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James Anthony Guerrero v. S. Mcclure

February 28, 2013



Plaintiff, a state prisoner, filed this civil rights action pursuant to 42 U.S.C. § 1983 against five named defendants. A motion for summary judgment filed on behalf of defendants Ferguson, Fecht and Fox is pending before the court.*fn1 (Doc. No. 83.) Plaintiff has filed opposition to the defendants' motion for summary judgment (Doc. Nos. 84, 87-89, 92), and defendants have replied. (Doc. Nos. 85-86, 97-98). For the reasons that follow, it will be recommended that defendants' motion be granted.


Plaintiff's claims stem from an incident on April 22, 2009 involving the use of force by correctional officer McClure against plaintiff. In his complaint plaintiff alleges as follows. On that date, McClure escorted plaintiff to his cell, closed the cell door, and opened the "food port" to remove plaintiff's handcuffs. (Doc. No. 1 at 6.) McClure removed plaintiff's left wrist cuff and, upon having difficulty removing the right wrist cuff, yelled at plaintiff to "turn the fuck around" as he "yanked and slammed" plaintiff's right wrist into the food port/cell door. (Id.) Plaintiff yelled at McClure to stop pulling on the cuff, however McClure "kept pulling on the cuff . . . ." (Id. at 6.)

Correctional officer Montes approached, asked McClure to let go of plaintiff, and asked plaintiff "what is going on?" Id. at 6-7. Montes then removed plaintiff's right wrist cuff and asked "if [plaintiff] was cool." (Id. at 7.) Both McClure and Montes then left to escort other inmates. (Id.)

At approximately 9:10 p.m., Montes returned and asked to see plaintiff's wrist and asked if plaintiff could wait until morning to go to "Medical." (Id.) Plaintiff told Montes "I will try, but it [is] hurting really bad." (Id.) Sometime after 10:00 p.m., plaintiff requested medical attention and was treated for a swollen wrist with an ice pack. (Id. at 8.) Plaintiff filed a timely CDCR-602 inmate appeal complaining about McClure's use of force. (Id.)

On April 23, 2009, Third Watch Ad-Seg Lieutenant Ferguson had plaintiff write an affidavit regarding the April 22, 2009 incident and videotaped plaintiff's statement. (Id.) Ferguson stated to plaintiff, "This will go to court." (Id.) Although Ferguson helped by videotaping plaintiff's statement and taking the affidavit, he failed to prepare an incident report containing all witness statements and a complete medical report of plaintiff's injuries, which is considered standard procedure. (Id. at 10.)

On May 2, 2009, plaintiff received a CDCR-115 Rules Violation Report (RVR) authored by McClure on April 30, 2009, charging him with "resisting staff resulting in the use of force." (Id. at 9.) On May 5, 2009, plaintiff asked Captain Fox why McClure's RVR had taken nine days to complete when it should have been completed in twenty-four hours. (Id. at 11.) Fox stated that he was personally handling the investigation, and "there are a lot of irregularities in this case." (Id.) Upon receiving the RVR and an accompanying incident report documenting McClure's April 22, 2009 use of force, it appeared to plaintiff that Lt. Ferguson was covering up for McClure's procedural violations. (Id.)

On May 29, 2009, plaintiff was escorted to a disciplinary hearing on the RVR authored by McClure. (Id. at 11.) Fecht, the officer who presided over the hearing, found plaintiff guilty of the disciplinary charge of resisting staff resulting in use of force. (Id. at 13.) During the hearing, it was apparent to plaintiff that Fecht had already decided plaintiff's guilt, because Fecht refused some of plaintiff's requests for witnesses, refused to ask McClure all of the questions plaintiff had submitted, and answered some of McClure's questions for him. (Id. at 11-13.) As a result of this disciplinary conviction, the loss of 90 days of good time credit was assessed.*fn2 (Id. at 119.)

Based on the foregoing, plaintiff alleges that defendants Fecht, Ferguson and Fox conspired to authorize and issue a false 837 Crime/Incident Report to ensure that he was found guilty of the RVR issued by McClure, in retaliation for plaintiff having submitted an inmate grievance regarding McClure's use of force. (Id. at 10.) Additionally, plaintiff claims that Fecht, in his capacity as Senior Hearing Officer, and Fox, in his capacity as the Correctional Captain who reviewed the final outcome of the May 29, 2009 disciplinary hearing, violated his due process rights in connection with the outcome of the RVR issued by McClure. (Id. at 12.)


I. Defendants' Motion

Defendants Fecht, Ferguson and Fox move for summary judgment, asserting that plaintiff has failed to come forward with any evidence supporting his claims that they retaliated against him, violated his due process rights, or otherwise conspired with one another to violate his constitutional rights. In the alternative, defendants assert they are entitled to qualified immunity from suit. (Doc. No. 83-6 at 1.)

Defendants argue that plaintiff's retaliation claim fails because he has not shown that he was engaged in protected conduct prior to the time of the alleged retaliatory acts. In this regard, defendants contend that plaintiff was issued and received the RVR and accompanying incident report on April 30, 2009, while plaintiff's inmate appeal complaining about the incident with McClure was not received in the Appeals Office until May 5, 2009, and was assigned to Fox for review the following day, on May 6, 2009. (Id. at 7.) Defendants further argue that plaintiff cannot show that retaliation was a "substantial" or "motivating" factor behind any of their conduct in relation to the RVR and incident report at issue.

Defendants contend that plaintiff's due process claim fails because he has no protected liberty interest in not receiving a false RVR or in the accompanying loss of good time, due to the fact that he is serving a life sentence which is not affected by the loss of good time. (Id. at 10-11.) In the alternative, defendants argue that plaintiff received all the process and procedural protections to which he was entitled. (Id. at 11.)

To the extent that plaintiff brings a separate claim of an alleged conspiracy to violate his constitutional rights, defendants contend that such a claim also fails because the alleged conspiracy did not deprive plaintiff of any constitutional rights. (Id. at 18.)

II. Plaintiff's Opposition

Plaintiff has submitted multiple filings in opposition to the motion for summary judgment filed on behalf of defendants Fecht, Ferguson and Fox. (See Doc. Nos. 84, 87-88, 89, 92.) Plaintiff's submissions include a response to each fact claimed to be undisputed by the defendants and an explanation for those facts he attempts to dispute (Doc. Nos. 84 & 88), his own set of facts claimed to be undisputed (Doc. Nos. 87 & 92*fn3 ), and an opposition brief addressing some of defendants' legal arguments. (Doc. No. 89). In each of these submissions, where plaintiff attached his own declaration, he either failed to sign it (Doc. No. 84 at 9) or failed to sign under penalty of perjury (Doc. Nos. 87 at 4; 88 at 3; 89 at 4; 92 at 4).

III. Defendants' Reply

In reply, defendants Fecht, Ferguson and Fox note that plaintiff has failed to oppose their motion for summary judgment with respect to his conspiracy and retaliation claims. (Doc. No. 97 at 2.) Defendants further assert that plaintiff failed to submit any admissible evidence or legal authority regarding his contentions in support of his due process claim and has also failed to refute defendants' assertion that they are entitled to qualified immunity. (Id.)


I. Summary Judgment Standards under Rule 56

Summary judgment is appropriate when there exists "no genuine issue as to any material fact and that the moving party 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, ...

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