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Shimaine Ward v. Brown

August 28, 2012

SHIMAINE WARD, PLAINTIFF,
v.
BROWN, ET AL., DEFENDANTS,



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

ORDER

I. Introduction

Plaintiff, proceeding through counsel, seeks relief pursuant to 42 U.S.C. § 1983. All parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Plaintiff claims that defendants' refusal to correct his release date from state prison caused him to be over-incarcerated in federal prison, in violation of his constitutional rights, and California law. Pending before the court is defendants' motion for summary judgment. Plaintiff filed an opposition, and defendants filed a reply. After supplemental briefing, oral argument was heard on August 2, 2012, before the undersigned. As set forth below, this court finds that defendants' motion for summary judgment is granted in part and denied in part.

II. Plaintiff's Allegations and Background

On April 23, 1998, plaintiff pled guilty to robbery in Contra Costa County. [(Dkt. No. 1 at 6.)] That same day, he was sentenced to an aggregate term of nine years in state prison: a five year term on count one, four consecutive one year sentences on counts two through five, and concurrent three year terms on the remaining nine counts. [Plaintiff] received pre-sentence credits of 203 actual days and 100 days conduct credits for a total of 303 days pre-sentence credit. At the time, robbery was considered a serious felony under California Penal Code § 1192.7, but not a violent felony under California Penal Code § 667.5; therefore, he was not subject to the 15% limitation on credits. [Plaintiff] was sent to the California Department of Corrections and Rehabilitation ("CDCR") to serve his sentence. [Dkt. No. 1 at 6.)]

On February 1, 1999, [plaintiff] pled guilty to a federal grand jury indictment, charging one count of bank robbery and one count of use of a firearm. (Id.) [Plaintiff] was sentenced to an aggregate term of 97 months; the sentence imposed on count one, 37 months, was to run concurrent to the California state sentence [plaintiff] was already serving, and the sentence imposed on count two, 60 months, was to run consecutive to the state term. Pursuant to 18 U.S.C. § 3621(b)(4), the federal district court directed [plaintiff] to be imprisoned in a California penal institution. (Dkt. No. 1 at 6.)

[Plaintiff] was returned to the physical custody of the CDCR to serve his sentence. (Id.) The Federal Bureau of Prisons ("BOP") recognized that the CDCR had primary custodial authority over [plaintiff]. (Id.) The projected release date as of this custodial transfer was June 18, 2002. (Id.) At the conclusion of the CDCR commitment, [plaintiff] was to be transferred to the custody of the BOP to begin serving his remaining sentence: a 60 month consecutive term imposed for use of a firearm. (Id.)

On June 28, 2000, [plaintiff] pled guilty to two counts of robbery in Santa Clara County pursuant to a negotiated disposition that [plaintiff] would not serve any additional custody time than that previously imposed on the prior state and federal convictions. [(Dkt. No. 1 at 6-7.)] However, after the imposition of this sentence, the CDCR erroneously reset [plaintiff's] release date from June of 2002 to July 27, 2006. [(Id., at 7.)] [Plaintiff] alleges that absent this error, [plaintiff] would have concluded his state term and begun serving his federal sentence in June of 2002. (Id.)

On July 11, 2002, [plaintiff] filed a petition for a writ of habeas corpus in the Santa Clara Superior Court. (Id.) In that petition, [plaintiff] asserted that he had been assured that if he pled guilty he would be sentenced concurrent to the Contra Costa case and would serve no additional time in prison. (Id.) On May 15, 2003,*fn1 the Contra Costa Superior Court issued a final order directing the CDCR deliver [plaintiff] to the custody of the Attorney General of the United States or his authorized representative for the purpose of commencing service of the 60 month consecutive sentence imposed in the federal action. (Id.) On May 16, 2003, a deputy clerk of the Santa Clara Superior Court served Jack Marshall, acting warden of North Kern State Prison with a copy of the May 15, 2003 order. (Id.) The order was received by the warden's office on June 2, 2003. (Id.) The CDCR apparently attempted to comply with this order, but the federal government refused to take custody of [plaintiff] at that time. (Id.)

In July 2006, federal marshals took custody of [plaintiff]. [Plaintiff] then initiated federal habeas proceedings to receive credit against his federal sentence for the additional time he spent incarcerated in state prison. (Id.) On May 23, 2008, the Santa Clara Superior Court issued an order vacating [plaintiff's] seven year sentence imposed on July 14, 2000 and re-sentenced [plaintiff] to a term of two years nunc pro tunc to July 14, 2000, which was to run concurrent to any state or federal sentence. (Id. at 7-8.) The court further found that [plaintiff] had completed service of all imposed California state prison terms on June 18, 2002, and was no longer serving any prison sentence for any California state offense. (Id. at 8.) Notice of the same was timely provided to CDCR. (Id.)

