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Walker v. California Department of Corrections

United States District Court, E.D. California

February 23, 2018

K. JAMEL WALKER, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STALES MAGISLRALE JUDGE

         I. Introduction

         Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment. (ECF No. 60.) Also pending is plaintiff's motion to strike defendants' declarations. (ECF No. 74.) For the reasons stated herein, plaintiff's motion to strike is denied, and the undersigned recommends that defendants' summary judgment motion be granted.

         II. 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).

Under summary judgment practice, 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 September 14, 2012 (ECF No. 38), 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).

         III.

         Summary of Plaintiff's Claims

         A. Plaintiff's Allegations

         This action proceeds on the second amended complaint filed February 20, 2014, against defendants Ryan, Bourland, Nunez, Chavarria, Price, Rush, and Anaya. (ECF No 46.)

         Plaintiff alleges that in 2005, defendants denied requests by the attorney representing plaintiff in a civil matter to have confidential phone calls with plaintiff. Instead, plaintiff's phone calls with his attorneys were monitored by defendants. (Id. at 2-6.)

         Plaintiff alleges that on August 17, 2005, his attorney sent a letter, via fax and mail, to defendant Nunez or non-defendant Moreno, informing them that plaintiff had to appear at a telephonic settlement conference on September 21, 2005, at 1:30 p.m. (Id. at 4-5.) On September 21, 2005, plaintiff appeared at the telephonic settlement conference. (Id. at 5.) Plaintiff alleges that defendants Rush and Anaya monitored the phone call, despite knowing the “confidential nature” of the settlement conference. (Id.)

         Plaintiff alleges that on September 8, 2005, his attorney sent a letter, via fax and mail, to defendant Nunez or non-defendant Moreno, requesting permission to conduct a conference call with plaintiff on September 12, 2005, September 13, 2005, or September 14, 2005, to discuss Early Neutral Evaluation (“ENE”). (Id.)

         On September 13, 2005, plaintiff received a message to report to the office of defendants Rush and Anaya to receive the preapproved conference call with his attorney. (Id.) Plaintiff alleges that defendants Rush and Anaya monitored this call. (Id.)

         Plaintiff alleges that on October 12, 2005, his attorney sent a letter, via fax and mail, to defendant Nunez or non-defendant Moreno, informing them that the September 21, 2005 settlement conference had been continued to October 27, 2005, and that plaintiff was to appear by telephone. (Id.)

         On October 20, 2005, plaintiff's counsel sent a letter, via fax or mail, to defendant Nunez or non-defendant Moreno, asking to speak with plaintiff on October 26, 2005. (Id.) On October 26, 2005, plaintiff was told to report to the office of defendants Rush and Anaya to receive a call from his attorney. (Id.) Defendants Rush and Anaya monitored this call. (Id.)

         On October 27, 2005, plaintiff reported to the office of defendants Rush and Anaya to telephonically attend the settlement conference. (Id. at 6.) At the conclusion of the call, plaintiff asked the judge if he could talk with his attorney before the call was terminated. (Id.) The judge granted this request. (Id.) The judge and opposing counsel hung up, and plaintiff began speaking to his counsel. (Id.) Ten minutes later, defendant Rush ordered plaintiff to hang up. (Id.) Defendant Rush told plaintiff that the call was not authorized. (Id.)

         On October 28, 2005, plaintiff's counsel called back. (Id.) Defendant Anaya summoned plaintiff to his office. (Id.) Plaintiff stepped out of the office with the phone. (Id.) Defendant Anaya told plaintiff that he had been given instructions to have plaintiff sit in the office so the call could be monitored, or plaintiff could hang up and have his attorney visit him. (Id.) Plaintiff hung up the phone. (Id.)

         Plaintiff alleges that later that day, defendant Anaya issued a 128-B Chrono to him for violating prison rules by leaving the office. (Id. at 6-7.)

         Plaintiff alleges that four days after receiving the 128-B chrono, his attorney informed him that their phone calls would be limited to fifteen minutes, instead of the previous thirty minutes. (Id. at 7.) Plaintiff alleges that the fifteen minute time limit was imposed by defendants in retaliation for him attempting to have a confidential phone call with his attorney on October 28, 2005. (Id.) Plaintiff alleges that the fifteen limit time limit was also imposed to retaliate against him for engaging in litigation. (Id.)

