United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
By order filed June 19, 2014, plaintiff was granted thirty days to file an opposition to defendant's pending motion for summary judgment (ECF No. 47). The thirty day period has now expired, and plaintiff has not responded to the court's order. Moreover, having reviewed plaintiff's own motion for summary judgment (ECF No. 44), the court concludes that it fails to create a genuine dispute of material fact. See Fair Housing Council of Riverside County, Inc. v. Riverside Two , 249 F.3d 1132, 1136 (9th Cir. 2001). The undersigned reviews the merits of the parties' cross-motions below.
II. Motions for Summary Judgment
This prisoner action brought pursuant to 42 U.S.C. § 1983 proceeds on the Second Amended Complaint (SAC) (ECF No. 29), in which plaintiff alleges that defendant Miramontes removed $1267.00 from his inmate trust account without "the proper procedural safeguards" or giving him an "opportunity to be heard." (Id.) Plaintiff alleges that he had "a full ownership interest in the tax refunds credited to [his] inmate trust account" when these funds allegedly were removed by Miramontes. (Id.) The undersigned found the SAC to state a procedural due process claim against Miramontes. (ECF No. 33.)
The following facts are undisputed:
Plaintiff is a former state prisoner who, during the relevant period in 2011, was incarcerated at Deuel Vocational Institution (DVI) in Tracy, California. (DUF 1.) At that time, defendant was the Correctional Business Manager at DVI. (DUF 2.) In 2011, defendant supervised the Accountant I Supervisor who was the department head of the DVI trust office. (DUF 3.) Defendant's job duties did not include processing checks or corresponding with the Internal Revenue Service (IRS). (DUF 4.)
Under CDCR policy and Penal Code section 5008, inmate funds are kept in inmate trust accounts, which are administered by the trust office at each institution. (DUF 5.) For tax refund checks, the procedure is to follow Title 15 and the Department Operations Manual (DOM) and verify all tax refunds before they are deposited. (DUF 6.)
In 2011, plaintiff received two tax refund checks totaling $1, 267.00. The first, for $829.00, was deposited on March 4, 2011. The second, for $438.00, was deposited on April 15, 2011. (DUF 7-9; ECF No. 44 at 2.)
On May 11, 2011, an Account Clerk II at DVI sent a fax to the IRS to verify that the checks were valid. (DUF 10.) The IRS responded that the checks were issued in error and requested that the checks be returned. (DUF 11; see Miramontes Decl., Ex. A, ECF. No. 47-4.)
On June 10, 2011, a total of $1, 267.00 was withdrawn from plaintiff's trust account and returned to the IRS. (DUF 12.) The funds were removed without plaintiff's "consent, signature, or court order." (ECF No. 44 at 2.) Nor was plaintiff afforded a hearing on whether the funds should be removed. (Id. at 3.)
Defendant did not learn of the transactions involving plaintiff's account until after they had happened. (DUF 13.) On July 20, 2011, plaintiff was interviewed regarding CDCR 602 Appeal No. DVI-11-783 concerning the withdrawals from his account. As Acting Associate Warden for Business Services, in her role as reviewer at the first level, defendant signed the appeal decision. (ECF No. 44 at 9.) Neither party submits this ...