The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (ECF Nos. 74, 82-86, 87, 90)
ORDER DENYING PLAINTIFF'S MOTION TO
S T R I K E D E F E N D A N T R E E V E S
DECLARATION (ECF Nos. 79, 80)
Plaintiff Robert Gonzales Saenz ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on March 26, 2009. On September 28, 2010, the screening order issued, and this action is proceeding on the second amended complaint against Defendant Reeves for fabricating disciplinary charges against Plaintiff in retaliation for his filing grievances in violation of the First Amendment and deliberate indifference by placing Plaintiff in a holding cell without drinking water and a toilet and denying access to blankets and extra clothing in violation of the Eighth Amendment.*fn1 (ECF No. 16.) The parties have consented to the jurisdiction of the Magistrate Judge. (ECF Nos. 5, 56.) On January 31, 2012, Defendant filed a motion for summary judgment. (ECF No. 74.) Plaintiff filed a motion to strike Defendant Reeves' declaration as unauthenicated on January 31, 2012. (ECF No. 79.) On February 3, 2012, Defendant Reeves filed an opposition to the motion to strike the declaration as unauthenticated. (ECF No. 80.) Plaintiff filed an opposition to the motion for summary judgment, declaration in support of his opposition, statement of undisputed facts, statement of disputed facts, response to undisputed facts, and deposition transcript.*fn2 (ECF Nos. 82-87.) On April 17, 2012, after receiving an extension of time, Defendant filed a reply. (ECF No. 90.)
II. Motion to Strike Defendant Reeves' Declaration as Unauthenticated
Plaintiff moves to have Defendant Reeves' declaration, submitted in support of the motion for summary judgment, stricken from the record as he asserts that it is unsigned and unauthenticated. (Motion to Strike Defendant Reeves' Declaration 2-3,*fn3 ECF No. 79.) Plaintiff argues that defense counsel is attempting to circumvent clearly established rules and commit an intentional violation of the rules. (Id. at 3.) Defendant opposes the motion on the ground that the declaration was submitted with the digital signature of Defendant Reeves, and includes a copy of the document with Defendant Reeves' original signature. (Opposition 1-2, ECF No. 80; Declaration of Defendant Reeves 4, ECF No. 80-1.)
The declaration submitted with the motion for summary judgment is signed "/s/ 'D. Reeves' (original signature retained by counsel)." Local Rule 131(f) specifically allows for a party's non-electronic signature and the document submitted complies with the requirements of this rule. Plaintiff's motion to strike the declaration of Defendant Reeves is denied.
III. Defendant's Motion for Summary Judgment
A. Motion for Summary Judgment Legal Standard
Pursuant to Federal Rule of Civil Procedure 56(c), 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 judgment as a matter of law. Summary judgment must 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, the court is to liberally construe the filings and motions of pro se litigants. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). The "party seeking summary judgment 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, 477 U.S. at 323 (quoting Rule 56(c) of the Federal Rules of Civil Procedure).
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. 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 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. Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11.
The parties bear the burden of supporting their motions and oppositions with the papers they wish the Court to consider and/or by specifically referencing any other portions of the record for consideration. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The Court will not undertake to mine the record for triable issues of fact. Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010).
B. Relevant Allegations in Second Amended Complaint
On September 14, 2007, Plaintiff was housed with inmate Abreau in the Administrative Housing Unit ("ASU"). (Sec. Am. Compl. ¶ 23, ECF No. 14.) Plaintiff objected to being housed with inmate Abreau because there was a difference in their custodial level and forced compatibility was improper. Defendant Reeves threatened disciplinary action if Plaintiff rejected inmate Abreau as a cell mate. (Id. at ¶ 25.) On September 19, 2007, inmate Abreau asked to speak with Defendant Reeves and was subsequently taken to a holding cell. (Id. at ¶ 26.) Plaintiff alleges that Defendant Reeves then approached him and stated that he knew why Plaintiff had been transferred from California Substance Abuse Treatment Facility, and that Plaintiff had filed complaints against officers at Salinas Valley State Prison ("SVSP"). Defendant Reeves accused Plaintiff of raping his cell mate and told him that he was going to make sure he got time for it, and give him trouble as long as he was at Pleasant Valley State Prison ("PVSP"). (Id. at ¶ 27.) Defendant Reeves threatened bodily harm to Plaintiff. (Id. at ¶ 29.)
Plaintiff was housed in a three by three foot cage without a toilet and drinking water for approximately five and one half hours. (Id. at ¶ 31.) Plaintiff was transferred to Fresno Community Hospital at approximately 12:40 p.m. for a forensic examination. He was not allowed to use the toilet until 4:00 p.m. (Id. at ¶ 32.) Plaintiff alleges that Defendant Reeves and inmate Abreau fabricated the rape charge against Plaintiff. (Id. at ¶ 33.) Plaintiff was held in the ASU for the purpose of receiving Department of Justice ("DOJ") test results. (Id. at ¶ 35.) The DOJ test results came back negative for any evidence that Plaintiff had raped inmate Abreau. (Id. at ¶ 44.) The rule violation was dismissed on July 10, 2009, citing numerous due process violations. (Id. at ¶ 47.) Defendant Reeves was aware that inmate Abreau had previously made a false rape accusation against an inmate. (Id. at ¶ 50.)
