The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, currently incarcerated at the California Correctional
Institution ("CCI"), in Tehachapi, California, under the authority of
the California Department of Corrections and Rehabilitation ("CDCR").
Plaintiff proceeds in forma pauperis and without counsel*fn2
in this civil rights action filed pursuant to 42 U.S.C. §
1983. This action proceeds on plaintiff's First Amended Complaint ("FAC" or "complaint"), filed
November 26, 2008 (Dkt. No. 20), wherein plaintiff alleges that
officials at CDCR's Office of Internal Affairs-Northern Region
("OIA"), and California State Prison-Sacramento ("CSP-SAC"),
improperly relied upon plaintiff to investigate allegations of sexual
misconduct by CSP-SAC Correctional Officer Mary Brockett. The
investigation resulted in the termination of Brockett's CDCR
employment. Plaintiff contends that his participation in this "sting
operation" compounded his serious mental health needs, and that
plaintiff was thereafter denied adequate mental health care, and
subjected to retaliatory actions by correctional staff.
Following this court's rulings on defendants' motions to dismiss (see Dkt. Nos. 78, 89), this action proceeds on the following claims, against the following defendants: (1)
Eighth Amendment claim for sexual misconduct, against defendant Mary Brockett; (2) Eighth Amendment claims for deliberate indifference to plaintiff's serious mental health needs, against defendants K. Kelly (CSP-SAC Chief Psychologist and Health Care Manager); M. Jaffe (CSPSAC Chief Psychiatrist); J. Martin (CSP-SAC Senior Supervising Psychologist); B. Williams and J. Chapman (both agents with CDCR's OIA); S. Vance (CSP-SAC Correctional Captain), and P. Kennedy (CSP-SAC Correctional Counselor); (3) Eighth Amendment failure to protect claims, against defendants Kelly, Jaffe, Martin, Vance, Williams, and Chapman; (4) First Amendment retaliation claims, against defendants Williams; Chapman; Vance, Kennedy; R. Hill (former CSP-SAC Associate Warden); S. Shannon (CSP-SAC Correctional Lieutenant); B. Joseph and C. Gold (both CSP-SAC Correctional Sergeants); R. Garcia (Investigative Services Unit Correctional Officer); and J. Tinseth, J. Wachter, and R. Morrow (all Correctional Officers); and (5) "failure to supervise" claims, against defendants Kelly, Jaffe, Williams, Chapman, Hill, Vance, Shannon, Joseph, and Gold.
Presently pending for decision are the motions for summary judgment filed, respectively, by defendant Brockett (Dkt. No. 183-84), and all other defendants (Dkt. Nos. 164-82.)*fn3 Plaintiff timely opposed the motions, and also filed authorized supplemental oppositions, surreplies and supporting exhibits (Dkt. Nos. 190-94, 197-98, 231, 250); defendants replied (Dkt. Nos. 221-26, 251-52). Defendants also submitted additional relevant evidence ordered by the court. (Dkt. Nos. 237-38, 246.)
For the reasons that follow, the court recommends summary judgment for defendants on plaintiff's First Amendment retaliation claims, and summary judgment for defendants on plaintiff's Eighth Amendment claims, with the exception of narrowed Eighth Amendment claims, including certain failure to supervise claims addressed herein, against defendants Brockett, Kelly, Jaffe, Martin, Chapman, Vance and Kennedy, which the undersigned finds should proceed to trial.
II. LEGAL STANDARDS FOR SUMMARY JUDGMENT
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that there is 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 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 then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 Advisory Committee Notes to 2010 Amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). 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. Celotex Corp., 477 U.S. 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.
Consequently, 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 such a dispute exists. See Fed. R. Civ. P. 56(c); 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).
III. EVIDENTIARY OBJECTIONS
The parties have raised numerous evidentiary objections. For purposes of ruling
on the pending motions for summary judgment, the court addresses only those objections to evidence actually relied on by the court. The court declines to address any remaining evidentiary objections.*fn4
The following summary sets forth the relevant facts that are undisputed by the parties or, following the court's review of the evidence, have been deemed undisputed for purposes of the pending motions. Pertinent averments and disputed facts are also noted. Previously-submitted evidence that cannot reasonably be disputed, e.g., copies of plaintiff's relevant administrative appeals, are also noted.
1. Plaintiff was born on July 23, 1966, and is now 46 years of age. Plaintiff testified that he first received mental health treatment when he was about ten years old. (Plaintiff's Deposition (Lodged pursuant to Dkt. No. 182) ("Pltf. Depo.") at 19, 21-2.)
2. Plaintiff was committed to CDCR in 1988, following convictions for residential burglary, residential robbery and forcible rape. (Nov. 10, 1988, Abstract of Judgment- Commitment (Dkt. No. 184-2 at 4).)
