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Howard v. Deazevedo

United States District Court, E.D. California

July 11, 2014

TIMOTHY HOWARD, Plaintiff,
v.
D. L. DeAZEVEDO, et al., Defendants.

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE DENIED (Doc. 56)

OBJECTION DEADLINE: FIFTEEN DAYS RESPONSE DEADLINE: FIFTEEN DAYS

SHEILA K. OBERTO, Magistrate Judge.

Findings and Recommendations

I. Procedural History

Plaintiff Timothy Howard ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 20, 2011. This action for damages is proceeding on Plaintiff's amended complaint against Defendants DeAzevedo, Paz, and Stephens for retaliating against Plaintiff by searching his cell and confiscating or destroying his personal property, in violation of the First Amendment; against Defendant DeAzevedo for retaliating against Plaintiff by issuing him a false Rules Violation Report ("RVR"); and against Defendant James for depriving Plaintiff of his right to a fair disciplinary hearing by an impartial decision maker, in violation of the Due Process Clause of the Fourteenth Amendment. (Docs. 9, 11, 14, 28, 33.)

The events giving rise to Plaintiff's federal constitutional claims occurred in March and April 2010 in the E-1 Administrative Segregation Unit ("ASU") at California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California. At the time of the events, Defendants DeAzevedo, Paz, and Stephens were Correctional Officers and Defendant James was a Correctional Lieutenant.

On October 19, 2013, after the close of discovery and in compliance with the scheduling order, Defendants DeAzevedo, Paz, Stephens, and James ("Defendants") filed a motion for summary judgment. Fed.R.Civ.P. 56(a). (Docs. 56-57.) Plaintiff filed an opposition on November 25, 2013, and Defendants filed a reply on December 3, 2013.[1] (Docs. 62, 66, 68.) Defendants' motion was submitted upon the record without oral argument, Local Rule 230( l ), and for the reasons which follow, the Court recommends the motion be denied based on the existence of genuine issues of material fact, Brodheim v. Cry, 584 F.3d 1262, 1267 (9th Cir. 2009).

II. Summary Judgment Standard

Any party may move for summary judgment, and 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) (quotation marks omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, although it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986)). If Defendants meet their initial burden, the burden then shifts to Plaintiff "to designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to "show more than the mere existence of a scintilla of evidence." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).

However, in judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S.Ct. 1566 (2012). The Court determines only whether there is a genuine issue for trial and in doing so, it must liberally construe Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

III. Discussion

A. Defendants' Evidentiary Objections

As an initial matter, the Court overrules Defendants' hearsay objections to Correctional Officer F. Carreon's statement that Defendant James screened Plaintiff's witness questions and wrote the answers himself and to inmate Blake's statement regarding what he heard. (Doc. 68-1, Evid. Objs. 1, 2.) "At summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial." Nevada Dep't of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001)) (internal quotations omitted). The focus is on the admissibility of the evidence's contents, not its form, and Officer Carreon and inmate Blake can testify at trial regarding what they saw, heard, or knew.[2] Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004); Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).

With respect to Defendants' objection that Officer Carreon's statement is not offered in a declaration signed under penalty of perjury, Plaintiff's amended complaint is signed under penalty of perjury and it must be considered as evidence to the extent it is based on Plaintiff's personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004); cf. Fonseca, 374 F.3d at 846 (declarations containing hearsay are admissible for summary judgment purposes if they can be presented in an admissible form at trial). Further, Plaintiff's declaration attesting to Officer Carreon's statement is Exhibit W to Plaintiff's opposition.

With respect to the third objection, in resolving Defendants' motion for summary judgment, it is unnecessary for the Court to consider Plaintiff's assertion that additional declarations he obtained from other inmates were stolen from his cell by Defendant DeAzevedo. Therefore, the Court does not reach Defendants' objection to that evidence. (Evid. Obj. 3.)

B. Retaliation Claims Against Defendants DeAzevedo, Paz, and Stephens

1. Cell Search on March 9, 2010

a. Plaintiff's Claim

In his verified amended complaint, Plaintiff alleges that on March 8, 2010, he and four other inmates held their exercise cages "hostage" by refusing to exit the cages until they were allowed to speak with Lieutenant Childs and Sergeant Plunkett about the abuses of prisoners' rights by Defendants DeAzevedo, Paz, and Stephens, and other staff members.[3] (Doc. 9, Amend. Comp., ¶ 12.)

On March 9, 2010, during the time Plaintiff was using the ASU exercise yard, Defendants DeAzevedo, Paz, and Stephens retaliated against him for complaining about them by searching his cell and confiscating his canteen items and legal papers, which left his cell destroyed in the process. When Plaintiff returned from the exercise yard and saw the condition of his cell, he refused to give up his handcuffs to his escort, Officer Hopkins. Sergeant Plunkett arrived and told Plaintiff he needed the handcuffs and Plaintiff could write an inmate appeal, which Plunkett would place on the desk of Defendant James. Plaintiff complied and thereafter drafted an inmate appeal, which Sergeant Plunkett placed on Defendant James' desk, along with the appeals by two other inmates whose cells were also tossed for complaining the previous day. However, Defendant James did nothing about the appeals.

b. Parties' Positions

1) Defendant DeAzevedo, Paz, and Stephens' Version of Events

Defendants DeAzevedo, Paz, and Stephens move for summary judgment on the retaliation claim against them on the grounds that they did not search Plaintiff's cell on March 9, 2010, and they were not aware Plaintiff had submitted any complaints against them.

Defendants DeAzevedo and Stephens attest that they were not at SATF on March 8, 2010, when Plaintiff complained to Lieutenant Childs and Sergeant Plunkett; on March 9, 2010, they were not aware of any complaints against them by Plaintiff; and they did not search Plaintiff's cell or remove any property on March 9, 2010. (Doc. 56-2, Motion, Def. Ex. B, Paz Dec., ¶¶ 2, 3 & Def. Ex. C, DeAzevedo Dec., ¶¶ 2-4.) Defendant Paz attests that on March 9, 2010, he was not aware of any complaints against him by Plaintiff, and he does not recall searching Plaintiff's cell or removing any property from it on March 9, 2010. (Def. Ex. A, Paz Dec., ¶¶ 2, 3.)

Defendants argue that Plaintiff's retaliation claim assumes they had knowledge that he complained about them to Lieutenant Childs and Sergeant Plunkett on March 8, 2010, but on March 9, 2010, they were not aware of any complaints. Furthermore, Defendants deny searching Plaintiff's cell or removing any property on March 9, 2010.

2) Plaintiff's Version of Events

In response, Plaintiff contends that Defendant Paz was present on March 8, 2010, when he and other inmates complained about Paz and other guards to Lieutenant Childs and Sergeant Plunkett; and that on March 9, 2010, Defendants DeAzevedo, Paz, and Stephens searched the cells of Plaintiff and others complaining ...


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