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Masterson v. Killen

United States District Court, E.D. California

March 6, 2017

S. KILLEN, et al., Defendants.


         Plaintiff Daniel Masterson is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds against Defendants Killen, Hampson, Hall, Fisher, Rodriguez, Santoro, and Tolson for retaliation in violation of the First Amendment, and against Defendants Killen, Hampson, Hall, Rodriguez, Santoro, and Tolson for conspiracy to retaliate against Plaintiff. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.[1]

         Currently before the Court is Defendants' motion for summary judgment, filed on June 10, 2016 (ECF No. 90.)


         This action proceeds on the third amended complaint, filed on November 22, 2013, against Defendants Killen, Hampson, Hall, Fisher, Rodriguez, Santoro, and Tolson for retaliation in violation of the First Amendment, and against Defendants Killen, Hampson, Hall, Rodriguez, Santoro, and Tolson for conspiracy to retaliate against Plaintiff. (ECF No. 28.)

         On November 7, 2014, Defendants filed an answer to the third amended complaint. (ECF No. 38.) On November 14, 2014, a discovery and scheduling order was issued, (ECF No. 42), which was modified on July 16, 2015, (ECF No. 56).

         As noted above, on June 10, 2016, Defendants filed the subject motion for summary judgment. (ECF No. 90.) Following certain extensions of time, on September 19, 2016, Plaintiff filed an opposition, with support. (ECF Nos. 100, 101, 102, 103, 105.)

         Following their own extensions of time and other matters, on December 2, 2016, Defendants filed a reply to Plaintiffs opposition. (ECF No. 117.) Among the arguments in their reply brief, Defendants assert that Plaintiff submitted forged and fraudulent declarations in support of his opposition. (ECF No. 117, pp. 2, 12-13.) Defendants moved to strike the allegedly false and fraudulent declarations.

         On December 14, 2016, Defendants moved for an order requiring Plaintiff to show cause why he should not be sanctioned for preparing and filing the allegedly false declarations. Defendants further requested a show cause hearing. (ECF No. 118.) Plaintiff contended that no false declarations were filed, and did not oppose the show cause hearing. (ECF Nos. 120, 123.)

         On December 14, 2016 Plaintiff filed a motion to stay the proceedings in this matter to resolve the dispute regarding the declarations, which he contends were not false or fraudulent. (ECF No. 120.) On December 21, 2016, Defendants filed a response to Plaintiffs motion, agreeing that the issues regarding the declarations should be resolved before the case proceeds. (ECF No. 121.)

         Following other submission by the parties on these matters, on January 26, 2017, the Court set this matter for an evidentiary hearing. (ECF No. 28.) The evidentiary hearing was held on February 15, 2017. (ECF No. 139.) Concurrently with this order, the undersigned issued findings and recommendations regarding Defendants' motion to strike certain declarations and the cross-motions for sanctions by the parties. As set forth in that order, the undersigned recommended that each of the two typed declarations Plaintiff filed from inmate McCollum, (ECF No. 100, pp. 177-78, 202-04) in support of his opposition to Defendants' motion for summary judgment, should be stricken from the record and not considered for purposes of that motion. No other sanctions were recommended.

         Defendant's motion for summary judgment is now deemed submitted for review, without oral argument. Local Rule 230(1).


         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 Mut. 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 Sch. Dist, 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., 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 Plaintiffs case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). In judging the evidence at the summary judgment stage, the Court does 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).

         In arriving at this recommendation, the Court has carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.


         A. Summary of Third Amended Complaint

         The events at issue in the third amended complaint allegedly occurred at the California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California, when Plaintiff was incarcerated there. All of the defendants were employed by the CDCR at the time of the events at issue.

         Plaintiffs claims arise from events occurring between July 6, 2010 and May 4, 2012 at SATF.[2] In July 2010, Plaintiff filed a grievance against Defendants Killen and Hampson for refusing to process Plaintiffs legitimate request for copies related to pending litigation which defendant Killen referred to as a "bullsh- lawsuit against custody staff." (Third Amended Complaint ("3ACP"), ECF No. 28, at ¶ 1.) Shortly thereafter, Defendants Killen and Hampson-with the assistance and approval of Defendants Rodriguez and Hall-caused Plaintiff to be removed from his paid position as a library clerk and reassigned to a non-paid, less desirable position on the yard crew picking up trash. Plaintiff alleges that there was no legitimate penological reason for the change in his position. Plaintiff filed an inmate grievance concerning this retaliation.