3. While incarcerated, plaintiff was convicted in 1993 of aggravated assault with a deadly weapon and, in 1996, pled guilty to two counts of resisting an officer. (Dkt. No. 184-2 at 2, 3.)
4. In 1991, plaintiff was transferred from the Segregated Housing Unit ("SHU") at California State Prison-Corcoran ("CSP-COR") to the SHU at Pelican Bay State Prison ("PBSP"). Plaintiff was transferred from PBSP to CSP-SAC on June 1, 2000, where he remained until January 21, 2004, when plaintiff was transferred to Salinas Valley State Prison ("SVSP"). Plaintiff remained at SVSP until September 14, 2004, with the limited exception of June 2, 2004, when he was returned to CSP-SAC to give testimony in the State Personnel Board action against defendant Brockett. From September 14, 2004, until April 6, 2005, plaintiff was housed at High Desert State Prison ("HDSP"). Plaintiff was transferred back to CSP-SAC on April 6, 2005, and remained there through commencement of this action on October 26, 2007. Plaintiff was transferred to the California Correctional Institution ("CCI") in October 2009, where he remains incarcerated.
5. In December 1995, in response to litigation on behalf of prisoners incarcerated in segregated housing at Pelican Bay State Prison ("PBSP"), plaintiff was transferred from PBSP's SHU to PBSP's "B Facility, to the psych service unit."*fn5 (Pltf. Depo. at 36-7.) Plaintiff testified that his move was based on the March 21, 1994 finding of PBSP psychiatrist Dr. Shepherd that plaintiff had an Axis I diagnosis of "Schizophrenia, paranoia 295.34, chronic with acute exacerbation."*fn6 (Id. at 39.) Plaintiff testified that he was prescribed lithium and other medications. (Id. at 40-2.)
6. Plaintiff testified that he was transferred to CSP-SAC in April 2000, at the recommendation of his PBSP treating psychologist, Dr. Grimes, and staff psychiatrist, Dr. Johnson, who "wanted me in a more stable environment," with the intent of reducing plaintiff's flashbacks associated with Post-Traumatic Stress Disorder ("PTSD"). (Id. at 43.) In January 2000, plaintiff "appeared before the [PBSP] institution committee for a mental health transfer. . . . Dr. Grimes and the committee and the warden -- the associate warden . . . said that they had contacted Karen Kelly, the [CSP-SAC] senior psychologist . . . and she agreed to accept me into the PSU [Psychiatric Services Unit]*fn7 program at California State Prison Sacramento." (Id. at 44-5; accord, Dkt. No. 193 at 13 ("[t]he Sr. Psychologist at SAC PSU has agreed to accept" Manago).
7. In a "Discharge Psychological Evaluation," dated April 19, 2000, prepared in anticipation of plaintiff's transfer to CSP-SAC, PBSP psychologist William Grimes, Ph.D., noted plaintiff's complex psychological diagnostic history, including present diagnoses of PTSD (Dkt. No. 193 at 16):
[T]here has been considerable disagreement about the diagnosis of Mr. Manago's condition. He has been given diagnoses of: schizophrenia, paranoid; depression; bipolar disorder; cognitive disorder, NOS; and Axis II personality disorders with antisocial, borderline, and narcissistic features. . . . [¶] [B]oth the treating psychiatrist and this writer agree on posttraumatic stress disorder as an Axis I diagnosis. Dr. Johnson, however, favors schizoaffective disorder after PTSD, based on a history of mood disturbance and the bizarre quality of his somatic delusion. This writer, however, leans toward dissociative identity disorder ["DID"] as the second Axis I diagnosis. DID is seen, dynamically, as a predictable evolution of PTSD during development of psychological defenses.
8. Dr. Grimes further noted, in concluding his April 2000 "Discharge Psychological Evaluation," that plaintiff "is extremely suspicious of therapists, as well as others, upon initial meeting, and it is strongly suggested that caution be taken to prevent the suspicion and resistance before a good therapeutic relationship may develop." (Dkt. No. 193 at 19.)
9. Plaintiff was transferred to CSP-SAC on June 1, 2000. (Pltf. Depo. at 38, 44-5.) In January 2001, plaintiff's SHU term was suspended and he was transferred to the Enhanced Outpatient Program ("EOP") in Facility A. (Id. at 45-7.) Plaintiff testified that he was there diagnosed with paranoid schizophrenia by his primary care physician, Dr. Windham; with PTSD and schizophrenia by Dr. Gervin; and with schizoaffective disorder by his treating psychiatrist, Dr. Frishman. (Id. at 46-7.)
