintiff for filing the grievance. (Id. at 3, 5.)

b. This appeal was partially granted at the First and Second Level

Reviews. Pursuant to the First Level Review, plaintiff was interviewed by Correctional Lt. Parks, who reportedly provided plaintiff with a CDCR 3030 Religious Diet Request form and explained the process for submitting the application. Plaintiff was informed that his card was confiscated because "there is no standard card used by the Department . . . and therefore staff are not able to verify the validity of each card that [is] issued from other institutions . . . ." (Dkt. No. 39-7 at 6.) At the Second Level Review, issued on March 8, 2007, by defendant Sisto, plaintiff was again informed of the procedure for obtaining a Religious Diet Card, and informed that "Some Muslims eat meat. If you have not received your dietary card, you can eat the meal that is issued to you and eliminate the meat;" and ruled that the appeal would not be logged as a citizens' complaint because "it was properly characterized as [a] religious program issue . . . . " (Id. at 8.)

c. At the Director's Level Review, issued on July 2, 2007, CSP-SOL Appeals Coordinator Grannis denied the appeal on the following grounds (id. at 9 (brackets in original)):

The information presented supports the contention that the appellant is being provided an avenue to receive an accommodation in support of his dietary requirements. The appellant has not provided any evidence to demonstrate the he has followed directions and asked for a "no meat" dietary card at SOL by submitting the aforementioned request [CDCR Form 3030]. The appellant is not required to abandon the practice of his faith as he asserts, he is just being directed to follow the established protocol. The genuiness (sic) of the appellant's complaint is questioned, as it does not appear that the appellant has made any attempt whatsoever to legitimately obtain a "no meat" dietary card at SOL. Once again, the appellant is directed to complete a CDCR Form 3030, Religious Diet Request form[,] and turn it into the chaplain who will provide the appellant the accommodation he seeks if he finds sincere belief in the faith that does not eat meat. [The appeals examiner has submitted an internal request for the Department to consider allowing a religious determination made at one institution to be accepted at subsequent institutions absent a contraindication; however, this does not excuse the appellant from following the directions disseminated to him at this time.]

12. In answers to interrogatories, defendant Warden Sisto made the following sworn statements:

a. During the relevant period, an inmate at CSP-SOL "would generally not have been able to use a religious diet card issued at a different institution because the [CDCR] did not have a standard religious diet card. It was impractical to verify the authenticity of a card issued at a different institution and there were frequent attempts by inmates to forge and otherwise tamper with religious diet cards." (Sisto's Answ. to Amd. Interr. No. 2.)

b. During the relevant period, "it was the standard practice to confiscate an inmate's religious diet card issued at another institution when he arrived at [CSP-SOL]. The purpose for this was that there was no standard card issued by every institution. It was therefore impossible to confirm the authenticity of a religious diet card issued at another institution. Inmates without a genuine need for a religious diet may attempt to forge or otherwise tamper with religious diet cards from other institutions." (Sisto's Answ. to Amd. Interr. No. 3.)

c. During the relevant period, "inmates arriving [at CSP-SOL] from other institutions were not issued temporary cards concerning religious diets. . . . The department policies did not provide for the provision of temporary cards while the inmate completed the process for obtaining a religious diet card. (Sisto's Answ. to Amd. Interr. No. 4.)

13. Sergeant Fowler, a defendant in this action based on other allegations, made the following pertinent statements in his October 27, 2011 deposition testimony. (See Dkt. No. 33-5 at 71-78; Dkt. No. 39-9 at 1-10.)

a. Defendant Fowler testified that Religious Diet Cards were confiscated at CSP-SOL only if they were forged; he was not aware of any cards being confiscated because issued by another CDCR facility. In response to questioning by plaintiff's counsel, Fowler testified (Fowler Depo. 17:5-18):

Q. Do you know if inmates use cards from other facilities other at CSP Solano?

A. I suppose a card can follow them from one facility to the next if they get a bed move, sure.

Q. And if you were made aware that an inmate had been using a card from another facility, what would you do?

A. If it's a valid card, they would continue to use it. It doesn't change just because they go from one facility to the next. It's a prison program.

Q. So you're not aware of anyone having a meal card being confiscated because it was issued at another facility?

A. No. I would never do that, and I don't know if anybody has. If they're confiscated, it's because it's a forgery.

b. Defendant Fowler testified that the use of forged Religious Diet Cards is "[v]ery common," but that Fowler had confiscated only five or six cards in his ten years working for CDCR, and estimated that the last time he or another officer confiscated a forged diet card was five years before. (Fowler Depo. 17:19-24; 18:17-23.)

c. Defendant Fowler testified that "[t]he chaplain and the supervising cook" are in charge of the Religious Diet Card program; that the officer and cook assess the validity of cards; and that, if a card wasn't valid, "the officer who supervises the steam line and/or the cook would just confiscate it." (Id. at 17:10-24.)

d. Defendant Fowler testified that there is no training for correctional officers relative to the Religious Diet Card program; the only training is for "[t]he inmates that participate in the program and the cooks and the chaplains that give it . . . ." (Id. at 17:2-4; see also 15:24-16:1; 16:25-17:1.)

e. Defendant Fowler testified that he never heard a correctional officer say, or discerned a sentiment among officers that, Religious Diet Cards "are just a way for inmates to get this better food[.]" (Id. at 18:10-16.)

