ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS AND GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ECF Nos. 76, 93
Plaintiff Alfred C. Lombardelli ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and informa pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants E. Ortiz, S. Smyth, I. Sanchez, K. Halsey, K. Carter, and R. Vogel. On January 13, 2012, Defendants Carter, Sanchez, Halsey, and Vogel filed a motion for summary judgment. ECF No. 76. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 29, 2012, the Magistrate Judge filed a Findings and Recommendations which was served on the parties and which contained notice to the parties that any objection to the Findings and Recommendations was to be filed within fourteen days. ECF No. 93. Plaintiff filed an Objection to the Findings and Recommendations on September 4, 2012. ECF No. 100. The Court will construe the objections as timely filed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court will adopt in part the Magistrate Judge's Findings and Recommendations. The Court provides the following additional analysis to address Plaintiff's objections.
A. February 7, 2007 Incident
Plaintiff contends that the headaches were caused by a housing assignment transfer. The Magistrate Judge found that Plaintiff is not a medical professional and thus cannot state the cause of his headaches. Plaintiff contends that Plaintiff can know whether he has headaches. However, the Magistrate Judge did not find that Plaintiff did not have headaches.
The Magistrate Judge found that Plaintiff's housing assignment transfer was not done by Defendant Halsey for retaliatory purposes, finding that mere allegations of conspiracy was not sufficient.*fn1 Plaintiff contends that he suffered headaches as a result of the transfer, and that it is irrelevant who transferred Plaintiff because Plaintiff sufficiently demonstrated the formation of an agreement based on Defendants Halsey, Vogel, and Ortiz's statements. Plaintiff declares that he overheard Defendants Halsey and Ortiz discuss moving Plaintiff to another block in order to take away his job assignment. Pl. Decl. ¶ 6.
Plaintiff has not presented evidence which would indicate that Defendant Halsey authorized the move. However, there is a sufficient dispute of material fact as to whether Defendants Halsey and Ortiz were the impetus for the move, and thus took adverse action against Plaintiff. Plaintiff has raised a genuine dispute of material fact as to this claim.*fn2
B. March 27, 2007 Incident
Plaintiff contends that Defendant Halsey's confiscation of a book that Plaintiff had borrowed from another inmate was retaliatory. The Magistrate Judge found that confiscation of property that had been borrowed from another inmate was in furtherance of a legitimate penological goal. Section 3192, Title 15 of the California Code of Regulations prohibits borrowing of personal property between inmates. There are no exceptions listed. Plaintiff contends that Defendant Halsey's motives were retaliatory. Plaintiff contends that Defendant Halsey wrote Plaintiff up for disruptive behavior, which appears to have been a CDC-128 chrono.*fn3 That disruptive behavior concerned the borrowing of personal property from another inmate, and Plaintiff's disagreement with staff giving him a direct order. Plaintiff fails to raise a genuine dispute of material fact that he was written up in furtherance of a legitimate penological goal. Plaintiff also fails to demonstrate how a CDC-128 chrono constitutes adverse action for the purposes of retaliation. Plaintiff's objections are denied.
C. July 28, 2008 Incident
The Magistrate Judge found that Plaintiff failed to present evidence to raise a genuine dispute of material fact regarding a retaliatory motive by Defendant Carter in authoring a Rules Violation Report against Plaintiff. Plaintiff maintains that the Court should consider the chronological history of facts. In Plaintiff's declaration, Plaintiff declares that Defendant Smyth made it clear to Plaintiff that Defendant Carter was his "lil bulldog" and that Defendant Smyth had "ghost wrote" the Rules Violation Report.
The Court finds that there is a genuine dispute of material fact with
regards to a retaliatory motive by Defendant Carter. Based on
Plaintiff's declaration, Defendant Smyth had implied to Plaintiff that
Defendant Carter's RVR was written because of Plaintiff's prior First
Amendment activities. Additionally, inmate Mata declared that a few
days prior to the July 28, 2008 incident, Defendant Carter had told
inmate Mata that Plaintiff was going to the hole real soon, and that
she was aware of Plaintiff's prior lawsuit against Defendant Smyth.
Mata Decl. ¶ 20, ECF No. 85. Inmate Mata's declaration is sufficient
under Rule 56(c)(4) of the Federal Rules of Civil Procedure. This
claim will also proceed against Defendant Smyth for taking the
action of "ghost writing" a false Rules Violation Report against
D. August 18, 2008 Incident
The Magistrate Judge found that Defendant Sanchez should be dismissed from this action because there was no retaliatory motive by Defendant Sanchez in authoring the Rules Violation Report. Plaintiff contends that Defendant Sanchez should ...