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Goolsby v. Gentry

United States District Court, E.D. California

September 29, 2014

GENTRY, et al., Defendants.


DENNIS L. BECK, Magistrate Judge.

Plaintiff Thomas Goolsby ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. ยง 1983. Plaintiff filed this action on October 25, 2011.


On May 20, 2013, the Court screened Plaintiff's First Amended Complaint ("FAC") and found the following cognizable claims: (1) First Amendment retaliation claim against Defendants Gentry, Noyce, Eubanks, Tyree, Medrano, Holman, Holland and Steadman; and (2) violation of due process against Defendants Eubanks, Tyree, Medrano, Holland and Gutierrez. The Court dismissed all other claims and Defendants.

On November 26, 2013, Defendants filed a motion to dismiss the due process claims based on failure to state a claim and failure to exhaust.[1] Defendant Holman joined in the motion on December 13, 2013.

Plaintiff filed his opposition on January 6, 2014, and with Court permission, he filed a supplemental opposition on January 28, 2014.

Defendants filed their reply on March 13, 2014.

Plaintiff filed a motion for leave to file a surreply, along with a surreply, on March 24, 2014.

On April 1, 2014, based on the parties' submission of outside evidence, the Court converted the portion of the motion to dismiss based on failure to state a claim into a motion for partial summary judgment.

On April 10, 2014, based on the Ninth Circuit's ruling in Albino v. Baca , 747 F.3d 1162 (9th Cir. 2014), the Court converted the exhaustion portion of the motion to dismiss into a motion for summary judgment. On September 19, 2014, the Court issued Findings and Recommendations to grant the motion for summary judgment based on exhaustion and dismiss the due process claims against Defendants Holland and Gutierrez.

The instant Findings and Recommendations address only the portion of the motion for summary judgment based on the failure to state a claim portion of the original motion to dismiss. The issue is fully briefed and ready for decision pursuant to Local Rule 230(l).


Parties do not have the right to file surreplies and motions are deemed submitted when the time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to file a surreply with disfavor. Hill v. England , 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes-Benz USA, LLC , 366 F.Supp.2d 1190, 1197 (N.D.Ga. 2005)). However, district courts have the discretion to either permit or preclude a surreply. See U.S. ex rel. Meyer v. Horizon Health Corp. , 565 F.3d 1195, 1203 (9th Cir. 2009) (district court did not abuse discretion in refusing to permit "inequitable surreply"); JG v. Douglas County School Dist. , 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file surreply where it did not consider new evidence in reply); Provenz v. Miller , 102 F.3d 1478, 1483 (9th Cir. 1996) (new evidence in reply may not be considered without giving the non-movant an opportunity to respond).

Here, Plaintiff's surreply addresses issues that were raised for the first time in the reply and/or clarifies some of Plaintiff's arguments. Given that Defendants' motion was construed as a motion for summary judgment, and because Defendants did not oppose the motion, the Court will GRANT Plaintiff's request. The Court notes, however, that the arguments in the surreply did not factor into the Court's decision.


Plaintiff alleges that he was validated as an associate of the Nazi Low Rider ("NLR") prison gang in February 2011. He believes that he was validated in retaliation for his lawsuits and appeals. In connection with his validation, Plaintiff alleges that Defendant Eubanks used an illegal "filter list" as evidence to support the validation. On January 26, 2010, Defendant Eubanks authored a confidential memorandum indicating that he found a filter list in the property of two other inmates. Plaintiff's name appeared on this list and Defendant Eubanks assumed that it was reliable evidence of gang association. Plaintiff appealed this issue. The appeal was answered by Defendants Holland and Gutierrez, who were aware of the use of the illegal filter list but continued to allow its use.

Plaintiff further contends that in response to the validation packet, he wrote a detailed rebuttal to the allegations. He handed his rebuttal to Defendant Eubanks, yet the packet stated that the investigation was already complete. Defendant Eubanks did nothing with the rebuttal and failed to investigate his contentions. Plaintiff contends that this violated his right to due process because it denied him an opportunity to be heard in a meaningful way. Plaintiff appealed this issue. The appeal was answered by Defendants Holland and Gutierrez, who were aware of the issue but did nothing to allow Plaintiff to be heard in a meaningful way.

Next, Plaintiff alleges that Defendant Medrano reviewed Plaintiff's address book, which was confiscated by Defendant Tyree on May 15, 2009. He contends that this address book included names of prisoners, some of which were friends or were witnesses to planned litigation. Defendant Medrano reviewed the names and came up with two inmates who were validated. Plaintiff had no idea that these inmates were validated at the time he received their information, and had he known, he would not have possessed their information. The two inmates in question were both witnesses in a legal action that Plaintiff was prosecuting, and neither was contacted for personal or gang-related reasons. He contends that Defendants Medrano and Tyree had no evidence that Plaintiff possessed their information for any reasons other than legitimate ones. Plaintiff brought this issue to the attention of Defendants Holland and Gutierrez, but they called to review the issue in any meaningful manner.


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, 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)).

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 ...

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