14. After his transfer to Pleasant Valley State Prison ("PVSP"), on September 10, 2008, plaintiff received a Religious Diet Card within an undisclosed period of time. Plaintiff testified at his deposition, on August 30, 2011, that his PVSP Religious Diet Card was thereafter honored at CMF, where plaintiff was transferred on September 24, 2009, and continues to be honored at CMF.

15. Defendant J. Johnson is a correctional officer at CSP-SOL, who has been employed with CDCR since 2006. On February 11, 2007, in the "strip-out" room adjacent to the visiting room, J. Johnson conducted an unclothed body search of plaintiff. No other inmates were present during J. Johnson's search of plaintiff, but one other staff member was present, identified by plaintiff as Office Price. (Pltf. Depo. 39:3, 12.)

16. Under departmental policy, inmates leaving the prison's visiting area are subject to unclothed body searches. The unclothed body search includes, among other things, asking the inmate to turn around, squat, pull his buttocks apart, and cough. The use of a flashlight is permitted during these searches to aid officers in determining whether an inmate may have hidden contraband within a body crevice. It is a concern of custody staff that inmates may bring contraband into the prison after meeting with friends and family.

17. The facts of the search are disputed. Plaintiff makes the following allegations in his complaint (Dkt. No. 14 at 4):

On 2-11-07 plaintiff being strip-searched leaving the visiting room by a CO J. Johnson, was ordered to perform one part three times, i.e. "the spreading the butt-cheecks (sic) and coughing." CO J. Johnson[,] removing his flashlight on the third time said, "[W]hat we are going to do it, you['re] going to turn around and show me your ass." CO J. Johnson became sexually aroused, having a buldge (sic) in his pants, and plaintiff made a comment, and CO J. Johnson cuffed [me] and took [me] to center complex. There CO J. Johnson challenged plaintiff to a fight with five other officers in the room. . . .*fn10

18. Defendant J. Johnson testified at his deposition that, due to plaintiff's refusal to comply with the routine procedures of the search, defendant had to issue several commands to plaintiff to comply. J. Johnson testified that plaintiff became very animated, and became verbally volatile and abusive toward defendant during the final part of the search, calling defendant names and appearing angry. J. Johnson testified that he had to ask plaintiff "to squat and cough multiple times" because plaintiff would not do so when asked. J. Johnson has no recollection of shining a flashlight on plaintiff's buttocks during this search. Defendant J. Johnson testified that he was not sexually aroused during his search of plaintiff.

(J. Johnson Depo. 37:1-40:25; J. Johnson Answ. to Amd. Interr. Nos. 3-5.)

19. What transpired next is also disputed. J. Johnson testified that plaintiff refused orders to leave the search area, so J. Johnson placed plaintiff in handcuffs and escorted him to the Facility 3 program office where, states defendant, he "counseled the plaintiff on the need to comply with verbal orders during the unclothed body search so that the plaintiff could be processed through quickly. [I] then returned to [my] post." (J. Johnson Answ. to Amd. Interr. No. 8.) Defendant avers that, thereafter, "he has no recollection of speaking with anyone about his interactions with the plaintiff on or about February 11, 2007, at any time prior to the initiation of this lawsuit." (Id., Interr. No. 9.)

20. Plaintiff testified that, after defendant J. Johnson handcuffed plaintiff, he placed plaintiff in a holding cage and removed the handcuffs. Plaintiff stated that J. Johnson returned fifteen minutes later and escorted plaintiff, unhandcuffed, to the Facility 3 Program Office ("center complex"). Plaintiff testified that in the conference room were COs Ramirez, Abella and Medina, Sergeants Fowler and Fernandez, an unnamed Sergeant, and defendant J. Johnson. Plaintiff testified that J. Johnson took off his glasses, put on black gloves, and asked plaintiff, "What [do you] want to do, what's up, [you] got a big mouth, and so forth," as he stepped in front of plaintiff with his fists balled. Plaintiff states that he and J. Johnson exchanged several comments, that J. Johnson called plaintiff a fool and asked him what he was going to do, that plaintiff called J. Johnson a fool but said, "I'm not going to do nothing." "After about five or ten minutes of this Sgt. Fowler intervened and told officer Ramirez to go search my property and told him, "you know what to do," and told J. Johnson to step out. (Pltf. Depo. 43:22- 48:11; Pltf. Decl. ¶¶ 15-18.)

21. Although plaintiff testified that defendant J. Johnson made threatening gestures toward plaintiff, and allegedly sought to provoke him into a fight, plaintiff stated that J. Johnson made no physical contact with plaintiff. (Pltf. Depo. 47:15-16.)

22. Defendant Fowler is a correctional sergeant employed at CSP-SOL. Defendant Fowler avers under penalty of perjury that he has no recollection of being in the Facility 3 Program Office on February 11, 2007, when plaintiff was allegedly brought there by defendant J. Johnson. Defendant Fowler states that he has no recollection of any of the events that plaintiff alleges took place that day. (See generally Fowler Ans. to Amd. Interr. Nos. 2 -10.)

23. Pursuant to his deposition testimony and sworn declaration, plaintiff alleges that, after J. Johnson left the conference room, defendant Fowler rushed up on plaintiff, while officers ...


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