The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 for alleged deprivation of his First and Fourteenth Amendments rights by interference with his legal mail. Before the court is defendant Garcia's motion for summary judgment, which has been fully briefed. See ECF No. 36 (motion); ECF No. 47 (plaintiff's opposition); ECF No. 48 (defendant's reply); ECF No. 50 (plaintiff's superseding "amended opposition"). All other defendants have been previously dismissed from the action. See ECF No. 30.
The following facts are undisputed unless otherwise noted. At all relevant times, plaintiff was an inmate at California State Prison -- Sacramento (CSP-SAC) and defendant Garcia was a correctional officer at the institution. Garcia was assigned to the Investigative Services Unit (ISU), and his responsibilities included the investigation of illegal activity at the prison, including drug trafficking and gang activity.*fn1 On May 29, 2009, Garcia approached plaintiff on the prison yard. Garcia was holding a video cassette, and informed plaintiff that it had been removed from a box of materials sent to plaintiff by an attorney named Paul Echols. The box had been opened and inspected outside plaintiff's presence and without his knowledge. Plaintiff contends, and defendant does not dispute, that the videotape contained a recording of his "interrogation." Jacoby Pope Decl. (ECF No. 47-1, Ex. A). Plaintiff's father had hired attorney Echols to obtain and provide to plaintiff the files and materials necessary for preparation of a habeas petition challenging plaintiff's conviction, after plaintiff's trial counsel refused to cooperate. See Joseph Pope Decl. (ECF No. 47-1, Ex. H). Garcia told plaintiff that the videotape was contraband and had to be returned to Echols, and that plaintiff needed to sign a trust account withdrawal form to pay for the return postage. Plaintiff signed the withdrawal slip.*fn2 Jacoby Pope Decl. (ECF No. 47-1, Ex. A); Garcia Decl. (ECF 36-2, Ex. A).
The parties dispute the circumstances of the videotape's discovery. Defendants present evidence that the package was originally delivered in error to Folsom State Prison, which is next door to CSP-SAC. Garcia was contacted by an ISU officer at Folsom, who told him that the box had been opened before staff determined that the addressee was not housed at Folsom. Staff at Folsom believed that the package contained contraband, most likely a cellular phone. Garcia Decl. (ECF 36-2, Ex. A) at ¶¶ 4-5. Plaintiff disputes these facts, relying on the declarations of three inmates who witnessed the conversation between Garcia and plaintiff and report that Garcia never said the box had been opened at Folsom. Gallegos Decl. (ECF No. 47-1,Ex. B); Perks Decl. (ECF No. 47-1, Ex. C); Rowe Decl. (ECF No. 47-1, Ex. D). Plaintiff declares that Garcia acknowledged being the one who had opened the box. Jacoby Pope Decl. (ECF No. 47-1, Ex. A).
Garcia declares that he retrieved the package from Folsom and brought it to the ISU office at CSP-SAC. Defendant presents evidence that the box indicated that it was sent from Attorney Paul Echols, but that it was not marked "legal mail" or "confidential." Garcia Decl. (ECF 36-2, Ex. A) at ¶ 7. Plaintiff offers declarations to the contrary from Echols and from plaintiff's father, to whom the box was eventually returned. Echols Decl. (ECF No. 47-1, Ex. G); Joseph Pope Decl. (ECF No. 47-1, Ex. H). Plaintiff also presents the declaration of an inmate who overheard Garcia tell plaintiff that the video cassette "had been extracted from a box marked legal mail and that the box had legal paperwork." Perks Decl. (ECF No. 47-1, Ex. C). Inmate Rowe also heard Garcia state that he had opened plaintiff's legal mail. Rowe Decl. (ECF No. 47-1, Ex. D).
Garcia declares that he contacted Echols by telephone and inquired about the contents of the package. According to Garcia, Echols reported that the box contained a videotape and, when informed that plaintiff was not permitted to possess a videotape, instructed Garcia to return it to him. Garcia removed the tape from the package pursuant to Echols' instructions. Garcia Decl. (ECF 36-2, Ex. A) at ¶¶ 7-9. Echols denies that he spoke to Garcia or any officer from the prison, and denies that he authorized return of the tape. Echols Decl. (ECF No. 47-1, Ex. G).