         Plaintiff alleges that on November 26, 2005, Lieutenant Santana began investigating claims that an inmate was planning to assault plaintiff. (Id. at 9.) Lieutenant Santana placed the inmate who planned to assault plaintiff into segregation. (Id.) Plaintiff alleges that on November 28, 2005, defendants Price and Chavarria entered into a conspiracy to have the inmate who planned to assault plaintiff moved back to plaintiff's unit. (Id.) Plaintiff alleges that defendants Price and Chavarria “knew or should have known” that this inmate was a threat to plaintiff. (Id.) Plaintiff alleges that on November 28, 2005, Officer Dominguez asked plaintiff to sign a document stating that he did not consider this inmate to be a threat. (Id.) Plaintiff refused to sign this document. (Id. at 9-10.)

         Ten minutes after plaintiff refused to sign the document presented to him by Officer Dominguez, plaintiff was escorted to defendant Chavarria's office. (Id. at 10.) Defendant Chavarria asked plaintiff why he refused to sign the document. (Id.) Plaintiff stated that he had been informed that the inmate placed in segregation planned to assault him. (Id.) Defendant Price entered the office and stated that the inmate had informed him that plaintiff was a trouble maker. (Id.)

         Plaintiff then returned to his housing unit where he wrote letters to his attorney and acting Warden Giurbino informing them that defendants Price and Chavarria were trying to set him up to be assaulted. (Id.) Plaintiff alleges his letter to Warden Giurbino was successful because the inmate was not “bailed out of segregation.” (Id. at 12.)

         Plaintiff alleges that on November 30, 2005, he made a telephonic appearance at a confidential settlement conference. (Id.) Plaintiff alleges that defendant Anaya stayed in the office during the entire phone call. (Id.)

         Plaintiff alleges that on December 7, 2005, he was summoned to defendant Price's office. (Id. at 11.) Defendant Price told plaintiff that he was investigating a grievance plaintiff filed alleging that defendants Rush and Anaya had eavesdropped on his calls with his attorney. (Id.) Defendant Price became angry when plaintiff began talking. (Id.) Defendant Price told plaintiff,

I don't have time for this! This is a waste of my time! You may have won the last battle, but you won't win the next one! You know what I mean! Don't play games on my yard! Both green and blue say you are a troublemaker! Just keep this in the back of your mind; the next time I hear you're playing games on my yard, you'll be in the hole! You want to be in the hole now? You want to go to the fucking hole now?

(Id.)

         B. Plaintiff's Legal Claims

         In claim one, plaintiff alleges retaliation by defendants Price, Chavarria and Anaya. (Id. at 15.) In particular, plaintiff alleges that on December 7, 2005, defendant Price threatened to put plaintiff in ad seg in retaliation for his filing of the grievance challenging the denial of confidential phone calls. (Id.) Plaintiff also alleges that defendants Price and Chavarria retaliated against him for his legal activities when they tried to force plaintiff to sign a document saying that the inmate who planned to assault him was no longer his enemy. (Id.) Plaintiff also alleges that on October 28, 2005, defendant Anaya retaliated against him for attempting to exercise his right to confidential contact with his counsel by leaving the counselor's office, by placing the 128-B chrono in his file and limiting his attorney phone calls to fifteen minutes. (Id.)

         In claim two, plaintiff alleges that defendants Ryan, Bourland, Nunez, Chavarria, Rush and Anaya violated his Fourth Amendment rights to confidentially communicate with his lawyer. (Id. at 16.)

         In claim three, plaintiff alleges that defendants Ryan, Bourland, Nunez, Chavarria, Price, Rush and Ayana violated his Fourteenth Amendment rights by failing to follow California Penal Code § 636, which establishes his right to privately communicate with his lawyers. (Id.)

         In claim four, plaintiff alleges that defendants Ryan, Bourland, Nunez, Chavarria, Price, Rush and Anaya conspired to retaliate against him for his legal activities by interfering with his right to have confidential communications with his lawyer. (Id. at 17-18.)

         In claim five, plaintiff alleges that his rights were violated as a result of the failure of defendants Ryan, Bourland, Price, Nunez and Chavarria to train their employees. (Id. at 18.)

         IV. Pleading Clarification

         Plaintiff has attached two identical declarations to his opposition, i.e., ECF Nos. 73-1 and 73-2. The exhibits attached to the declarations are also identical. The only difference between the two declarations is that the declaration filed as ECF No. 73-2 includes two copies of plaintiff's declaration. (See ECF No. 73-2 at 9-16.) Accordingly, in these findings and recommendations the undersigned refers only to plaintiff's declaration, and attached exhibits, filed as ECF No. 73-1.

