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Roberts v. Beard

United States District Court, S.D. California

May 25, 2018

Tony Roberts, Plaintiff,
v.
J. Beard et al., Defendants.

          REPORT AND RECOMMENDATION GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          PETER C. LEWIS UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff Tony Roberts, an inmate currently incarcerated at California Health Care Facility, has filed a 42 U.S.C. § 1983 lawsuit against staff at the RJ Donovan Correctional Facility for violations of his First Amendment right to file grievances and his Eighth Amendment right to be free from cruel and unusual punishment. (Doc. 1, at 3-4.) Plaintiff alleges that Defendants R. Davis, A. Buenrostro, C. Meza, A. Parker, R. Solis, R. Santiago, L. Ciborowski, D. Arguilez, S. Sanchez, K. Seibel, and Warden D. Paramo all retaliated against him for engaging in First Amendment conduct, and that Defendant Buenrostro sexually assaulted him during a pat-down search in violation of the Eighth Amendment. (Doc. 1, at 11-12.) Defendants have filed a motion for summary judgment on the following grounds: 1) Plaintiff failed to exhaust his administrative remedies as to all claims except the First Amendment retaliation claim against Defendant Buenrostro; 2) the undisputed evidence shows that Defendants did not retaliate against Plaintiff; and 3) the evidence shows that Defendant Buenrostro did not violate his Eighth Amendment rights or violate California law. For the following reasons, the Court recommends granting in part and denying in part Defendants' motion for summary judgment.

         II. ALLEGATIONS

         Plaintiff alleges that “Defendants conspired to retaliate against [him] for engaging in ‘protected conduct' when [he] petitioned for redress of his grievances.” (Doc. 1, at 19.) Plaintiff alleges that Defendants Davis and Buenrostro “engaged in a series of unlawful and repressive conduct against Plaintiff and other mentally ill inmates” when Plaintiff “attempted to access [RJ Donovan's] inmate appeal procedure to complain about these Defendants' conduct” which “were either screened out or were never responded to by [RJ Donvan's] prison officials.” (Doc. 1, at 10.) Plaintiff states that after he wrote the “class monitors” of the California Department of Corrections and Rehabilitation's mental health delivery system, appointed under Coleman v. Brown et al., 28 F.Supp.3d 1068 (E.D. Cal. April 10, 2014), Plaintiff was retaliated against and terrorized by Defendants A. Buenrostro, R. Davis, C. Meza, A. Parker, R. Solis, R. Santiago D. Arguilez, S. Sanchez, L. Ciborowski, K. Seibel, D. Paramo, and Warden J. Beard for engaging in First Amendment conduct. (Doc. 1, at 10-11.)

         Plaintiff claims that Defendants C. Meza and A. Buenrostro prohibited Plaintiff's ability to send written communications of public interest to government officials. (Doc. 1, at 19.) Plaintiff states that Defendant C. Meza “illegal[ly] obtained a copy of a written complaint Plaintiff had drafted and submitted” to the Department of Justice and gave the complaint to Defendant Buenrostro, who then concocted false allegations against Plaintiff in retaliation and arranged with other officers Plaintiff's transfer to another prison that caused Plaintiff “to experience an exacerbation in his mental illness.” (Doc. 1, at 12.) Plaintiff claims that Defendants A. Parker and A. Buenrostro conducted a cell search and confiscated legal documents from Plaintiff including a civil rights complaint that was about to be filed. (Doc. 1, at 20.) Plaintiff claims that Defendants Davis, Meza, and Buenrostro falsely labeled Plaintiff a “snitch, ” causing him to be attacked by other inmates, in retaliation for exercising his First Amendment rights. (Doc. 1, at 21-24.) Plaintiff claims that Defendant K. Seibel, the deputy chief warden, conspired to retaliate against Plaintiff for filing grievances by authorizing the illegal activities of the other correctional officers under her and by placing him on a list for transfer to another CDCR facility. (Doc. 1, at 14-15, 23.)

         Finally, Plaintiff alleges that Defendant Buenrostro conducted a clothed body search of Plaintiff on April 2, 2014 and intentionally rubbed Plaintiff's private parts for sexual gratification in retaliation for exercising his First Amendment rights. (Doc. 1, at 11-12.) Plaintiff also accuses Buenrostro of sexual assault and battery in violation of California law and his Eighth Amendment's rights. (Doc. 1, at 21-23, 28.) Plaintiff alleges that on that same day, Buenrostro wrote up a false and retaliatory rules violation report against him for exercising his constitutional rights. (Doc. 1, at 11.)

