The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner, currently incarcerated at the California Correctional Institution ("CCI"), in Tehachapi, California. Plaintiff proceeds in this civil rights action with court-appointed counsel. Pursuant to the consent of the parties, this action proceeds before the undersigned magistrate judge for all purposes. (Dkt. No. 152.) See 28 U.S.C. § 636(c); Local Rule 305(a).
Each of the three defendants filed a separate motion for summary judgment and/or summary adjudication, although the motions address substantially the same issues. (Dkt. Nos. 197, 200, 201.) Plaintiff filed an opposition to each motion (Dkt. Nos. 212, 213, 214), and each defendant filed a reply (Dkt. Nos. 215-19). In addition, defendant Bess filed statements of non-opposition to the motions filed by defendants Quist and Pliler (Dkt. Nos. 208, 209); and defendant Pliler filed a statement of non-opposition to the motions filed by defendants Quist and Bess (Dkt. Nos. 199, 210).
The motions were heard before the undersigned on November 17, 2011. Plaintiff was represented by attorney Scott Handleman; defendant Samuel Bess was represented by Jonathan Paul; defendant Michael Quist was represented by Kevin J. DeHoff; and defendant Cheryl K. Pliler was represented by Michelle Angus.
For the reasons that follow, the court grants defendant Pliler's motion for summary judgment in its entirety, and dismisses defendant Pliler from this action. In addition, the court: (1) grants the motions of defendants Bess and Quist for summary judgment on plaintiff's Eighth Amendment claim and state law malicious prosecution claim; (2) denies defendants' motions for summary judgment on plaintiff's federal claims premised on conspiracy, equal protection, fabrication of evidence, and malicious prosecution; and (3) denies defendants' qualified immunity defenses.
This action proceeds on plaintiff's Amended Complaint ("AC" or "complaint"), filed in pro se on March 12, 2002. (Dkt. No. 7.) The Amended Complaint alleges that defendants Bess and Quist, correctional officers at California State Prison-Sacramento ("CSPSAC"), where plaintiff was then incarcerated, conspired to, and did in fact, plant heroin on plaintiff on October 11, 1998, in retaliation against plaintiff for refusing to sell drugs on behalf of defendant Bess. Following a search of plaintiff by defendant Quist, plaintiff was subjected to disciplinary charges and criminal prosecution, pursuant to which defendants Bess and Quist allegedly made false statements. The complaint alleges that defendant Pliler, then CSP-SAC Warden, was aware of the allegedly fraudulent bases for these matters, but failed to exonerate plaintiff or discipline defendants. At plaintiff's criminal trial in March 2001, another inmate testified that he had sold drugs and worked as a "snitch" for defendant Bess, and that he had planted the heroin on plaintiff at the direction of Bess. (AC at ¶ 22.)*fn1 Plaintiff was acquitted; had plaintiff been convicted, it would have been his "third strike," and may have resulted in a life sentence.
The Amended Complaint asserts three broad causes of action: (1) Eighth Amendment right to be free from cruel and unusual punishment (AC at ¶ 38); (2) Fourteenth Amendment right to "Federal Due Process/Equal Protection (Retaliation)" (id. at ¶ 40); and (3) state law right to be free from malicious prosecution (id. at ¶ 42).
On March 10, 2003, defendants filed a motion to dismiss this action, based on the argument that plaintiff's claims were time-barred. The motion was denied on January 22, 2004. (Dkt. Nos. 36, 34.)
On July 29, 2005, defendants filed a motion for summary judgment. By findings and recommendations filed March 8, 2006, a magistrate judge previously assigned this case recommended that defendants' motion be granted, based on the finding that defendants were entitled to qualified immunity on plaintiff's due process claim. The magistrate judge found that plaintiff had failed to state an Eighth Amendment claim, or a state law claim, and did not reach plaintiff's equal protection claim. (Dkt. No. 104.) On April 10, 2006, the district judge adopted these findings and recommendations. (Dkt. No. 107.)