10. In December 2003 and January 2004, plaintiff was housed in CSP-SAC's EOP in Facility A, Building 4 (also known as "4 Block"). Plaintiff worked in 4 Block as a housing unit porter, where he assisted unit correctional officers in passing out meals. The job required that plaintiff enter the dining room to retrieve the dinner trays, then take the trays to the unit officers; pursuant to these tasks, plaintiff was generally subject to escort by correctional staff. (FAC at 5; Pltf. Depo. at 48, 151-52.)
11. Defendant Mary Brockett worked as a CDCR correctional officer from February 1994 until March 31, 2004. In December 2003 and January 2004, Brockett worked as a Facility Relief Officer on Second Watch, in the CSP-SAC Facility A, 4 Block, dining unit, on Fridays and Saturdays. (Brockett Decl. (Dkt. No. 184-3 at 2-4) at ¶¶ 2, 5.)
12. Plaintiff and defendant Brockett dispute the nature and extent of their interactions at all relevant times. Brockett avers that, prior to January 10, 2004 (a Saturday), she had "never had any extended conversations with Mr. Manago as he did not work for me as a Porter." (Id. at ¶ 6.) Brockett avers that she "became aware of inmate Manago since he worked as a Porter when I worked 4 Block on Saturdays, but I had little contact with him as he would be working and subject to escort by other correctional officers." (Id.)
13. Plaintiff alleges, in contrast, that Brockett began making sexual comments to him during the summer 2003, primarily when he was on the yard, but also in the visiting and laundry rooms, and when plaintiff was in his cell.*fn8 (Pltf. Depo. at 50-3, 142-51, 181.) Plaintiff alleges that he "first just brushed it off," and told Brockett that he was "involved with somebody already." (Id. at 53-4.)
14. Plaintiff avers that, on October 26, 2003, he "filed an ADA
complaint" requesting a transfer to California Medical Facility
("CMF"), because of Brockett's advances but without mentioning her,
because he "didn't want to be hit with no -- no type of sex charges."
(Id. at 54-5.) A copy of plaintiff's ADA (CDC Form 1824) request (Log
No. SAC-A-03-2413),*fn9 indicates that plaintiff sought
a transfer to the California Medical Facility ("CMF"), or California
Men's Colony ("CMC"), on the ground that he believed that his
placement at CSP-SAC's EOP, which included intermingling with the
prison's Level IV general population ("GP") (including
special needs and protective custody inmates), placed him at higher
risk of decompensation, injury and charges of misconduct.*fn10
( Dkt. No. 190-4 at 41-9.) Plaintiff sought "optimal
treatment" at another facility that would "assist in preventing
petitioner from deteriorating on a level IV GP yard. And/or
potentially self-destructive behaviors." (Id. at 41.)
15. Plaintiff's ADA request was reviewed by defendant P. Kennedy, Correctional Counselor I, who interviewed plaintiff on November 13, 2003. Kennedy noted plaintiff's request to be transferred to a "yard or facility [in] which he can concentrate on his mental health issues and not the politics or prison violence associated with level IV yards." (Id. at 42.) Nevertheless, Kennedy noted plaintiff's success in his designated "MHLOC" (Mental Health Level of Care), opined that plaintiff's mental health and security needs were being met at SCP-SAC's EOP unit, then, despite plaintiff's protestations (see n.10, supra), dropped plaintiff's LOC to CCCMS, noting that plaintiff "should be re-evaluated for appropriate placement." (Id.) Kennedy's recommendations were approved by Associate Warden Stiles on November 19, 2003. Kennedy does not reference this matter in her declaration filed in this action. (Dkt. No. 165-5 at 2-6.)
16. Meanwhile, on July 14, 2003, CSP-SAC Investigative Captain R. Mandeville, on behalf of CSP-SAC Chief Deputy Warden G. Stratton, submitted a request to the Office of Internal Affairs-Northern Region (also known as the Internal Affairs Unit ("IAU")), to initiate an investigation of defendant Brockett, based on evidence that Brockett may have been overfamiliar with an inmate, and may have failed to notify superiors of similar misconduct by another female correctional officer. (Internal Affairs Investigation Report - Case No. SAC-249-03, Feb. 21, 2004 (Lodged under Seal on May 4, 2012, pursuant to Order filed April 9, 2012 (Dkt. No. 228), hereafter "Investigative Report," or "Report.").) The request was addressed to CSP-SAC Warden Cheryl Pliler, and Regional Special Agent-in-Charge Sandi Grout. On July 15, 2003, IAU Special Agent Erin Parker signed the request as the investigating employee. (IAU Rpt. at BR-1-Page # (hereafter "IAU Rpt.") at 13.)
17. In a confidential memorandum dated December 17, 2003, Agent Grout informed CSP-SAC Warden Mike Knowles that IAU-Northern Region had accepted the subject complaint, and that case responsibility was assigned to Senior Special Agent James Rogers and Agent Jill Chapman. (Id. at 14.)