         III. EVIDENCE PRESENTED

         A. Defendants' Proffer

         Plaintiff has filed administrative appeals as far back as 1989, and submitted appeals at RJ Donovan every year between 2001 and 2007, before submitting more appeals at RJ Donovan when he was transferred back there in 2014. (Doc. 116, Exhibit B.) Plaintiff has submitted administrative appeals for third-level review since 2005, and submitted approximately nine administrative appeals for third-level review between 2005 and 2014. (Decl. M. Voong, ¶ 10 and Doc. 116, Exhibit A.) In 2014, the year in which all of the events in this lawsuit are alleged to have occurred, Plaintiff properly submitted only two administrative appeals. (Doc. 116, Exhibit A.) In one of them, Log No. RJD-14-1803, Plaintiff appealed the rules violation report authored by Officer Buenrostro on April 2, 2014, and the guilty finding made against him on May 1, 2014, based on that report. (Doc. 116, Exhibit A.) When Plaintiff originally submitted the appeal, Officer Buenrostro was the only Defendant named in it. (Doc. 116, Exhibit A.) The subject matter of this administrative appeal was limited to the rules violation report authored by Officer Buenrostro and the guilty finding made against Plaintiff. (Doc. 116, Exhibit A.) Plaintiff's contention was that Officer Buenrostro filed a “false” rules violation report against him in retaliation for prior grievances. (Doc. 116, Exhibit A.) The administrative appeal did not contain any allegations that Officer Buenrostro improperly searched Plaintiff, intentionally rubbed Plaintiff's private parts for sexual gratification, or any of the other allegations made against Officer Buenrostro in this lawsuit. (Doc. 116, Exhibit A.) After prison officials at RJ Donovan conducted the second-level review of appeal Log No. RJD-14-1803, Plaintiff completed Section F, requesting third-level review. (Decl. B. Self, ¶ 11.) Plaintiff attempted to name other Defendants in this lawsuit, including Captain Sanchez and Associate Warden Siebel, and to add new allegations. (Decl. B. Self, ¶ 11.) Under California regulations, prisoners cannot expand the scope of the appeal and add new issues or individuals after it is originally submitted. (Decl. B. Self, ¶ 11.) Plaintiff did not properly submit any other administrative appeals naming Defendants in 2014. (Decl. B. Self, ¶ 12.) Plaintiff submitted approximately seven other administrative appeals at RJ Donovan in 2014 that were screened out or cancelled for various reasons. (Decl. B. Self, ¶ 14.) In most cases, those appeals were screened out because Plaintiff attempted to include multiple issues in the same appeal, because he failed to provide specific names or dates, or because he failed to use the CDCR-22 “Request for Interview” form, where appropriate. (Decl. B. Self ¶ 14.) In each case, the appeals office issued Plaintiff a screen-out letter explaining to him how he could properly resubmit the appeals. (Decl. B. Self, ¶ 14.) The only administrative appeal that Plaintiff submitted to the Office of Appeals for third-level review in 2014 was Institutional Log No. RJD-14-1803, the one concerning the rules violation report issued by Officer Buenrostro on April 2, 2014. (Decl. M. Voong, ¶ 9.)

