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Ross v. Latraille

United States District Court, E.D. California

September 3, 2014

ALVIN ROSS, Plaintiff,
v.
D. LATRAILLE, et al., Defendants.

ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 41)

GARY S. AUSTIN, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).[1] Pending before the Court is Defendant Callow's motion for summary judgment. Plaintiff has opposed the motion.[2]

I. Procedural History

This action proceeds on the November 19, 2009, first amended complaint. Plaintiff, currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) at CSP Solano, brings this action against defendant correctional officials employed by the CDCR at CSP Corcoran. Plaintiff names the following individual defendants: Lieutenant J. Callow and Sergeant Latraille. On March 25, 2011, an order was entered, finding that the first amended complaint stated a claim for relief against Defendant Callow for retaliation in violation of the First Amendment and against Defendant Latraille for a state law claim of assault. Both Defendants have filed the motion for summary judgment that is before the Court. Plaintiff has opposed the motion. Defendants filed a reply.

II. Allegations

The events at issue occurred while Plaintiff was housed at CSP Corcoran. On November 8, 2007, while Plaintiff was working in the Program Office making a phone call, Sgt. Latraille entered the office and asked Plaintiff what he was doing and who he was talking to, remarking in a negative tone that it seemed Plaintiff had been on the phone for a long time. Plaintiff responded that he was "getting the cell searches" and had an officer on the phone, then asked Sgt. Latraille if he wanted to check on him, extending his left arm and offering the phone to Sgt. Latraille. Sgt. Latraille struck Plaintiff's left hand, nearly knocking the phone out of his hand, stating, "I don't need to see who's on the phone." One of Plaintiff's fingers was cut, causing minor bleeding. No medical report was made. Plaintiff reported the assault by Sgt. Latraille to the supervisor, Lt. Callow, who said he would interview Sgt. Latraille.

On November 11, 2007, Lt. Callow called Plaintiff into his office. Sgt. Latraille was present and explained that on November 8, 2007, he thought Plaintiff had been talking on the phone too long, in a relaxed manner, and when Plaintiff stretched out his arm with the phone, Sgt. Latraille swung his arm to hit.[3] Plaintiff responded that if he had hit Sgt. Latraille, he would have been punished for staff assault and placed in administrative segregation, suggesting that Sgt. Latraille should be disciplined. Plaintiff agreed to drop the matter if Sgt. Latraille did not retaliate against him.

On November 12, 2007, Plaintiff entered the work exchange area for work. Correctional Officer (C/O) Leal came to pick Plaintiff up and told him he had specific instructions from the Sergeants not to allow Plaintiff to bring anything with him, such as legal documents, anymore. When Plaintiff arrived at the Program Office complex, he observed some of the Sergeants looking at him distastefully. Plaintiff went to Lt. Callow and asked him what was going on. Lt. Callow said he would look into it and get back to Plaintiff. Lt. Callow then proceeded to the lunch room where the Sergeants were gathered.

On November 13, 2007, Control Booth Officer A. Hernandez summoned Plaintiff and told him he had received a phone call stating, "If Ross tries to come to work or call, tell him we will call him when we need him, " indicating that Plaintiff was not going back to the work area anymore. That evening, Plaintiff was called to Lt. Kavanaugh's office for a videotaping of Plaintiff's injuries from the assault. Plaintiff discovered that an investigation was being conducted. Lt. Callow assured him he would not be terminated from his job because he did nothing wrong, and he would continue to be paid during the investigation. Lt. Kavanaugh conducted an on-camera interview with Plaintiff, who demonstrated the assault and showed the injury to his finger, which had nearly healed and was difficult to see on camera.

On December 18, 2007, Plaintiff was questioned about the assault by C/Os Sanchez and Espinoza, who asked Plaintiff what he wanted to happen. Plaintiff said Sgt. Latraille should be disciplined for the assault, and Plaintiff should be allowed to go back to work.

On February 13, 2008, Plaintiff asked Sgt. Pear if the investigation was over and when he could return to work. Sgt. Pear said the investigation had concluded a while ago and Plaintiff should have already returned to work. Plaintiff had not received any documentation.

On February 16, 2008, Plaintiff asked C/O B. Kennedy, who was in charge of Plaintiff's time card, why Plaintiff has not been called back to work. C/O Kennedy said it was Lt. Callow's decision not to bring Plaintiff back to work, and there was no justifiable reason, as Sgt. Latraille was not there anymore. C/O Kennedy also said he could not continue to pay Plaintiff if he was not working, despite what Lt. Callow said. Plaintiff realized that Lt. Callow had retaliated against him by permanently terminating his job assignment, solely because Plaintiff had filed a grievance against Sgt. Latraille, who was Callow's staff member.

III. Summary Judgment Standard

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Under summary judgment practice, the moving party

[always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, " which it ...

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