         On August 18, 2010, during an interview about the retaliation, Defendant Hall threatened Plaintiff with "unfavorable consequences" if Plaintiff revealed any part of the interview in any complaints filed against Defendant Killen. (3 ACP, at ¶ 4.)

         On September 14, 2010, Plaintiff was interviewed by an appeals coordinator about Plaintiff s reassignment from his library clerk position to his assignment on the yard crew. The appeals coordinator told Plaintiff that pursuant to state regulations, Defendants Killen, Hampson, Hall and Rodriguez could not remove Plaintiff from a paid position to a non-paid position "absent disciplinary action or some kind of documentation requesting action be taken by a classification committee." (3ACP, at ¶ 7.) Defendants had not submitted any of the required documentation. The appeals coordinator told Plaintiff that CCR Title 15 creates a "liberty interest" requiring "Due Process" under the Fourteenth Amendment. (Id.)

         On September 30, 2010, Defendant Killen refused Plaintiff access to the law library to conduct legal research and obtain needed legal copies. When Plaintiff asked why he was being denied access, Defendant Killen said, "You haven't figured out you can't 602 [file a complaint against] us?" (3ACP, at ¶5.)

         On October 5, 2010, Plaintiff was interviewed by Defendant Hampson about Defendant Killen's retaliatory actions and harassment of Plaintiff. Defendant Hampson stated that she was in "collaboration" with any actions done by Defendant Killen, including denying Plaintiff copies and access to the law library. (3 ACP, at ¶ 6.)

         On January 27, 2011, Defendant Hampson informed Plaintiff that she and Defendant Killen were well aware that Plaintiff was preparing to file a § 1983 lawsuit against them, which made it necessary for her and other defendants to have "collusion" between them. (3 ACP, at ¶8.) Plaintiff acknowledged that he intended to file a lawsuit because of the retaliation.

         On February 15, 2011, Defendant Hampson wrote the first of several adverse chronos [reports] against Plaintiff, in collusion with Defendant Killen. Defendant Hampson documented that she was "in fear [that Plaintiff] can make her [Defendant Killen] lose her temper so that he will have a real reason to file a lawsuit against her, " insinuating that Defendant Killen has a history of losing her temper, resulting in a pattern of retaliation. (3 ACP, at ¶ 9.)

         On May 7, 2011, Defendant Killen threatened Plaintiff by stating that if he filed any more complaints against her or pursued any pending complaints, "I'll have you thrown in the hole and transferred. You know I can do it too." (3 ACP, at ¶ 10.)

         On May 20, 2011, Defendant Hampson authored her second adverse chrono, alleging that Plaintiffs request to have Defendant Killen cease her retaliatory actions was Plaintiff "attempting to be overfamiliar with LTA Killen." (3 ACP, at ¶ 11.) Defendant Hampson knew that using the word "overfamiliar" would automatically cause Plaintiff to be re-housed in administrative segregation (Ad-Seg), under the guise of an investigation. (Id.) Defendant Fisher ordered Defendant Hampson to recant the use of the word "overfamiliar" as it was false and Defendant Hampson's intentions too obvious. (Id.) Defendant Hampson was forced to document the resentment.

         On June 24, 2011, Defendant Killen attempted to intimidate Plaintiff via institutional mail by indicating that Defendants were going to illegally take money from Plaintiffs prison trust account by falsely claiming that Plaintiff did not return legal cases. When Plaintiff produced evidence that the legal cases were in fact returned, Defendant Killen responded with an adverse chrono.

         On June 28, 2011, Defendant Hall interviewed Plaintiff about a grievance filed alleging that Defendants Killen, Hampson, and Hall had attempted to discourage Plaintiff from filing federal litigation. Defendant Hall told Plaintiff that he was also in collusion with Defendants Killen and Hampson. Defendant Hall inadvertently left incriminating handwritten notes taken during the interview, attached to the appeal when the appeal was returned to Plaintiff, revealing a collusion and conspiracy among the defendants.

         On July 12, 2011, Plaintiff presented documentation to Defendant Killen showing that Plaintiff had a court-ordered deadline and needed to obtain copies. Defendant Killen refused and stated, "602 that!" (3 ACP, at ¶ 15.) When Plaintiff stated that a complaint would be filed, Defendant Killen said that Plaintiff would receive yet another retaliatory disciplinary report. Killen followed through with the threat, issuing Plaintiff a disciplinary report. Plaintiff subsequently missed the court deadline and was not permitted to file a reconsideration motion. (Id.)