Inmates are prohibited by 15 Cal Code Regs. § 3006 from possessing materials that present a serious threat to facility security or the safety of inmates and staff. Pursuant to this regulation, defendant contends that inmates are not allowed to possess VHS cassette tapes because the plastic can be fashioned into a weapon. Additionally, inmates do not possess the means by which to watch video cassettes at the prison, as VCRs are not available for inmate use. Garcia Decl. (ECF 36-2, Ex. A) at ¶ 10; Administrative Appeal Log. No. SAC-09-00967 (attachment to Young Decl. (ECF 36-2, Ex. C)) (finding on administrative review that the videotape constituted contraband and plaintiff lacked ability to view it). In response to this showing plaintiff provides the administrative response to his May 2012 request for interview, advising that arrangements for him to view a videotape could be made through the Disciplinary Office. (ECF No. 47-1, Ex. N).
Before bringing the videotape and trust withdrawal slip to plaintiff, Garcia turned the rest of the package over to the Facility B Watch Office. He informed staff that the package could be issued to plaintiff. Garcia Decl. (ECF 36-2, Ex. A) at ¶ 11. After plaintiff signed the trust withdrawal slip, Garcia brought the videotape to the prison mail room and had no further involvement in the matter. Garcia Decl. (ECF 36-2, Ex. A) at ¶ 14. Plaintiff disputes Garcia's lack of further involvement, as set forth below.
It is undisputed that three other correctional officers appeared at plaintiff's cell later in the day with the box that had been sent to plaintiff by Echols. The box had been opened. Plaintiff insisted that a supervising officer photograph the opened box and log its contents before he would accept delivery. This request was not granted, and the box was taken away. Pope Dep. (ECF 36-2, Ex. B) at 29-30. When plaintiff administratively appealed the alleged tampering with his legal mail, prison authorities found that he had "refused" delivery of the box. Administrative Appeal Log. No. SAC-09-00967 (attachment to Young Decl. (ECF 36-2, Ex. C)). Plaintiff forcefully disputes this characterization. Pope Dep. (ECF 36-2, Ex. B) at 33-34, 57-58.
To support his allegations that Garcia was ultimately responsible for sending the box back out of the prison, plaintiff declares that the officers who brought him the box told him they would take it back to Officer Garcia. Jacoby Pope Decl. (ECF No. 47-1, Ex. A). Plaintiff also points to the declaration of an inmate who reports hearing Officer McKnight tell plaintiff that he (McKnight) had turned the box over to Garcia. Moten Decl. (ECF 47-1, Ex. K). In rebuttal, defendant has submitted a declaration from McKnight denying that he made such a statement and stating that he does not recall where the box went after plaintiff refused to accept it. McKnight Decl. (ECF No. 48-2).
It is undisputed that plaintiff never took possession of the box, which was sent back to attorney Echols. Plaintiff presents evidence that the box was ultimately retrieved from Echols by plaintiff's father, who could not afford to mail it back to the prison. Joseph Pope Decl. (ECF No. 47-1, Ex. H). Without access to his legal materials, plaintiff avers that he was unable to timely file his habeas petition. Plaintiff is now procedurally barred from seeking federal habeas relief. Jacoby Pope Decl. (ECF No. 47-1, Ex. A).
To demonstrate his need for the materials in the box, plaintiff relies on his correspondence with Assistant Federal Defender Ann McClintock, who never represented him but who provided information about the statute of limitations applicable in habeas. In a letter dated June 26, 2009, McClintock advised plaintiff that his filing deadline appeared to be June 10, 2009, and that he should file as soon as possible. McClintock Ltr. (ECF No. 47-1, Ex. J). Plaintiff also points to the docket in Case No. 2:09-cv-0718 JFM P. Docket Sheet (ECF No. 47-1, Ex. M). The court takes judicial notice of this habeas case,*fn3 in which plaintiff sought repeated extensions of time to file a habeas petition. Case No. 2:09-cv-0718 JFM P was opened on March 16, 2009 and closed on July 10, 2009. No habeas petition was filed.
STANDARDS FOR SUMMARY JUDGMENT UNDER RULE 56 Summary judgment is appropriate when it is demonstrated that there exists "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 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 ...