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Rhodes v. Robinson

United States District Court, E.D. California

September 2, 2014

KAVIN M. RHODES, Plaintiff,
v.
M. ROBINSON, et al., Defendant.

FINDINGS AND RECOMMENDATIONS DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCUMENT 296)

DENNIS L. BECK, Magistrate Judge.

Plaintiff Kavin M. Rhodes ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 4, 2002.

After numerous appeals, a trial and significant law and motion practice, this action is now proceeding on Plaintiff's Third Amended Complaint ("TAC"), filed on June 9, 2011, for multiple claims of retaliation in violation of the First Amendment. The remaining claims are: (1) Counts One and Two against Defendants Pazo, Tidwell, and Wenciker; (2) Count Three against Defendant Lopez; (3) Count Six against Defendant Chapman; (4) Count Eight against Defendants Todd and Lopez; (5) Count Ten against Defendants Lopez, Matzen, and Garza; and (6) Count Eleven against Defendant Lopez.

On August 5, 2013, Defendants filed this Motion for Summary Judgment.[1] Plaintiff opposed the motion on January 29, 2014, and Defendants filed their reply on February 20, 2014. The motion is deemed submitted pursuant to Local Rule 230( l ).

I. LEGAL 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 Mutual 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, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, 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. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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 (1986)).

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 Plaintiff's filings must be liberally construed because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

II. SUMMARY OF PLAINTIFF'S ALLEGATIONS[2]

Plaintiff is currently incarcerated at Kern Valley State Prison in Delano, California. The events at issue occurred in 2002 and 2003, while Plaintiff was housed at the California Correctional Institution ("CCI") in Tehachapi, California.

Counts One and Two

Plaintiff alleges that on December 26, 2001, he placed the complaint in Rhodes v. Robinson in the prison's Legal Mail Box. On January 2, 2002, Defendants Pazo, Tidwell and Wenciker approached Plaintiff. Tidwell stated, "I know you filed a lawsuit." Fearing for his safety, and because he had not yet received confirmation from the Court, Plaintiff denied having filed the action. Plaintiff alleges that Defendant Tidwell tried to intimidate him and make him turn over his only copy of the action. Plaintiff refused to give them the copy, and Defendants Pazo, Tidwell and Wenciker then went into Plaintiff's cell to search for the complaint. They could not find the complaint "amongst Plaintiff's voluminous amount of legal property." TAC, at 2. Defendants then confiscated Plaintiff's carrying case for his CD player, sunglasses, AC adapter, pens, pencils and writing tablets.

On January 3, 2002, Defendants Tidwell and Wenciker went to Plaintiff's cell door. Defendant Tidwell lied and told Plaintiff that he needed to escort him to the Unit Office because the Lieutenant wanted to speak with him. While en route to the office, Plaintiff saw Defendant Pazo walking towards his cell, pushing a large laundry cart. Plaintiff was not taken to see the Lieutenant, but was instead locked in "clinic holding" for several hours. When Plaintiff returned to his cell, he discovered that Defendants Tidwell, Wenciker and Pazo had confiscated all of his legal property in excess of three large boxes. They sent the legal property to R&R and it was not returned to Plaintiff. When Plaintiff submitted an appeal on the issue, it was assigned to Defendant Lopez, who was named as a defendant in the civil rights action.

Plaintiff alleges that these actions caused him to fear the exercise of his First Amendment right to petition the government for redress of grievances.

Count Three

On January 13, 2002, Plaintiff appeared at Classification Committee chaired by Defendant Lopez. Plaintiff alleges that Defendant Lopez fired him from his inmate job assignment as a SHU legal clerk in retaliation for naming him as a defendant and submitting an appeal related to his property.

Plaintiff states that the firing was done without explanation and caused Plaintiff to fear the exercise of his First Amendment right to petition the government for redress of grievances.

Count Six

Plaintiff appealed Defendant Lopez's retaliatory firing, and Defendant Chapman responded to the appeal with "further retaliations" by taking Plaintiff back to Classification less than thirty days after his January 13, 2002, appearance. Plaintiff alleges that Defendant Chapman put Plaintiff up for transfer, but as pretext, told Plaintiff that he could work in the main library. However, while working in the library, Plaintiff was constantly harassed by Defendants Tidwell and Pazo and was prohibited from doing any legal work. Plaintiff alleges that the transfer was subsequently cancelled.