Plaintiff appealed. The Ninth Circuit Court of Appeals appointed counsel for plaintiff on August 1, 2007, and the matter was heard on March 14, 2008. On April 28, 2008, the Court of Appeals filed a memorandum decision, which provides in full:
Appellant Rex Chappell (Chappell) appeals the district court's grant of summary judgment based on qualified immunity on Chappell's due process claim, the district court's dismissal of Chappell's equal protection claim without comment, and the district court's refusal to construe Chappell's state law allegations as a claim for malicious prosecution.
Pursuant to the agreement of the parties at oral argument, Chappell's due process claim and state law allegations stating a claim for malicious prosecution are remanded to the district court for consideration on the merits.
We decline to address Chappell's equal protection claim on appeal, so as to allow the district court the opportunity to address it in the first instance on remand.
(See Memorandum Decision (Case No. 06-15805); Dkt. No. 119 at 1-2.) Mandate was issued on September 4, 2009. (Dkt. No. 120.)
Following remand to this court, defendants filed a "joint response" wherein they chose not to separately address plaintiff's equal protection claim, but instead deferred briefing their challenge until such time as they pursued a dispositive motion addressing all of plaintiff's claims. (Dkt. No. 125.) On January 6, 2010, the court appointed counsel to represent plaintiff, and set a further status hearing. (Dkt. Nos. 126, 128.)
This action was assigned to the undersigned on February 9, 2010 (Dkt. No. 129), and assigned for all purposes on August 2, 2010 (Dkt. No. 152). Pursuant to a status conference held March 25, 2010, and subsequent requests and stipulations of the parties, discovery was reopened until February 17, 2011, with the close of expert discovery on August 29, 2011. (Dkt. No. 162 at 4.) On May 6, 2011, this court granted the request of plaintiff's former co-counsel to withdraw their representation of plaintiff. (Dkt. No. 189.) Current counsel was appointed to represent plaintiff on May 16, 2011. (Dkt. No. 190.) After reviewing each of the parties' status reports filed in June and July 2011, the court retained the dispositive motion deadline of October 30, 2011. (Dkt. No. 196.) Defendants thereafter filed the instant motions for summary judgment.
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 may reasonably 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).
IV. Evidentiary Disputes Relative to Dixon Trial Testimony
On March 8, 2001, inmate Duane M. Dixon*fn2 testified on behalf of plaintiff at plaintiff's criminal trial, on the charges stemming from the October 11, 1998 incident. Plaintiff has submitted, as an exhibit in support of his opposition to each pending motion, a transcript of Dixon's trial testimony in People v. Chappell, Sacramento County Superior Court Case No. 98FL10549. (See Oppositions, Dkt. Nos. 212-5 (Exh. B); 213-5 (Exh. B); 214-5 (Exh. B).)
Defendant Bess objects to the introduction of Dixon's former testimony in People v. Chappell on the ground that there is no indication Dixon is currently unavailable to testify, and because defendant Bess had no opportunity to examine Dixon in the trial of People v. Chappell. (Dkt. No. 215 at 3, citing Fed. R. Evid 804(a), 804(b)(1).)
Federal Rule of Evidence 804 provides an exception to the hearsay rule (set forth in Fed. R. Evid. 803), to permit the introduction of a witness' former testimony for the truth of the matter asserted, provided the witness is currently unavailable, Fed. R. Evid. 804(a), and "the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination," Fed. R. Evid. 804(b)(1).