[Plaintiff] alleges that the CDCR failed to conform its records to reflect the May 23, 2008 court order and sentence. (Id.) As a result, the federal authorities were noticed of the order, but would not adjust [plaintiff's] sentence until the CDCR updated its records. (Id.) [Plaintiff] subsequently filed a motion in the Santa Clara Superior Court, requesting the court to issue an order directing the CDCR to conform its records. (Id.) [Plaintiff] alleges that his requests for correction were largely ignored by the CDCR. (Id.)

[Plaintiff] alleges that if he had been properly transferred to federal custody by the CDCR on June 18, 2002, he would have been released from federal custody no later than June 18, 2007. (Id.) [Plaintiff] further alleges that had he been transferred to federal custody immediately after the May 23, 2008 order, he would have been immediately released. (Id.) However, [plaintiff] was not released from federal custody until December 1, 2008. (Id.)

On October 14, 2009, [plaintiff] filed a complaint, alleging that defendants violated various constitutional rights and committed negligence, false imprisonment, and intentional and negligent infliction of emotional distress, in violation of California state law. Defendants Schwarzenegger and James removed the action to this court on January 4, 2010. On January 12, 2010, defendant Cate and CDCR filed a notice of joinder in the removal. (Dkt. No. 28 at 2-6.)

On September 10, 2010, the motion to dismiss plaintiff's federal constitutional claims filed by defendants Schwarzenegger and Cate was granted, and CDCR's motion to dismiss plaintiff's federal claims was granted, but its motion to dismiss plaintiff's state law claims was denied. (Dkt. No. 28.) Thus, this action is proceeding on plaintiff's claims that defendant James violated plaintiff's rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments; defendants CDCR, Cate, and James falsely imprisoned plaintiff; defendant James intentionally caused plaintiff to suffer emotional distress; defendants CDCR, Cate, and James were negligent and negligently caused plaintiff to suffer emotional distress; and defendants CDCR, Brown, and Cate negligently hired, retained, supervised, and disciplined their subordinates.

III. Motion for Summary Judgment

Defendants move for summary judgment as to the following claims and parties:

1. Federal constitutional claims against defendant James;

2. False imprisonment claims against defendants CDCR, Cate, Brown, and James;

3. Intentional infliction of emotional distress claim against defendant James; 4. Negligence and negligent infliction of emotional distress claims against defendant James;

5. Negligence, negligent infliction of emotional distress, and negligent hiring claims against defendants Cate and Brown; and

6. Whether defendant James is entitled to qualified immunity.

IV. Concessions

Plaintiff conceded dismissal of the Fifth Amendment claim (dkt. no. 65 at 5), and plaintiff's state law claims, with the exception of the false imprisonment claim, as to defendant Brown (dkt. no. 78 at 1).

V. Legal Standard for Summary Judgment

Summary judgment 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 that 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). "[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., citing Fed. R. Civ. P. 56(c). 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. 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. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such 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 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 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 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 586 (citation omitted).

VI. Facts

Except as otherwise noted, the court finds the following facts are undisputed.

1. On April 23, 1998, the Contra Costa County Superior Court convicted plaintiff of a series of robberies and sentenced him to a nine-year state prison term.

2. On May 27, 1998, plaintiff began serving his prison term on the 1998 Contra Costa County sentence with the CDCR.

3. On May 27, 1998, CDCR determined plaintiff's release date to be June 18, 2002.

4. On February 4, 1999, the United States District Court for the Eastern District of California convicted plaintiff of robbery and using a firearm, and sentenced plaintiff to a 97 month federal prison term, 37 months of which would run concurrent to plaintiff's state sentence while the remaining 60 months would run consecutive to plaintiff's state sentence.

5. Plaintiff's release date from CDCR remained June 18, 2002. (CDC 112 Chronological History, p. 1.)

6. On June 28, 2000, plaintiff and the Santa Clara County District Attorney's office entered into a plea agreement whereby in consideration of his pleading guilty to two robberies, plaintiff was promised that the conviction would not "add any more time to [a pre-existing state sentence arising from a Contra Costa conviction]."*fn2

7. On June 28, 2000, (1) plaintiff had already served 27 months on the Contra Costa County term before the court entered the Santa Clara County term; and (2) plaintiff's Santa Clara County conviction reduced plaintiff's credit-earning ability on the 1998 Contra Costa County sentence from fifty percent to fifteen percent during the remainder of the Santa Clara County term, pursuant to People v. Ramos, 50 Cal. App. 4th 810 (1996).*fn3

8. On July 14, 2000, the Santa Clara Superior Court convicted plaintiff of two robberies and sentenced him to a seven-year state prison term, to run concurrent with the 1998 nine-year prison term.

9. Upon receiving the Abstract of Judgment for plaintiff's 2000 Santa Clara County conviction, despite the terms of the plea agreement, CDCR officials re-calculated plaintiff's prison term in accordance with the California Penal Code and case law, and changed plaintiff's earliest possible release date from June 18, 2002, to June 28, 2006.

10. On March 5, 2001, CDCR officials re-calculated plaintiff's release date as July 28, 2006, in accordance with Ramos, 50 Cal. App. 4th at 810.