         In support of their summary judgment motion, defendants filed the declaration of defendant Nunez. (ECF No. 60-7.) In this declaration, defendant Nunez referenced Exhibits A and B attached to the declaration, i.e., the 2004 and 2006 edition of Cal. Code Regs. tit. 15, § 3282. (Id. at 2.) However, these exhibits were not attached to this declaration. On November 27, 2017, defendants filed the declaration of defendant Nunez containing these exhibits. (ECF No. 80.)

         On November 30, 2017, the undersigned issued an order finding that the declarations of defendant Nunez and Anaya, filed in support of the summary judgment motion, were not properly dated. (ECF No. 83.) Defendants were granted fourteen days to file properly dated declarations by defendants Nunez and Anaya. (Id.) On December 12, 2017, properly dated declarations by defendants Nunez and Anaya were filed. (ECF Nos. 84, 85.)

         V. Undisputed Facts

         A. Undisputed Facts Regarding Parties

         The events alleged in the second amended complaint took place at Calipatria State Prison (“CSP”). (ECF No. 60-4 at 1; ECF No. 73-4 at 1.) Defendant Ryan was the Warden of CSP at all relevant times. (ECF No. 60-4 at 2; ECF No. 73-4 at 2.) Defendant Bourland was the Chief Deputy Warden at CSP at all relevant times. (ECF No. 60-4 at 2; ECF No. 73-4 at 2.) Defendant Nunez was the Litigation Coordinator at CSP at all relevant times. (ECF No. 60-4 at 2; ECF No. 73-4 at 2.) Defendant Chavarria was a Correctional Counselor at all relevant times. (ECF No. 60-4; ECF No. 73-4 at 2.) Defendant Price was a Correctional Captain at all relevant times. (ECF No. 60-4; ECF No. 73-4 at 2.) Defendant Price is deceased. (ECF No. 60-4 at 2; ECF No. 73-4 at 2.) Defendant Rush was a Correctional Counselor at all relevant times. (ECF No. 60-4 at 2; ECF No. 73-4 at 2.) Defendant Anaya was a Correctional Counselor at all relevant times. (ECF No. 60-4 at 2; ECF No. 73-4 at 2.)

         B. Undisputed Facts Regarding Policies re: Confidential Communication Between Inmates and Attorneys

         Undisputed Facts

         As Litigation Coordinator, defendant Nunez was designated by the Warden to set up confidential inmate-attorney phone calls as well as non-confidential calls, such as between an inmate and the court, or an inmate and his attorney.[1] (ECF No. 60-4 at 3; ECF No. 85 at 1-2 (Anaya declaration); ECF No. 84 at 1-2 (Nunez declaration).

         Prison regulations, set forth in Cal. Code Regs. tit. 15, § 3282 (a)(2), define a “confidential call” as a telephone call between an inmate and his/her attorney, which both parties intend to be private. (ECF No. 60-4 at 3; ECF No. 73-4 at 3; ECF No. 84 at 2 (Nunez declaration).) A non-confidential inmate-attorney call is where one party does not intend the call to be private. (ECF No. 60-4 at 3; ECF No. 84 at 2. (Nunez declaration).) A confidential inmate-attorney call is handled differently than a non-confidential call between an inmate and his attorney. (ECF No. 60-4 at 3; ECF No. 84 at 2 (Nunez declaration).)

         Non-confidential attorney-inmate calls (and telephonic court appearances) are conducted in the Counselor's Office. (ECF No. 60-4 at 3; ECF No. 84 at 2 (Nunez declaration).) During a non-confidential inmate-attorney call, counseling staff will remain in the Counselor's Office during the duration of the phone call for safety and security reasons described herein. (ECF No. 60-4 at 3; ECF No. 84 at 2 (Nunez declaration).)

         The Counselor's Office contains a phone, a computer, files containing confidential inmate information, and office supplies that inmates could use to make weapons. (ECF No. 60-4 at 2; ECF No. 84 at 2 (Nunez declaration).) The Correctional Counselor's presence prevents the inmate from stealing items that can be used to make weapons; taking or reading other inmates' files to gain information they can use against them or sell; gaining unauthorized access to the computer; or using the phone to conduct unauthorized calls. (ECF No. 60-4 at 3; ECF No. 84 at 2 (Nunez declaration).)

         Non-confidential calls are limited to thirty minutes. (ECF No. 60-4 at 3; ECF ...


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