Bess' contention that "there is no indication that Dixon is currently unavailable" (Dkt. No. 215 at 3), appears to be accurate. Bess' further contention that he [Bess] "had no opportunity or similar motive to examine Dixon in the trial of People v. Chappell" (id.), also appears to be technically correct, because the trial against plaintiff was prosecuted by the Sacramento County District Attorney's Office ("DA"). While the DA was necessarily tasked with examining Dixon as to his allegations against both Bess and Quist, the "similar motive" prong of Rule 804(b)(1) requires a careful, case-specific analysis, see United States v. Salerno, 505 U.S. 317, 325 (1992), not briefed by the parties. The court need not, however, determine whether Dixon's testimony meets the criteria of Rule 804. For present purposes, it is enough that plaintiff has demonstrated that Dixon's testimony was not only contrary to the factual recitations of defendants Bess and Quist, but sufficiently credible to the jury to exonerate plaintiff of criminal charges based on the same conduct at issue here. The court does not rely on Dixon's testimony for its ultimate truth but, rather, to demonstrate that there are material factual disputes concerning the central issues in this case. See U.S. v. Cantu, 876 F.2d 1134, 1137 (5th Cir. 1989) (reversing trial court's exclusion of witness statements admitted solely for the purpose of demonstrating that the statements were made, not for their truth, explaining that "[t]he statements were not offered as an assertion of a fact but, rather, as the fact of an assertion"); U.S. v. Chavis, 772 F.2d 100, 105 (5th Cir. 1985) (affirming admission of records "to show that defendants were notified of the complaints," not for the truth of the statements contained in the complaints); cf. Fed. R. Evid. 801(d) (prior statements of witness and party-opponents not generally hearsay).
Accordingly, the court overrules defendant Bess' objection to the admission of Dixon's trial testimony in support of plaintiff's opposition to the pending motions. The fact of Dixon's testimony, in conjunction with the fact of plaintiff's acquittal on the criminal charges at the heart of this case, as well as plaintiff's admissible deposition testimony, support plaintiff's assertion that there remain material factual disputes precluding summary judgment on plaintiff's federal constitutional claims.
The following facts are either undisputed by the parties or, following the court's review of the evidence, have been deemed undisputed for purposes of the pending motions.
1. On October 11, 1998, plaintiff Rex Chappell was an inmate incarcerated at CSP-SAC, in Facility B, Building 1 ("Unit B-1").
2. On October 11, 1998, plaintiff had a cellmate named Keith ("Kiki") Williams.
3. Through October 1998, defendant correctional officers Quist and Bess worked at CSPSAC's Facility B. Quist was assigned to Unit B-1 as a floor officer; Bess was assigned to Facility B as a yard officer.
4. At all relevant times, defendant Pliler was the Warden of CSP-SAC.
5. In 1998, inmate Duane Dixon was housed at CSP-SAC.
6. On October 11, 1998, plaintiff was searched by defendant Quist.
7. Quist thereafter completed a Rules Violation Report (Form CDC-115) ("RVR," "CDC 115," or "disciplinary charge"), Log No. B-98-10-70 (handwritten on October 11, 1998, typed and signed on October 13, 1998), in which Quist alleged that he found a bindle containing tar heroin in plaintiff's sock, in a quantity sufficient for trafficking; plaintiff was charged with a violation of California Code of Regulations ("CCR"), title 15, section 3016 (possession of controlled substance).
8. Also on October 11, 1998, Lieutenant Hahn completed an Incident Report (Form CDC-837-A), Log No. SAC-FAB-98-10-0503, noting in pertinent part that the amount of heroin allegedly found in the bindle was greater than that required for personal use, indicating that plaintiff "meets the criteria as a distributor rather than a consumer." (Pliler Depo., Exh. 3.)
9. On October 26, 1998, and November 4, 1998, Quist filed supplemental reports and added into evidence an eyedropper bottle containing heroin residue, that Quist had allegedly obtained from plaintiff pursuant to the October 11, 1998 search, but inadvertently taken home until reminded of the bottle by plaintiff.
10. On October 17, 1998, plaintiff was placed in administrative segregation, where he remained through his acquittal on related criminal charges in March 2001.
11. In November 1998, plaintiff wrote three letters to Warden Pliler in which he asserted that he had been "set up."
12. On December 4, 1998, the DA accepted this matter for prosecution; a criminal complaint was filed against plaintiff on December 10, 1998, in Sacramento Superior Court Case No. 98F10549, alleging violation of California Penal Code section 4573.6 (unauthorized possession of controlled substance in a prison).
