Wheeler v. Hodges

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner, proceeding pro se, with a civil rights action pursuant to 42 U.S.C. § 1983. Defendants’ motion for summary judgment is before the court. As set forth more fully below, the undersigned recommends that defendants’ motion be granted.

         II. Background

         Plaintiff is serving a sentence of life with the possibility of parole based on his conviction for robbery and kidnap for the purpose of robbery. On November 16, 2015, defendants moved for summary judgment; plaintiff filed an opposition, and defendants filed a reply.

         III. Plaintiff’s Claims

         In his verified second amended complaint, plaintiff claims that on January 23, 2012, he received a rules violation report (“RVR”), Log #12-03-35-P-4, for introduction of dangerous contraband to a state prison -- possession of cell phones. He was found guilty of the RVR and assessed a 90 day loss of credit. Plaintiff alleges that defendants Vivero and Cano violated plaintiff’s procedural due process rights in connection with the RVR hearing held on April 3, 2012: defendant Cano allegedly failed to provide assistance as a staff assistant in preparation for and during the RVR hearing, as evidenced by his signing the form that he offered assistance, but the signature dates occurred before the RVR hearing took place. Plaintiff also argues that these dates demonstrate that plaintiff was deprived of staff assistance “24 hours prior to the hearing.” (ECF No. 14 at 4.) Plaintiff alleges that defendant Vivero denied plaintiff the right to call witnesses. Plaintiff sought to call officer J. Languerand, who would testify that he inventoried the package but did not acknowledge any contraband. Officer T. Harper would be called because he authored the RVR stating that he found contraband in the package. Plaintiff argues that because he could not call Languerand, he could not present a legitimate defense showing this discrepancy in reporting the contents of the package. Plaintiff also sought to call Captain A. Rodriguez “to make clear that it is mandatory to clear certain actions relating to searches with a captain or above.” (ECF No. 14 at 4.) Plaintiff seeks a new prison disciplinary hearing, a new parole consideration hearing, and money damages. (ECF No. 14 at 5.)

         IV. Legal Standard for Summary Judgment

         Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. “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). “[T]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 believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed.R.Civ.P. 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed.R.Civ.P. 56 advisory committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.

         Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee’s note on 1963 amendments).

         In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed.R.Civ.P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 586 (citation omitted).

         By contemporaneous notice provided on November 16, 2015, (ECF No. 47), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

         V. Facts^[1]

         On January 23, 2012, Deuel Vocational Institution (“DVI”) Receiving and Release (“R&R”) staff contacted institutional security (“ISU”) concerning a suspicious package received by R&R, and addressed to plaintiff, inmate Reginald Wheeler, C-52713. Officer T. Harper searched the contents of the suspicious package and found within the suspicious package, one typewriter with plaintiff’s name and CDCR identification number etched into its back, and eleven soup packets. Further, Officer Harper discovered, secreted in the typewriter, four cellular phones with chargers, and inside eight of the soup packets, approximately 600 grams of tobacco, all of which are considered unauthorized contraband under prison regulations.

         DVI R&R Officer Languerand prepared a “Mainline -- Personal Property Inventory Sheet -- Arrival, ” inventorying the personal property items in the package, which consisted of one pair of blue jeans, one sweatshirt, ten food items, and one typewriter. Plaintiff testified that the personal property belonged to him, and acknowledged the same to Officer Harper. Plaintiff denied knowledge of the contraband.

         After discovering the contraband in the package addressed to plaintiff, Officer Harper investigated plaintiff’s recent telephone conversations. Harper discovered that plaintiff had spoken with his mother a few weeks before the package arrived. In this conversation, plaintiff’s mother told plaintiff that the box had been sent that day. Further investigation revealed telephone conversations in the prior month between plaintiff and his mother, and plaintiff and two other individuals, and all of these conversations involved discussions of sending plaintiff a box with “those thangs [sic]” and “those eight and those four other things.” (ECF No. 44 at 7.) Plaintiff’s mother also confirmed to him that the typewriter was in the box. Plaintiff also discussed with one of his contacts a mailing label that plaintiff had sent to him.

         Based on his 23 years of training and experience as a correctional officer, Officer Harper determined that plaintiff was directly involved in a plan to introduce, into DVI, cell phones and tobacco, all of which are contraband. Plaintiff was issued a rules violation report (“RVR”) for “Introduction of Dangerous Contraband to a State Prison-Possession of Cell Phones” (log number DVI-12-01-89-Pwas). (ECF No. 44 at 6.) Plaintiff was assigned a staff assistant, who read the charges and the RVR to plaintiff. However, the RVR was ordered re-issued and re-heard because plaintiff was not afforded a copy of the CDCR 115A form.

         The re-issued RVR was given a new log number, 12-03-35-P-R, and was the same as the previous RVR, except for the introduction explaining the reissuance.

         An inmate is assigned a staff assistant under state regulations if his or her test score for literacy is below 4.0. Plaintiff’s previous literacy test scores were “messed up, ” but subsequently were “corrected.” (Pl.’s Depo. at 40, 43, 58.) Plaintiff’s current test score for literacy is 12.9.

         For the re-issued RVR, plaintiff was assigned a new staff assistant, defendant Officer Cano, who completed the Staff Assistant Assignment form and dated it March 21, 2012. Plaintiff was provided with the RVR documents on March 21, 2012. Plaintiff did not ask defendant Cano for any assistance before the hearing, although plaintiff saw defendant Cano every day. Plaintiff prepared for his RVR hearing at the law library, and fellow inmates at the law library and on the yard assisted him in preparing for the hearing. The inmates assisting plaintiff with the hearing pointed out various applicable regulations and quoted policies and code violations to assist him. Plaintiff sorted through the documents for the RVR hearing, and when asked at his deposition if he had read the documents, he replied, “that’s what I get the staff assistant for . . . it ain’t my job. . . .” (Pl.’s Depo. at 49.) Plaintiff admitted that he received at least 24 hours’ notice of the charges and the hearing on the RVR.

         The hearing on plaintiff’s RVR took place on April 3, 2012. Defendant Vivero was the Senior Hearing Officer, and defendant Cano was present as plaintiff’s staff assistant. During the RVR hearing, defendant Vivero explained the charges to plaintiff. Defendant Cano sat next to plaintiff during the RVR hearing and was available to assist plaintiff if asked. Plaintiff did not ask defendant Cano any questions or seek any assistance from him at the RVR hearing. Plaintiff was prepared for the RVR hearing; he had prepared a written rebuttal to the charges that was several pages long, and he had several books and a large amount of paperwork with him at the RVR hearing. Plaintiff had an opportunity speak at the RVR hearing, and he did so. During the RVR hearing, plaintiff stated that he was not present when the package was opened, which he argued violated prison regulations. Plaintiff further argued that because he never had access to the alleged contraband, he could not have “receive[d]” it. (Pl.’s Depo. at 134.) Plaintiff submitted the Mainline property inventory sheet into evidence as part of his defense. Plaintiff prepared a list of defects in the incident investigation and charge against him and submitted this list to defendant Vivero. Plaintiff prepared and submitted questions and statements ...