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Nunez v. Porter

United States District Court, E.D. California

March 26, 2014

CURTIS NUNEZ, JR., Plaintiff,
v.
K. M. PORTER, et al., Defendants.

AMENDED ORDER and FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Preface

Pursuant to the court's review of defendants' objections, filed January 24, 2014, to the undersigned's Order and Findings and Recommendations filed January 10, 2014, the undersigned issues this Amended Order and Findings and Recommendations. The Order and Findings and Recommendations filed January 10, 2014 (ECF No. 33), is vacated.[1]

II. Introduction

Plaintiff is a state prisoner, currently incarcerated at Calipatria State Prison (CSP), who proceeds without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. ยง 1983. This case proceeds on the original complaint, against defendants K.M. Porter, D. Till, S. Norton, and D. Caraballo, each a correctional sergeant at California State Prison-Sacramento (CSP-SAC).

Presently pending is defendants' motion to dismiss the following claims: (1) plaintiff's First Amendment claims against defendants Caraballo, Till and Norton for failure to exhaust administrative remedies; (2) plaintiff's First Amendment claim against defendant Caraballo for failure to state a claim; and (3) plaintiff's Fourteenth Amendment claims against all defendants for failure to state a claim. Defendants concede that the complaint states a potentially cognizable and administratively exhausted First Amendment claim against defendant Porter.

For the reasons that follow, this court recommends that defendants' motion be granted.

III. Defendants' Motion to Strike

Plaintiff filed an opposition (ECF No. 24) to defendants' motion to dismiss (ECF No. 20); defendants filed a reply (ECF No. 28). Within a week of filing his opposition, plaintiff submitted an "Amendment to Opposition" (ECF No. 26), in which he requested that the court consider three new exhibits, and plaintiff's refined legal arguments, together with plaintiff's original opposition. Defendants move to strike plaintiff's Amendment (ECF No. 29); plaintiff filed a response (ECF No. 30).

Defendants assert that plaintiff's Amendment should be stricken because filed outside the briefing deadlines set by the court. Plaintiff responds that his Amendment is better characterized as a "Supplement, " because it contains newly acquired evidence that is relevant to the court's decision, and the submission of this evidence demonstrates plaintiff's attempt to provide the most complete record possible. Moreover, plaintiff argues, defendants do not assert that they have been prejudiced by plaintiff's additional briefing and exhibits.

Review of plaintiff's opposition and proposed Amendment, together with their respective exhibits, demonstrates that the court's consideration of both filings are critical to a thorough assessment of the merits of defendants' motion to dismiss, particularly based on failure-to-exhaust grounds.[2] Although the Local Rules do not provide for the unauthorized submission of an amendment or supplement to an opposition, see generally Local Rule 230(l), the court's consideration of both plaintiff's opposition and Amendment is supported by Ninth Circuit authority concerning the appropriate evaluation of a motion to dismiss for failure to exhaust administrative remedies, see n.1, supra, and good cause grounded in plaintiff's pro se status and belated finding of pertinent documents.

Accordingly, defendants' motion to strike plaintiff's Amendment is denied.

IV. The Complaint

The complaint alleges that defendants Porter, Till, Norton, and Caraballo, acting in retaliation against plaintiff for assisting another inmate with prison grievances and civil litigation, and/or for challenging these matters in an administrative grievance, each filed, ratified or otherwise endorsed false disciplinary charges against plaintiff, or sought to intimidate plaintiff to withdraw his grievance.

The complaint alleges that, while plaintiff was incarcerated at CSP-SAC, in the Correctional Treatment Center (CTC) (also referred to as the "Taj Mahal"), he served as Chairman of the "Men's Advisory Counsel" (sic) (MAC), and was a recognized "Prisoner Laymen" (sic), known for his legal advocacy skills. Plaintiff alleges that inmate Giraldes, also housed in the CTC, "requested that plaintiff raise the issue of obtaining the Antenna Wall Cable System for the inmates housed in the CTC at a Warden's Meeting, so they could receive regular [programming] over the air channels." (Complaint, ECF No. 1 at 3.) When the administrative request to the warden proved unsuccessful, plaintiff assisted Giraldes in filing a related civil action. Allegedly in retaliation for this advocacy, defendant Porter, a Correctional Sergeant, authored three allegedly false disciplinary "write-ups" against plaintiff. Plaintiff asserts that "two of the three write-ups resulted in CDC-128A, Custodial Counseling Chronos, ' which by (CDCR) [California Department of Corrections and Rehabilitation] policy cannot be challenged for the purpose of having them removed from one's file." (Id. at 5.) The complaint alleges that this action resulted in a loss of plaintiff's privileges, and will prejudice him at his next Parole Board Hearing.