13. On April 22, 1999, plaintiff was found guilty of the disciplinary charge of violating Section 3016; however, because the hearing had not been held within the required thirty days, plaintiff was assessed zero loss of credits.
14. On March 19, 2001, plaintiff was acquitted by a jury of the criminal charge.
15. On April 24, 2001, and June 7, 2001, plaintiff filed two separate administrative grievances challenging the alleged misconduct of defendants Quist and Bess, and the alleged failure of defendant Pliler to adequately respond. Both grievances, designated Log No. SAC-B-01-00933,*fn3 and Log No. SAC-S-01-01210,*fn4 respectively, were administratively exhausted.
16. On October 24, 2001, plaintiff filed the instant action, alleging that defendants Quist and Bess, with the help of inmate Dixon, had planted the heroin on plaintiff, and made false statements in support of the disciplinary and criminal charges filed against plaintiff; plaintiff also alleges that defendant Pliler failed to prevent this alleged misconduct or to later discipline defendants Quist and Bess, and failed to exonerate plaintiff.
Nearly all of the circumstances concerning the relevant events of October 11, 1998, are disputed. Because defendants' separate motions for summary judgment, and plaintiff's responses thereto, so conflate the disputed and purportedly undisputed facts, the court has reviewed the sworn testimony of each party, as well as the trial testimony of inmate Dixon, to discern the parties' significant factual disputes. A summary of each of these individual's testimony is provided below.
A. Plaintiff's May 26, 2004 and September 23, 2010 Deposition Testimony*fn5 Plaintiff concedes that he is a heroin user. He testified that there was heroin residue in the subject eyedropper bottle because he had previously used it to ingest heroin (Chappell 2004 Depo. at 51), including on the morning of the search (id. at 143-44.) However, plaintiff testified that he never sells heroin. (Id. at 35.) Plaintiff testified that, approximately May 1998, Bess asked plaintiff to sell drugs on his behalf, but plaintiff refused. (Chappell 2010 Depo. at 74, 75, 77.)
Plaintiff testified that, on the morning of October 11, 1998, when he was on the yard, at about 9:45 a.m., just before yard recall, another inmate, Duane Dixon, gave plaintiff an envelope. (Chappell 2004 Depo. at 19-20.) Plaintiff testified that Dixon told him the envelope contained legal work from another inmate, "Special K" Washington. (Id. at 15.) Plaintiff testified that, earlier that morning, he had talked with Washington about helping him in a habeas corpus action, and the envelope that Dixon handed plaintiff had Washington's name on it. (Id. at 14-5). Plaintiff stated that he accepted the envelope from Dixon in the belief that it contained Washington's legal paperwork. (Id. at 23, 24.) Plaintiff testified that, after receiving the envelope from Dixon, he went from the yard to an indoor day room, where he was paged by prison staff. Plaintiff stated that he walked over to the control booth, where he was informed that he had an appointment at the medical clinic. (Id. at 22.) Plaintiff testified that, because he then had a broken leg, he believed that the purpose of the appointment may be to remove his cast. (Id. at 14, 24). Plaintiff stated that, as he approached the clinic, he saw Dixon speaking with defendant Quist. (Id. at 22, 23.)
Plaintiff testified that, when he entered the clinic, defendant Quist ordered plaintiff to enter a holding room and to strip; plaintiff complied. (Id. at 24.) Plaintiff testified that Quist and Bess then conducted a search of plaintiff. (Id. at 26.) Plaintiff stated, that "the first thing they took" was the envelope that Dixon had given to plaintiff. (Id. at 27.) Plaintiff testified that Bess picked up the envelope and searched it, told Quist, "I found it," then gave the envelope to Quist. (Id. at 30, 53.) Plaintiff testified that, in the course of the search, plaintiff gave Quist an eye dropper bottle that plaintiff had been carrying in his pocket, and which contained heroin residue; Quist reportedly ...