United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED (ECF
NO. 28) FOURTEEN (14) DAY DEADLINE
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
Darrell Junior Lescallett (“Plaintiff”) is a
state prisoner proceeding pro se and in forma pauperis in
this civil rights action under 42 U.S.C. § 1983. This
action proceeds against Defendants Gipson, Broomfield and Doe
Defendants for retaliation in violation of the First
Amendment arising out of events on June 26, 2012, which
resulted in Plaintiff's placement on a modified program.
(ECF No. 18.)
before the Court is Defendants Gipson and Broomfield's
motion for summary judgment, filed on May 17, 2016, pursuant
to Federal Rule of Civil Procedure 56. (ECF No. 28.)
opposed the motion, and Defendants replied. (ECF Nos. 39,
40). The motion is deemed submitted. Local Rule 230(1).
Having considered the moving, opposition and reply papers,
the Court recommends that Defendant Gipson and
Broomfield's motion for summary judgment be granted.
Defendants' Motion for Summary Judgment
Gipson and Broomfield argue that they are entitled to summary
judgment on Plaintiff's claim of retaliation because (1)
Plaintiff has no evidence of a retaliatory motive on the part
of Defendants Gipson or Broomfield; and (2) Defendants'
actions reasonably advanced legitimate penological goals.
Undisputed Material Facts 
all times relevant to this action, Plaintiff was housed at
Corcoran State Prison (COR) in Corcoran, California. (Amended
Complaint, ECF No. 11 at 3.)
all times relevant to this action, Defendant Broomfield was
employed as Captain at COR. (ECF No. 11 at 3; Declaration of
R. Broomfield (“Broomfield Decl.”) at ¶ 1.)
all times relevant to this action, Defendant Gipson was
employed as a Warden at COR. (ECF No. 11 at 2.)
March 30, 2012, Plaintiff entered into a settlement with CDCR
in a previous civil case. (ECF No. 11 at 3.)
Shortly after Plaintiff's settlement, a number of
officers began making negative comments to Plaintiff
regarding his lawsuit. (ECF No. 11 at 4-5; Ex. A to
Declaration of Lucas L. Hennes, Deposition of Plaintiff
(“Pl's Depo.”) at 64:24 - 66:3.)
Plaintiff never heard Defendant Broomfield or Defendant
Gipson make any negative comments regarding his settlement.
(Pl's Depo. at 66:4-12.)
June 14, 2012, Defendants Broomfield and Gipson placed
Facility 3B on modified program due to an increase in
inmate-on-inmate violence, as well as violence towards staff.
(ECF No. 11 at 5; Pl's Depo. at 66:13 - 67:19; Broomfield
Decl. at ¶ 2.)
June 26, 2012, most of the inmates on Facility 3B were taken
off modified program, but a specific group of inmates,
including Plaintiff, was kept on modified program based on
information that they were involved in the 2-5 gang. (ECF No.
11 at 5; Pl's Depo. at 70:3-7, 72:12-15; Broomfield Decl.
at ¶ 4.)
admits that this action was taken against him, but not that
he has any affiliation with the 2-5. (ECF No. 39 at 26.)
Plaintiff's denial of any affiliation is immaterial to
whether there was documentation in his central file that he
was involved in the 2-5 ...