The complaint identifies the following two "write-ups, " without clearly explaining the third: (1) Rules Violation Report (RVR) Log No. A-11-07-002 ("Out of Bounds"); and (2) RVR Log No. A-11-08-003 ("Job Performance"). However, the exhibits attached to plaintiff's opposition and Amendment identify the following pertinent disciplinary matters:

1. CDC 128-A (Custodial Chrono) Log No. FA8-208, dated May 10, 2011: Prepared by Correctional Sergeant Porter, finding that plaintiff had talked through the back window of his workplace, the Canteen, to other inmates, despite having been previously and repeatedly informed that the area is "Out-of-Bounds for loitering." (ECF No. 24 at 26.)
2. RVR Log No. A-11-07-002 ("Out-of-Bounds"), dated July 11, 2011: Prepared by Correctional Sergeant Porter, reporting that plaintiff had again talked through the back window of the Canteen to another inmate, despite prior disciplinary action for the same violation, and despite the fact that the area is clearly designated "out of bounds." Porter stated that he "again" spoke with Canteen Manager Harmon of the need to prevent such unauthorized conduct. On July 30, 2011, Correctional Sergeant Till found plaintiff "guilty" of the charge. Plaintiff received a CDC-128A (Counseling Chrono) and 5-day loss of weekend yard privileges, without credit forfeiture. (See ECF No. 24 at 22-3; see also ECF No. 26 at 11-2.)
3. RVR Log No. A-11-08-003 ("Job Performance"), dated August 8, 2011: Prepared by Correctional Sergeant Porter, reported that plaintiff had posted an unauthorized sign in the Canteen window that read: "Do not approach or talk to the canteen worker at this window subject to a CDC-115 per Sergeant Porter." (ECF No. 24 at 24; see also ECF No. 26 at 13.) Canteen Manager Harmon reportedly stated that plaintiff "does canteen money checks for the inmates on the yard out the back window which is a violation of current policy." (Id.) Sergeant Porter opined that "Canteen Manager Harmon is still allowing Nunez to break the rules of working in A-Facility Canteen, " and requested that plaintiff "be removed from the position of Canteen Clerk A-Facility... due to his constant violation of the rules of his job." (Id.) On August 10, 2011, Correctional Sergeant Norton found plaintiff "guilty" of the charge. Plaintiff was assessed "10 days loss of evening dayroom and telephone privileges, " and "10 day loss of weekend yard program, " and was referred to the Institutional Classification Committee (ICC) for removal from his job assignment. (ECF No. 26 at 13-4.)
4. RVR Log No. A-11-08-003 led to Sergeant Porter's completion of another CDC 128-A (Counseling Chrono) Log No. FA8-205, dated August 15, 2011. (Id. at 27.)

The complaint alleges that defendant Till, also a Correctional Sergeant, was the hearing officer assigned to review Porter's write-up against plaintiff for being "Out of Bounds" while working at the canteen (Log No. A-11-07-002). The complaint alleges that defendants Till and Porter are "friends, " and that defendant Till "was often in the company of defendant Porter, " and therefore biased against plaintiff. (ECF No. 1 at 6, 7.) The complaint alleges that, in response to plaintiff pleading "not guilty" to the charge, Till stated: "[A]lthough I know that you are innocent and were at your job assignment, I'm going to find you guilty and make you win on appeal. This is what you get for backing that asshole Giraldes, and there will more if you keep up your shit and don't wise up....'" (Id. at 6.) Plaintiff contends that defendant Till "used his position as the Disciplinary Hearing officer for this write-up to retaliate against plaintiff for him assisting inmate Giraldes as a MAC Member...." (Id.) The complaint alleges that this disciplinary action was later dismissed by the Chief Disciplinary Officer because the allegations failed to meet the institutional criteria for "Out of Bounds." (Id. at n.2.)

The complaint further alleges that, on August 10, 2011, defendant Norton, another Correctional Sergeant, and also an alleged friend of Porter, was assigned as the hearing officer to consider plaintiff's disciplinary write-up concerning his "Job Performance" (Log No. A-11-08-003). The complaint alleges that plaintiff's "supervisor, Ms. Harmon[, ] clearly stated to defendant Norton on the day of the hearing that she asked plaintiff to put up the sign that led to the Poor Job Performance write-up.' He [Norton] did not allow her testimony at the hearing. Norton stated, I don't care what you have to say, you can't help him....'" (Id. at 8.) The complaint alleges that Norton "knowingly found plaintiff guilty for the write-up authored by defendant Porter, even though he was told by plaintiff's civilian work supervisor that she instructed plaintiff to put the sign up." (Id. at 7.) The complaint alleges that Norton, like Till, was a friend of Porter, and acted in tandem with the other defendants to retaliate against plaintiff for exercising his First Amendment rights.

The complaint next alleges that plaintiff filed an administrative grievance ("Form 602 appeal") asserting that defendants were retaliating against plaintiff for the exercise of his First Amendment rights. Defendant Caraballo, a Correctional Sergeant, was assigned as the First Level reviewer of the grievance. Plaintiff alleges that Caraballo commenced the First Level Review on October 6, 2011, in the prison canteen. However, on October 7, 2011, defendant Caraballo allegedly summoned plaintiff to the CTC, where he asked plaintiff more questions in the presence of defendant Till and another, unnamed, Correctional Sergeant; Till was seated behind plaintiff. The complaint alleges that Caraballo and Till tried to persuade plaintiff to cancel the grievance, as he had allegedly tried the day before. When plaintiff refused, Caraballo allegedly asked, "Who was the Hearing Officer again on the Out of Bounds write-up?'" Plaintiff was required to identify Till. Caraballo denied plaintiff's grievance in a written decision issued October 11, 2011. (ECF No. 1 at 17-8.) The complaint alleges that Caraballo and Till sought to intimidate plaintiff at the hearing, and that this conduct, together with Caraballo "upholding" the allegedly unsupported "guilty finding" on the Out-of-Bounds charge, [3] were retaliatory acts against plaintiff for using the administrative appeals process.[4]

Based on these alleged facts, the complaint alleges in conclusion that "[a]ll defendants violated plaintiff's protected conduct under the Federal Constitutional (sic), which are rights guaranteed to plaintiff [as] a state prisoner under the First and Fourteenth Amendments...." ...


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