18. The resulting Investigative Report, completed February 21, 2004, by Agent Parker, was addressed to CDCR Director Richard A. Rimmer, and Office of Investigative Services Assistant Director Martin H. Hoshino; the Report recounts the details of the Brockett investigation. (Id. at 15-134.) The Report was signed by Agent Parker, Special Agent-in Charge Grout, and Senior Special Agent Julie Mansfield, all agents at IAU-Northern Region. (Id. at 48.)
19. The Investigative Report notes that responsibility for the Brockett investigation was assigned to Agent Chapman, defendant herein, on December 17, 2003. The case was re-assigned to Agent Parker on January 29, 2004. (Id. at 16.)
20. The Report recounts an initial meeting with plaintiff, by Investigative Services Unit ("ISU") Correctional Officer R. Garcia, defendant herein, on December 11, 2003. (Id. at 17.) In a confidential memorandum addressed to CSP-SAC Chief Deputy Warden G. Stratton, also dated December 11, 2003, Garcia stated that he had conducted a confidential interview with plaintiff, together with ISU Officer R. Mendoza, at plaintiff's request. Plaintiff told Garcia and Mendoza that a "female A-Facility employee" had provided contraband to inmates, including cell phones and a clothes iron. (Id. at 53.) The memorandum did not identify the subject employee, and does not contain allegations of sexual misconduct. However, the interview was audio recorded and provided to ISU Lieutenant D. Leiber, "due to other allegations of staff misconduct made by Manago."*fn11 (Id.)
21. Defendant Garcia has filed a declaration herein, in which he states, in pertinent part, that he served three years in CSP-SAC's ISU, from April 1999 to January 2004, but that his December 11, 2003 interview of plaintiff, and resulting memorandum to Warden Stratton, constitute his only involvement in this action. (Garcia Decl., Dkt. No. 165-3 at 2-3.) Although not included in his memorandum, Garcia concedes in his declaration that his interview of plaintiff included "Manago's allegations against Mary Brockett." (Id. at 3.) However, Garcia avers that he "had no specific information or involvement in any investigation [of Brockett] after my interview with Manago and the report I drafted following my interview with him." (Id.)
22. In disavowals common to all of the correctional defendants in this action, Garcia states that he knew who Brockett was, but did not have a personal relationship with her (and hence, implicitly, had no motivation to cause Brockett harm or to retaliate against plaintiff for participating in the investigation against Brockett); that he "had no authority to administer medical or mental health services to Plaintiff Manago"; "never intentionally or deliberately disregarded any known risk and/or serious injury" to plaintiff; "never intentionally or deliberately" delayed or denied plaintiff "access to medical/mental health care and/or treatment"; never "intentionally or knowingly cause[d] Plaintiff any pain, suffering, injury or harm"; "never at any time attempted to cause harm or incite or direct others to cause harm to inmate Stewart Manago"; at no time referred to plaintiff as a "snitch"; never told anyone that it was "open season" on plaintiff; and was never a member of any "Green Wall" (gang of prison staff members sharing a code of silence). (Dkt. No. 165-5 at 4.) (The court notes that these disavowals are common to all the correctional defendants.)
23. Meanwhile, on December 10, 2003, the day before plaintiff met with defendant Garcia, plaintiff was forcibly extracted from his cell and placed in administrative segregation ("AdSeg"). In a staff complaint plaintiff later filed against defendant Vance, Facility A Correctional Captain, on December 14, 2003 (Log No. SAC-03-2823), plaintiff alleged as follows (Dkt. No. 35-1 at 15-7):
This is a Citizens complaint pursuant to Penal Code Section 832.5, against Correctional Captain S. Vance, and other employees, who participated in the December 10, 2003, holding cell extraction of inmate/patient Manago. It appears that Captain Vance used unlawful influence upon other (C.D.C.) employees to deny my request for suicidal intervention. Prior to the extraction, Counselor Kennedy and Dr. Frishman informed me that I was accepted in (O.H.U.) [Outpatient Housing Unit]. I have been felling (sic) very paranoid and actively suicidal. I told the extraction team members that if they place me in AdSeg, that I would hang myself. It's all on video tape. Custody staff still forced me to go into 6-Block Housing Unit. Only after I started to protect their Misconduct I was removed from the cell. I have evidence that Captain Vance and other Staff were irresponsible and have engaged in unethical misconduct which reflect discredit on themselves.
24. On December 14, 2003, plaintiff was transferred from CSP-SAC's EOP unit to the institution's Correctional Treatment Center ("CTC"), for suicide precautions.*fn12 (Exh. N to Kelly Decl., Dkt. No. 166-1 at 3; see also Dkt. No. 166-2 at 6.)