11. On July 11, 2002, plaintiff filed a petition for writ of habeas corpus in the Santa Clara County Superior Court, Ward v. People of the State of California, C063709. (Dkt. No. 71 at 16.) Plaintiff sought correction of his release date based on the plea agreement entered in Case No. C063709, in which he agreed to plead guilty in exchange for the promise of no additional time added, concurrent to the nine year sentence imposed by the Contra Costa County Superior Court in Case No. 972108502. (Dkt. No. 71 at 24.) Plaintiff alleged he would serve an additional 4 years and 10 days if the court did not modify his release date. (Id.) Petitioner informed the court that he attempted to correct the sentence calculation error through the administrative appeal process, but that the discrepancy could not be corrected through the administrative appeal process. (Id. at 20.) Plaintiff provided a copy of the transcript from the June 28, 2000 change of plea hearing, at which the court approved the plea and conditions, and stated:

I would not sentence the [plaintiff] to more than the concurrent term even if he was going to trial and be convicted on all the charges unless material facts different than those of which I'm aware of would have become known to me. . . . .

THE COURT: What the attorney has told me is that you're going to go ahead and plead guilty, admit the gun charge on the condition that I sentence you to State prison concurrently to the sentence you're already serving on the other robbery. Do you understand that? [PLAINTIFF]: Yes.

THE COURT: That means the [sic] doesn't add anymore time to it but serve that time concurrent. (Dkt. No. 72 at 4; 58-3 at 19-20.) Plaintiff was sentenced on July 14, 2000, to a total of seven years in state prison to be served concurrent to his Contra Costa County and federal convictions. (Dkt. No. 72 at 9-10.)

12. On September 3, 2002, a CDC 1130, "LPU Documents Transmittal," was completed by B. Tabarez, NKSP, and sent to the Legal Processing Unit ("LPU"). (Elliott Depo. at 182 (Ex. N).) The type of referral was "determinate sentence law (DSL) problem case," and was marked routine. (Id.) The "discrepant notice" box was also marked. The nature of the problem was described as:

M.O. and transcripts state cases to run concurrent. However, A.O.J. refers cases are to run consecutive. I've also attached U.S. District Court Case #98CR00144 reflect[ing] CNT 002 to run consecutive to state sentence. Post sentence was granted for 11 days. [I]s this correct. Please review for clarification. Thank you. (Elliott Depo., at 172 (Ex. N).) On February 14, 2003, the LPU referral for Case No. CC063709 was returned stating that no issue exists because the "Other Orders" portion of the abstract clearly indicated this sentence was to run concurrent to plaintiff's federal case and Contra Costa County Case 180856-7. (Id. at 173.)

13. Plaintiff's central file contains a CDCR 850 Detainer Summary that contains the following handwritten entries:

10-29-02 Received request for In re Stoliker*fn4 preparing paper for signatures

11-2-02 Certified copy mailed to

Bureau of Prisons 5/27/03 follow up - per Kim Beakey

U.S. Bureau of Prisons (925) 803-4700

Correctional Programs Dept. request denied will fax copy of denial letter. 5/27/03 Denial letter enclosed.

(Dkt. No. 70 at 9.)*fn5

14. On October 31, 2002, plaintiff signed a request for transfer under In re Stoliker, which the BOP received on November 7, 2002. (Dkt. No. 70 at 11-12.)

15. On December 6, 2002, Lyndell Penney, Correctional Programs Designator with the BOP, denied the request for plaintiff's transfer, claiming that because plaintiff's state and federal terms were concurrent to each other, the State of California had primary custodial authority. (Dkt. No. 70 at 14.) Ms. Penney stated that a detainer would be lodged by the United States Marshals Service to be exercised upon completion of plaintiff's State term. (Id.)

16. On May 15, 2003, the Santa Clara County Superior Court granted a habeas petition filed by plaintiff, and ordered that plaintiff be delivered into federal custody to begin his federal sentence. The order, entitled "Final Order," reads as follows:

TO: The California Department of Corrections

The People of the State of California as represented by the Santa Clara County District Attorney's Office, and The WARDEN at the state prison facility housing [plaintiff],

You are hereby ordered to deliver SHIMAIN A. WARD into the custody of the Attorney General of the United States, or his authorized representative, as directed by this order granting his habeas corpus petition.

After having considered the applicable law, the briefs and the arguments presented by the parties in this matter, it appears to this Court that [plaintiff] is entitled to be delivered forthwith into the custody of the federal authorities for the purpose of serving a sentence imposed by the United States District Court. (In re Harris (1964) 60 Cal.2d 878,*fn6 In re Stoliker (1957) 49 Cal.2d 75.)

It is so ordered.

Counsel for [plaintiff] should serve this order upon the warden having custody over [plaintiff] and may apply to this court for any further orders that may be necessary to effectuate enforcement.

DATED: May 15, 2003

/s/ RISE JONES PICHON JUDGE OF THE ...


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