         On July 13, 2011, Defendant Fisher threatened Plaintiff by stating, "You had better back off with the appeals, " referring to the complaints filed against Defendants Killen, Hampson, and Hall. (3ACP, at ¶14.)

         On August 11, 2011, at the request of Defendant Hampson and on the orders of Defendant Santoro, Defendant Rodriguez threatened to throw Plaintiff in the hole if Plaintiff filed any further complaints or pursued any pending complaints or litigation. On August 16, 2011, Plaintiff filed a motion for a protective order with this court.

         On August 24, 2011, Plaintiff was interviewed for a second time by appeals coordinator R. M. Hall, regarding Plaintiff s appeal about his change in job assignment. The appeals coordinator stated that Defendants Killen, Hampson, Hall, and Rodriguez could not reassign Plaintiff without due process and definitely not in retaliation for Plaintiff filing a complaint. On September 14, 2011, the appeals coordinator provided Plaintiff with information and documentation to support this contention.

         On September 9, 2011, during an interview with Plaintiff, Defendant Hampson admitted that she did in fact contact Defendant Rodriguez on or about August 11, 2011, requesting Defendant Rodriguez to persuade Plaintiff from filing any further complaints and to abandon pending litigation.

         On October 11, 2011, Defendant Killen authored a fourth disciplinary chrono in retaliation for Plaintiffs litigation against Defendant Killen. The chrono alleged that Plaintiff had returned case law documents directly to the Education Principal instead of to Defendant Killen. There was no actual violation of any prison rule or regulation involved.

         On October 18, 2011, Defendant Killen authored another adverse disciplinary chrono after "literally stalk[ing]" Plaintiff by searching the prison yard to locate him, documenting that Plaintiff was standing with a group of prisoners "laughing." (3ACP, at ¶ 20.)

         Defendant Hampson issued three adverse chronos and Defendant Killen at least seven, with absolutely no legitimate penological goal.

         On November 16, 2011, Plaintiff asked Defendant Santoro why he ordered Defendant Rodriguez to threaten Plaintiff with being thrown in the hole for maintaining litigation, and asked whether Defendant Santoro was going to address the ongoing harassment and retaliation by Defendants Killen and Hampson. Defendant Santoro became visibly agitated and briskly walked away.

         On December 17, 2011, Defendant Killen issued Plaintiff a ducat to report to the law library. Plaintiff was escorted by two officers. Defendant Killen opened the library door and told Plaintiff and the officers that she and her clerk (Inmate Waymon Berry) were the only two in the library. One of the officers asked Defendant Killen how many prisoners were ducated for that day, and Defendant Killen replied only the Plaintiff. The officer and Plaintiff found this to be extremely odd and suspect. Due to Defendant Killen's past threats to Plaintiff, Plaintiff was not comfortable entering the library with only Defendant Killen and her clerk. Defendant Killen became angry and informed Plaintiff and the officer that she would be issuing Plaintiff a serious disciplinary report for refusing to enter the library.

         On December 27, 2011, according to Plaintiffs housing unit staff, Defendant Killen ordered housing unit officers to search Plaintiffs cell and confiscate items that Plaintiff used to prepare legal documents. The cell was left in disarray with documents thrown about the cell. There was no penological reason for the cell search and confiscation of property.

         On December 30, 2011, Defendant Killen's clerk, Inmate Berry, threatened Plaintiff by stating that he would provide false information to prison officials implicating Plaintiff and claim Plaintiff as an enemy, if Plaintiff refused to dismiss the pending litigation against Defendant Killen. This threat would cause Plaintiff to be re-housed in Ad-Seg under investigation. Plaintiff wrote a declaration, under penalty of perjury, about the threats and sent it to Defendant Cordova, with copies to other prison officials. Defendant Cordova failed to act on the threats against Plaintiff.

         On January 7, 2012, Inmate Berry issued Plaintiff an ultimatum, with Defendant Killen's knowledge and support. Inmate Berry said if Plaintiff did not drop the litigation and complaints against Defendant Killen, he would be thrown in the hole based on false information.

         On January 8, 2012, Plaintiff was informed by prison officials that Inmate Berry had submitted confidential information, which resulted in Plaintiff being placed in ...

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