25. On December 17, 2003, pursuant to the OIA's Brockett investigation, plaintiff was interviewed by defendant Chapman, OIA Agent. Plaintiff told defendant Chapman, in pertinent part, that Brockett "started getting attached to him" after her boyfriend, inmate Johnson, was transferred to another institution, and that Brockett told plaintiff that she wanted to have sexual relations with him. Plaintiff stated that, two or three weeks before, Brockett told plaintiff that she would have his child if he gave her $10,000 to get her tubes untied. Chapman asked plaintiff if he thought that Brockett would "take a letter out for him"; plaintiff responded in the affirmative. (IAU Rpt. at 18-9; see also Pltf. Depo. at 69-71.)
26. On December 18, 2003, plaintiff was discharged from the CTC, and readmitted to the EOP unit. (Dkt. No. 166 at 15.) The treatment notes, signed by Dr. Paizis, indicate that plaintiff's discharge prescriptions included Zyprexa (antipsychotic medication), and Lithium (mood stabilizing medication). (Id.) Also on December 18, 2003, CSP-SAC Warden Knowles partially granted plaintiff's staff complaint against defendant Vance (Log No. SAC 03-02823), at the second level review (informal and formal level reviews were bypassed), based on the referral of plaintiff's complaint for investigation. (Dkt. No. 35-1 at 16, 18, 20.)
27. Plaintiff testified that he had no physical contact with Brockett prior to December 20, 2003. (Pltf. Depo. at 155-56; 158.) Plaintiff told Chapman, and later testified, that, on December 20, 2003, Brockett gave plaintiff a French kiss and a personal handwritten note, and "couldn't keep her hands off of him." (Id. at 76-7; IAU Rpt. at 20.)
28. Plaintiff told Chapman, and later testified (but with less clarity regarding the date), that he engaged in sexual touching with Brockett on January 3, 2004, which allegedly included Brockett touching plaintiff's genitals, then plaintiff touching Brockett's breasts through her clothing. (IAU Rpt. at 20; Pltf. Depo. at 158, 165-67, 176.) Chapman noted, on January 7, 2004, that plaintiff "was 100 percent certain he could get her [Brockett] to do anything he wanted her to do . . . Manago sounded very confident that 'everything' could be captured on audio and video camera." (IAU Rpt. at 20-1.)
29. On January 9, 2004, Chapman informed plaintiff of the IAU "operation plan," which would include plaintiff's participation in the Brockett investigation. Plaintiff agreed, in pertinent part, to write a letter to his putative brother, addressed to an undercover post office box address, and ask Brockett to mail it out, circumventing institutional mail procedures. Chapman's written summary of this meeting concludes that "Manago acknowledged Agent Chapman made no promises to him in return for his cooperation." (IAU Rpt. at 22.)
30. Plaintiff reported to Chapman that, on January 10, 2004, he gave Brockett the letter and asked her to mail it; and that Brockett reportedly placed the letter in her inside jacket pocket. (Id. at 22-3.) Brockett later averred that, when plaintiff asked her to mail the letter, she refused, but plaintiff left the letter in the office; when Brockett later noticed the letter, she "picked it up and put it in my coat pocket and forgot about it and accidentally took the letter home." (Brockett Decl. at ¶ 7.)
31. On January 16, 2004, Chapman supplied plaintiff with a voice recorder, for the purpose of surreptitiously recording his interactions with Brockett on January 17, 2004.*fn13
32. Brockett returned the subject letter to plaintiff during their recorded interactions on January 17, 2004. Brockett avers that, when she returned the letter to plaintiff and told him that he needed to mail it through the Housing Unit Officer, plaintiff became upset and angry, so she "engaged him in conversation in an attempt to diffuse any inmate who was beginning to show some hostility toward me." (Brockett Decl. at ¶¶ 8-9.) Brockett explains that she had "previously . . . been assaulted in the same dining hall by an inmate," and "[t]hat incident came to mind as Mr. Manago, who suddenly appeared in the dining hall without escort, retrieved his letter." (Id.)
33. Brockett denies any sexual contact with plaintiff at any time, and avers that she responded to plaintiff's sexual innuendoes on January 17, 2003, "in order to keep the peace." (Id. at ¶ 10.) Brockett describes the following interactions with plaintiff on January 17, 2004 (id.):
Mr. Manago would come into my office, engage me in conversation and then later return to engage me in more conversation [in] which he initiated sexual comments which I attempted to deflect. For example, he asked when was the first time I had oral sex. He began calling me "babe" or "baby." He stated, "You are all the woman [he] [I] need" and that he [would] "make love to [me] real good." He also said that he had thought about kissing me. In fact, during the several times Mr. Manago would return to my office on the 17th he would make several comments of a sexual nature. I did not know at the time that Mr. Manago voluntarily agreed with CDCR Internal Affairs to initiate contact with me and induce me in making over familiar statements to Mr. Manago. In hindsight that explains the strange interactions Mr. Manago was having with me that day.