On January 8, 2003, Defendant Chapman brought Plaintiff back to Classification to remove Plaintiff from the main library. As Plaintiff got up to leave, he heard C. Nelson ask Defendant Chapman why Plaintiff was on single cell status. Soon after, Plaintiff was evaluated by Dr. Keen. Dr. Keen wrote a chrono for Plaintiff to retain his single cell status, but he told Plaintiff that he'd probably be transferred.

Plaintiff states that this conduct caused him to fear the exercise of his First Amendment right to petition the government for redress of grievances.

Count Eight

On February 27, 2003, Plaintiff was issued a false CDC-115 authored by Lt. Ramos for "Attempting to Cause Conditions Likely to Threaten Institutional Security." On February 28, 2003, Plaintiff saw Defendant Lopez, who angrily stated, "You know who I am, and I know who you are. The 115 is flemsy [sic] and you'll go to Committee on 3-6-03!" TAC, at 9.

On March 4, 2003, Plaintiff received a revised copy of the 115, which listed the charge as "Threatening to Kill a Cellmate." At Committee on March 6, 2003, Defendant Lopez admitted that he reclassified the 115, which Plaintiff alleges could lead to a lengthy SHU term. At the hearing, Defendant Todd was extremely hostile to Plaintiff and threatened to have Plaintiff committed to a psychiatric facility if Plaintiff continued to file grievances. Plaintiff alleges that up to that point, Defendant Todd had denied all of his grievances against Defendant Lopez.

Plaintiff states that this conduct caused him to fear the exercise of his First Amendment right to petition the government for redress of grievances.

Count Ten

On April 2, 2003, while Plaintiff was in the hole, Ad-Seg Sergeants Matzen and Garza, in retaliation for an appeal alleging misconduct against Defendant Lopez and other officers, came to Plaintiff's cell. Defendant Matzen asked Plaintiff if he was sure that he wanted to proceed further with the appeal. Defendant Garza was putting on his black leather gloves, trying to intimidate Plaintiff. Plaintiff said that he wanted to continue with the appeal, and less than five seconds after they left, Defendant Lopez appeared at Plaintiff's cell, with Defendants Matzen and Garza in tow. Defendant Lopez shouted to Plaintiff to get out of his cell because he had contraband, and threatened that if he didn't come out, they would drag him out and kick his ass. Defendant Lopez told Plaintiff that he was getting a 115 and that he'd go back to Committee for a transfer. Plaintiff alleges that Defendant Lopez created conditions to justify a cell-extraction, in retaliation for filing his grievance.

Plaintiff states that this conduct caused him to fear the exercise of his First Amendment right to petition the government for redress of grievances.

Count Eleven

On April 4, 2003, Defendant Lopez had another officer fabricate a lockup order stating that Plaintiff refused direct orders to exit his cell and be taken back to general population. Plaintiff contends that this was done in retaliation for his appeal requesting that he be retained in the hole to protect from further retaliation. Plaintiff then received a false 115. The first hearing officer assigned to the charge refused to say that any direct orders were issued. On May 22, 2003, Plaintiff was found guilty without any evidence. On May 23, 2003, Plaintiff was interviewed on an unrelated matter and the officer admitted that he after he wrote the 115, he discovered that no direct orders had been given. In the interim, Defendants Lopez and Todd had taken Plaintiff back to Classification, in absentia, and released Plaintiff back to the general population. Shortly thereafter, Plaintiff received a fabricated Classification Chrono, dated April 3, 2003, and authored by Defendants Lopez and Todd, among others, stating that Plaintiff agreed to the Committee's actions.

Plaintiff states that this conduct caused him to fear the exercise of his First Amendment right to petition the government for redress of grievances.

III. UNDISPUTED MATERIAL FACTS[3]

Plaintiff is an inmate in the custody of the California Department of Corrections and Rehabilitation. TAC, 1.

The events at issue occurred while Plaintiff was housed at CCI. TAC, at 1.

Counts One and Two

On January 2 and 3, 2002, Plaintiff was housed in Facility IV-A.[4] Ouye Decl. at 3. Defendants Pazo, Tidwell and Wenciker were working as Search and Escort Officers in Facility IV-A at CCI on January 2 and 3, 2002. Pazo Decl. ¶ 1; Tidwell Decl. ¶ 1; Wenciker Decl. ¶ 1.

On January 2, 2002, Defendants Pazo and Tidwell searched Plaintiff's cell. Defendants Pazo, Tidwell and Wenciker had a regular practice of giving a cell search receipt for any property confiscated from an inmate's cell, and they gave Plaintiff a cell search receipt for the January 2, 2002, search. Pazo Decl. ...


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