United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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.
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.
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.)
Legal Standard for Summary Judgment
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.
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).
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).
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).
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.
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.
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
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
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.
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.
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.
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
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