34. Plaintiff told Chapman and testified that, on January 17, 2004, Brockett kissed plaintiff, touched his genitals and orally copulated him. (IAU Rpt. at 24-5; Pltf. Depo. at 159-67; 182-3.) Plaintiff's allegations are not inconsistent with the transcript of plaintiff's January 17, 2004 interactions with Brockett; but neither does the transcript prove plaintiff's allegations. Plaintiff testified that some of his recorded statements reflect his attempt to describe Brockett's actions rather than to solicit such conduct, e.g., saying "Why you infatuated with my butt?" after Brockett allegedly slapped it. Plaintiff explained that "because it was a part of the investigation, I said whatever internal affairs needed to hear to prove my allegations, to prove that I wasn't lying or deceiving them." (Pltf. Depo. at 161-62; see generally id. at 160-65.)
35. Plaintiff testified that he continued to participate in the investigation of Brockett at Chapman's urging. He stated that, "at the end of December," he asked Chapman to terminate the investigation before his relationship with Brockett became too "personal," or plaintiff felt it necessary to demonstrate to Brockett that he wasn't gay.*fn14 (Id. at 76-82, 154-55, 170-71.) Chapman allegedly responded that the investigation "needed to go on" (id. at 77), and that plaintiff should try to "get what you can get. Work her, work her, work her." (Id. at 80.) Plaintiff testified that, when he "looked at like what Jill Chapman was telling me I started to feel uncomfortable because I looked at she was telling me to compromise me," but Chapman reportedly responded, "[r]egardless, just get what you can get." (Id. at 80-1.) Plaintiff stated, that "[o]n the 28th or the 24th, when she [Chapman] initiated that visit that week, I believe that she had way more than enough, and there was no sexual misconduct, other than her [Brockett's] sexual harassment kind of stuff talking like and trying to touch, but it wasn't to the point where it got actual physical. It was like she [Chapman] wanted it to go on and on and on and on. You know what I'm saying? . . . I'm talking about actually her [Brockett] oral copulating and all that, it didn't get that far yet [prior to December 28, 2003]." (Id. at 81.) Plaintiff testified that the investigators wanted to hear evidence of sexual activity on tape, that, "because it was a sexual misconduct allegation against her [Brockett] . . . Jill Chapman wanted to see how far it was going to go." (Id. at 75, 164.) In contrast, plaintiff testified that, before he was involved in the Brockett investigation, he "ke[pt] moving it where she can't touch me." (Id. at 157.)
36. Plaintiff testified that he engaged in sexual activity with Brockett solely for purposes of the investigation, explaining as follows:
Did I have any intent to make your client feel good? Absolutely not, because if I wanted to make her feel good I would have been doing it. I would have told ya'll nothing. I would have just kept her as my prize, but she wasn't my prize. I reported her misconduct. That's all it was. (Id. at 164-65.)
I was so fed up with your client, right? It was nothing sexual. Like I said in the 602, I didn't enjoy nothing that your client did. I didn't even like your client." (Id. at 171.)
I was busy working as a special agent for CDC to prove that your client was engaging in sexual misconduct and that's what I was doing. (Id. at 172.)
I didn't set her up. I didn't like her sexual advances. If I did, I wouldn't have told ya'll about it. We wouldn't even be here today. (Id. at 173.)
37. Defendant Chapman avers that plaintiff "was willing to assist in the investigation," and that Chapman never told him "to engage in sexual relations with Officer Brockett," or that "he would be written up if he refused to continue to cooperate with the investigation." (Chapman Decl., Dkt. No. 165-2 at 3.)
38. Brockett was terminated from employment with CDCR on March 31, 2004, as a result of the subject IAU investigation. (Chapman Decl. at 3; Brockett Decl. at ¶¶ 2, 3.) The Notice of Adverse Action sustained allegations that Brockett participated in an overly familiar relationship with plaintiff, based on their recorded verbal exchanges involving personal and sexual topics; failed to comply with established policy and procedure when plaintiff asked her to mail a letter for him; and been dishonest in her investigative interview. Although Brockett's dismissal was not based on findings that Brockett had engaged in sexual relations with plaintiff, plaintiff was noted to be a "reliable informant." (IAU Rpt. at 2-7.)