Plaintiff alleges that on December 2, 2007, an unidentified correctional officer planted a weapon in his cell. (Id. at ¶ 38A.) On December 27, 2007, Plaintiff surrendered the weapon and Defendant Reeves ordered it removed from Plaintiff's front pocket where it was in a sealed envelope and ordered Plaintiff to be held in a holding cell. Plaintiff was in the holding cell for four and one half hours without drinking water or a toilet. (Id. at ¶ 38B-D.) Defendant Reeves charged Plaintiff with possession of a weapon and Plaintiff was found guilty. (Id. at ¶ 38J.) Plaintiff was housed in a bitterly cold cell from December 27, 2007, to May 19, 2008, and denied extra clothing and blankets and heat. (Id. at ¶¶ 38F, 38I.) Plaintiff requested extra clothing and blankets. All officers referred the requests to Defendant Reeves, who denied them. (Id. at ¶ 38G.)
C. Statement of Undisputed Facts
1. Defendant Reeves was a correctional sergeant employed with the
California Department of
Corrections and Rehabilitation for over twenty five years.*fn4
(Reeves Dec. ¶ 1, ECF No. 74-5.)
2. Defendant Reeves worked as a correctional sergeant in the ASU at PVSP for over ten years. (Id. at ¶ 2.)
3. In 2007, one of the inmates in the PVSP ASU was Plaintiff. (Sec. Am. Compl. ¶ 24; Reeves Dec. at ¶ 2.)
4. During 2007, the population of the ASU at PVSP ranged between 100 and 180 inmates. (Id. at ¶ 3.)
5. Defendant Reeves was not familiar with Plaintiff prior to his August 2007 transfer into the PVSP ASU. (Id.; Plaintiff's Depo. at 61:1-5.)
6. On September 19, 2007, at approximately 7:40 in the morning, inmate Abreau (H-16924) informed Defendant Reeves that he had been raped by his cell mate, Plaintiff. (Reeves Dec.
¶ 4.) 7. Per established operational procedures, their cell, ASU 182, was sealed as a crime scene. Investigative Services Unit ("ISU") staff were contacted to conduct an investigation pursuant to the protocols established under the Prison Rape Elimination Act. (Id.)
8. After allegations that a rape had been committed, both inmate Abreau and Plaintiff were placed in separate holding cells until ISU staff arrived and collected evidence per established procedures. (Id. at ¶ 5.)
9. Plaintiff was not allowed to drink, wash, gargle, shower or use the restroom until after evidence was collected so as to not contaminate or destroy any possible evidence. (Id.)
10. During the investigation by ISU, photographs of cell ASU 182 were taken and evidence was collected from the cell and the inmates. (Id. at ¶ 6.)
11. Both inmates were subsequently transported separately to Fresno Community Medical Center for the Sexual Assault Examination Kit per the Prison Rape Elimination Act Protocol. (Id.)
12. The rape charge was as a result of the allegations made by Plaintiff's cell mate Abreau. (Id. at ¶ 7.)
13. Defendant Reeves took the initial report, but the actual investigation was handled by ISU, the hospital forensic staff, and the District Attorney's office. (Id. 14. On December 27, 2007, Plaintiff appeared at a Classification Committee to determine his appropriate housing and program needs. (Id. at ¶ 9.)
15. During his review, Plaintiff advised the committee that he "had a weapon" in his jumpsuit "that was planted in [his] cell by staff." (Id.)
16. Upon Plaintiff's announcement, Defendant Reeves removed a soft metal stationary fastener measuring approximately three inches in length, one half inch in width and flattened at an angle at one end. (Id.)
17. This type of item is considered dangerous contraband if possessed by inmates in ASU. (Id.) 18. Pursuant to the established procedures for the discovery of dangerous contraband on an ASU inmate, Defendant Reeves instructed a correctional officer to escort Plaintiff to a holding cell for an unclothed body search for further contraband. (Id. at ¶10.)
19. Defendant Reeves also instructed a correctional officer to conduct a thorough search of Plaintiff's cell (ASU 114) for an additional dangerous contraband. No further contraband was located. (Id.)
20. Plaintiff was in the holding cell while these searches were completed. (Id. at ¶ 11.) 21. Defendant Reeves issued Plaintiff a Rules Violation Report ("RVR") for the specific act of Possession of Dangerous Contraband at the ICC. (Id. at ¶ 12.)
22. Plaintiff was found guilty of this offense on February 1, 2008. (Id.) 23. Plaintiff claims that he found the metal fastener in his cell after returning from a shower almost three weeks prior to the committee incident. (Id. at ¶ 13.)
24. Plaintiff has not alleged that Defendant Reeves put the contraband in his cell. (Id.; Plaintiff's Depo 77:4-15, 78:4-16, 79:8-10.)
25. After the search of Plaintiff's cell was conducted, his personal and state property were collected by correctional officers and moved to another cell (ASU 159). (Reeves' Dec. at ¶ 14.)
26. Plaintiff was placed in a different cell to prevent the possibility of him obtaining additional dangerous contraband items from other inmates housed near him in that particular section of the building. (Id. at ¶ 15.)
27. There are air vents in each cell that provide all inmates with warm or cool circulating air to protect them from the elements of inclement outdoor weather year round. (Id. ¶ 16.)
28. Pursuant to institution policy and procedures, inmates are issued two pairs of boxer shorts, two t-shirts, one towel, two sheets, two wool blankets, two sets of thermal tops and bottoms, and a jumpsuit in their cell. (Id. at ¶ 17; Plaintiff's Depo. at 103:9-11.)
29. An inmate is allowed additional clothing and/or linens if they obtain documentation from their medical care provider demonstrating a ...