United States District Court, E.D. California
K. JAMEL WALKER, Plaintiff,
CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STALES MAGISLRALE JUDGE
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.
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).
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)).
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 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.
of Plaintiff's Claims
action proceeds on the second amended complaint filed
February 20, 2014, against defendants Ryan, Bourland, Nunez,
Chavarria, Price, Rush, and Anaya. (ECF No 46.)
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.)
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
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
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.)
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.)
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.)
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.
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.)
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.)
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.
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.)
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.)
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
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.)
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?
Plaintiff's Legal Claims
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.)
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.)
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.)
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.)
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.)
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.
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.)
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.)
Undisputed Facts Regarding Parties
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.)
Undisputed Facts Regarding Policies re: Confidential
Communication Between Inmates and Attorneys
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. (ECF No. 60-4 at
3; ECF No. 85 at 1-2 (Anaya declaration); ECF No. 84 at 1-2
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).)
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
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
calls are limited to thirty minutes. (ECF No. 60-4 at 3; ECF