39. Brockett appealed her dismissal to the California State Personnel Board. Pursuant to hearings convened May 2, 2007, January 24, 2008, and February 25, 2008, which included testimony by Brockett, Manago and Chapman, the dismissal was sustained on November 11, 2008. (Documents Lodged Under Seal (Dkt. Nos. 237-38, 246).) The Board's findings of fact include Brockett's failure to sound an alarm when plaintiff's conduct was overtly sexual, but did not include a finding that Brockett engaged in sexual relations with plaintiff. (Dkt. No. 246-3 at 4.)
40. Brockett was at no time criminally prosecuted for violation of California Penal Code § 289.6 (making it a public offense for an employee of a state prison to engage in sexual activity with a confined, albeit consenting, adult). (Brockett Decl. at ¶ 11.)
41. On January 21, 2004, plaintiff was transferred from CSP-SAC to SVSP's EOP unit, where he remained until September 14, 2004, with the limited exception of returning to CSP-SAC on June 2, 2004 to testify before the State Personnel Board. In an administrative grievance filed on May 11, 2004 (Log No. SAC 04-0946), plaintiff alleged that he had been "the victim of Sexual Harassment and Sexual Assault" by Brockett and that, despite his transfer from PBSP to the CSP-SAC EOP program "for therapeutic reasons," where his "psychiatric symptoms [had] stabilized," he had been transferred to SVSP in retaliation for his participation in the Brockett investigation. (Dkt. No. 35-1 at 23, 27.) Plaintiff also alleged that, in February 2004, he had been approached by inmate Brian Hackett, who gave plaintiff a message from defendants Vance and Kennedy that, if plaintiff testified against Brockett, "[t]hey gonna send somebody to kill you or you kill them either way you'd never see day light or the streets again." (Id. at 29.) This grievance was reviewed, in pertinent part, by defendant B. Williams, then OAI-Northern Region Acting Special Agent in Charge, who denied the appeal, with the exception of ordering further review of plaintiff's retaliation claims. (Dkt. No. 35-1 at 26; Williams Decl. at 2-3.) Further findings supporting a denial of plaintiff's retaliation claims were issued separately by Williams and defendant Joseph in October 2005. (See Dkt. No. 193-4 at 22; Dkt. No. 165-8 at 7-8, 13-4.)
42. On July 2, 2004, while at SVSP, plaintiff was charged with conspiracy to assault staff and placed in AdSeg. (Dkt. No. 194-1 at 1.) The charges were later dismissed. (Id. at 14.) Plaintiff was placed in SVSP's Modified Program from August to September 2004. (Dkt. No. 193-4 at 16-17.)
43. On August 19, 2004, plaintiff sent the following letter to defendant Chapman, with a copy sent to the Prison Law Office (Dkt. No. 193-4 at 20-1):
I am writing to you concerning my present housing situation. On the above-stated date I was released from ASU based on . . . false charges dated June 16, 2004 and July 2, 2004 . . . of conspiracy to assault staff at SVSP . . . I was found not guilty of these false charges. You promised me that I was not going to be retaliated against if I testifyed (sic) against Officer Mary Brockett. It should be noted that, after I provided testimony against Officer Brockett, on June 2, 2004, against some prison official['] wishes, you failed to protect me as promised by (OIA). You said that after I provided testimony that CDC-Prison Officials had my back, and you told Dionne the same thing. Now after I was relieved from ASH (ICC) refused to allow me to return to (EOP) for my much need[ed] mental health treatment. I'm currently housed on "D" Facility pending transfer to High Desert State Prison. You said that I would be transferred to (CMF) to assure me that I would not be subjected to retaliation. Lt. Middlebrooks had Dr. Scramozzino to drop my level of care, in order to be transfer[red] to (CMF), due to alleged enemy in (EOP) at (CMF). I do believe that prison officials are attempting to endanger my life, by transferring me to a prison where there [are] no (EOP) to treat me for my (PTSD) and other disorders. There was a Warden to Warden agreement to officially transfer me to (CMF) as a (CCCMS) main line until the alleged enemy was transfer[red] to another . Please call (Dionne) and let her know what's going on with my transfer to (CMF). So that she will let me know at visiting. [¶ ] Thank you very much. [¶] Respectfully submitted . . . .
44. On September 14, 2004, plaintiff was transferred to HDSP.
45. On October 13, 2004, plaintiff filed an administrative grievance (Log No. SVSP-04-2845) alleging, in pertinent part, that his transfer to HDSP had been retaliatory on the part of SVSP staff; that the precipitating RVR at SVSP had since been dismissed; and that, at HDSP, plaintiff was being "denied all mental health treatment." (Dkt. No. 193-4 at 14.) As a result, plaintiff asserted, "I have been having mental health problems. The voices tell me to do crazy things." (Id. at 8, 12.)
46. In October 2004 and February 2005, staff with the Prison Law Office ("PLO") (legal representatives of the plaintiff class of inmates in Coleman v. Wilson, supra, 912
F. Supp. 1282) sent to CDCR's "Coleman Project Team" the following letters on plaintiff's behalf:
a. In an October 28, 2004 letter to the "Coleman Project Team, Health Care Services Division," regarding "Urgent Mental Health Concern (Stewart Manago, E-02564),"
PLO staff attorney Keith Wattley stated (Dkt. No. 193-4 at 18):
We have been corresponding with the above-referenced High
Desert prisoner. Mr. Manago has a lengthy record of mental health treatment and spent years in the EOP and PSU at Pelican Bay, CSP-Sacramento and Salinas Valley. He was recently removed from the EOP to CCCMS while at Salinas Valley. He was subsequently transferred to High Desert's C facility, which has been on lockdown for 15 months. Since being housed at High Desert Mr. Manago has been experiencing ongoing racial tension and is not taking prescribed medications because he wants to be prepared to defend himself. He reports increased voices and other symptoms.
Plaintiffs remain very concerned about the impact of lengthy lockdowns on mental health programs. This patient is obviously decompensating and must be immediately transferred to a facility with the appropriate EOP level of care.
b. In a February 16, 2005 letter to the "Coleman Project Team, Health Care Services Division," regarding "Urgent Mental Health Concern (Stewart Manago, E-02564)," Della Burke, Litigation Assistant to PLO staff Keith Wattley, wrote (Dkt. No. 193-4 at 19):
We continue to be concerned about the treatment of the above-referenced High Desert prisoner. As we previously informed you, Mr. Manago has a lengthy record of mental health treatment and spent years in the EOP and PSU at Pelican Bay, CSP-Sacramento and Salinas Valley. He was recently removed from the EOP to CCCMS while at Salinas Valley. He was subsequently transferred to High Desert's C facility, which has been on extended lockdowns over the last couple years. Since being housed at High Desert Mr. Manago has been experiencing tensions, and he stopped taking prescribed medications. He started reporting increased voices and several other symptoms.
Mr. Manago now informs us that he was sent to the CTC at the end of January and placed in five-point restraints. He states that he has now been placed in administrative segregation, although he does not explain why.*fn15
Plaintiffs asked that Mr. Manago be immediately transferred to a facility with the appropriate EOP level of care in our October 28, 2004 letter. Please response (sic) and inform us if he has been endorsed for transfer and to what facility he will be transferred.
47. On April 6, 2005, plaintiff was transferred from HDSP to CSP-SAC, based on his "alleged mental health needs;" plaintiff was endorsed for the "EOP/ASU HUB" due to the pending RVR against him for conspiracy to assault staff (see n.15, supra), with instructions to be seen by the Institutional Classification Committee ("ICC") within 10 days. (Dkt. No. 194-1 at 2,16.)
48. On March 26, 2006, plaintiff filed an administrative grievance (Log No. SAC 06-0783), requesting that CSP-SAC prison officials and mental health staff transfer plaintiff to Atascadero State Hospital ("ASH"), for "optimal [mental health] treatment," based on plaintiff's allegations that he had been diagnosed with "a post-traumatic stress disorder amongst other disorders." (Dkt. No. 35-2 at 4, 6.) Plaintiff explained that he had been the victim of sexual assault by CO Brockett while housed at CSP-SAC, and that his cooperation in the Brockett investigation had resulted in acts of "retaliation and retribution" by mental health and correctional staff, including false rule violations and illegal placement in administrative segregation. (Id.) As a result, plaintiff explained, he was "continuing to experience" symptoms of stress, anxiety, depression, paranoia, nightmares, vomiting, rage, flashbacks and hearing voices. (Id. at 6.) Plaintiff's grievance was reviewed, in pertinent part, by defendants J. Martin (CSP-SAC Senior Supervising Psychologist), M. Jaffe (CSP-SAC Chief Psychiatrist), and K. Kelly (CSP-SAC Chief Psychologist and Health Care Manager), and denied at the Director's Level on September 18, 2006.
49. On June 12, 2006, plaintiff filed another administrative grievance (Log No. SAC 06-01729), alleging perjury, "fraud and falsication (sic) of official state records," by "M. Jaffe, M.D., Chief Psychiatrist, R. Kelly, Ph.D., Health Care Manager, and J. Martin, Ph.D., Senior Psychologist at CSP-Sacramento." (Dkt. No. 35-2 at 23.) Plaintiff challenged the findings of these officials, when they reviewed plaintiff's prior grievance (Log No. SAC 06- 00783), that plaintiff did not have PTSD; plaintiff also challenged these defendants' refusal to address plaintiff's claims of stress and anxiety due to his alleged sexual abuse by Brockett and the ...