         Defendant Buenrostro declared that he did not take any adverse action against Plaintiff because Plaintiff corresponded with the “class monitors” of CDCR's mental health delivery system, appointed under Coleman v. Brown et al., or for any other reason. (Buenrostro Decl. ¶ 2.) Defendant Buenrostro stated that he never refused to process Plaintiff's outgoing mail and that he never interfered with Plaintiff's outgoing or incoming mail. (Buenrostro Decl. ¶ 3.) Defendant Buenrostro was monitoring the inmates in Housing Unit A-1 on April 2, 2014. (Buenrostro Decl. ¶ 3.) Defendant Buenrostro ordered Plainitff to leave the housing unit and go to the dining hall for breakfast or return to his cell, but he stated that Plaintiff ignored his orders. (Buenrostro Decl. ¶ 3.) Defendant Buenrostro approached Plaintiff and again ordered Plaintiff to leave the housing unit or return to his cell and Plaintiff responded, “Don't worry about what I'm doing, stupid Mexican.” (Buenrostro Decl. ¶ 3.) Defendant Buenrostro stated that he searched Plaintiff because Plaintiff's actions were suspicious and unusual. (Buenrostro Decl. ¶ 4.) Defendant Buenrostro told Plaintiff that Plaintiff is expected to follow orders and procedures within the housing unit. (Buenrostro Decl. ¶ 4.) Plaintiff was agitated and angry and responded “Fuck you stupid Mexican. I'm going to do what I want to do.” (Buenrostro Decl. ¶ 4.) Defendant Buenrostro placed Plaintiff in handcuffs because of Plaintiff's unusual behavior and agitated state, and as a safety precaution, Plaintiff was escorted to the Program Support Unit. (Buenrostro Decl. ¶ 4.) Defendant Buenrostro declared that he did not use excessive or improper force on Plaintiff at any time during the incident and clothed body search on April 2, 2014. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro stated that he did not sexually assault Plaintiff during that search and did not rub Plaintiff's private parts for sexual gratification. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro searched Plaintiff because his actions were suspicious, and Defendant Buenrostro knew that Plaintiff was not assigned to cell 210. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro also knew, based on his training, education, and personal experience within CDCR, that inmates often try to go to other cells for improper purposes such as delivering or obtaining contraband including drugs, weapons, currency, or electronic equipment or other property that is not theirs. (Buenrostro Decl. ¶ 5.) This, and Plaintiff's agitated state, were the only reasons why Defendant Buenrostro performed a clothed body search of Plaintiff. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro wrote a 115 Rules Violation Report charging Plaintiff with behavior that leads to violence in violation of California Code of Regulations, Title 15, section 3005(d). (Buenrostro Decl. ¶ 6 and Exhibit A.) Defendant Buenrostro stated that he did not write this report in retaliation. (Buenrostro Decl. ¶ 6 and Exhibit A.) This Rules Violation Report was heard by a senior hearing officer, Correctional Lieutenant R. Davis, on May 1, 2014. (Buenrostro Decl. ¶ 6 and Exhibit A thereto.) Lt. Davis found Plaintiff not guilty of behavior that leads to violence, but instead found him guilty of the lesser included offense of openly displaying disrespect in violation of California Code of Regulations, Title 15, section 3004 (b). Lt. Davis's finding was based upon a preponderance of the evidence submitted at the hearing. (Buenrostro Decl. ¶ 6 and Exhibit A.) This evidence included Defendant Buenrostro's written report which stated in part that Plaintiff said “don't worry about what I'm doing stupid Mexican, ” and the testimony of Correctional Counselor Hailey, who told Lt. Davis that he heard Plaintiff call Defendant Buenrostro “a Mexican.” (Buenrostro Decl. ¶ 6 and Exhibit A.) Plaintiff was assessed thirty days forfeiture of good-time credits, thirty days loss of evening yard privileges, and thirty day loss of dayroom privileges. (Buenrostro Decl. ¶ 6 and Exhibit A.) This 115 Rules Violation Report's guilty finding has not been overturned by the CDCR. (Buenrostro Decl. ¶ 6 and Exhibit A.)

         Defendant Buenrostro never contacted Sergeant Sanchez to plot Plaintiff's transfer to another prison, knowing that doing so would exacerbate Plaintiff's mental illness. (Buenrostro Decl. ¶ 8.) Defendant Buenrostro did not have authority to have an inmate transferred, and he had no influence over the decision to transfer an inmate. (Buenrostro Decl. ¶ 8.) Defendant Buenrostro has never sat on any of Plaintiff's classification committees, nor has he ever acted as a Classification Staff Representative reviewing any action concerning Plaintiff. (Buenrostro Decl. ¶ 10.)

         Defendants Buenrostro and Parker did not confiscate a civil rights lawsuit during a search of Plaintiff's cell on June 3, 2014. (Buenrostro Decl. ¶ 11; Parker Decl. ¶ 2.) Defendants Buenrostro and Parker did not “concoct” false disciplinary charges against Plaintiff. (Buenrostro Decl. ¶ 12; Parker Decl. ¶ 6.) Defendants Buenrostro and Parker were working as the Floor Officers in Housing Unit A-1 at RJ Donovan on June 3, 2014. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) Defendants Buenrostro and Parker randomly chose to search Plaintiff's cell that day. (Buenrostro ¶¶ 13, 15; Parker Decl ¶ 2, 4.) Defendant Parker discovered a small, clear plastic bag lying on the lower-bunk mattress underneath a blue, state-issued jacket. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) The bag was filled with tobacco. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) The lower bunk was assigned to Plaintiff at that time. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) Defendant Parker took possession of the tobacco and disposed of it per institutional procedures. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) Defendant Parker did not “plant” the bag of tobacco on Plaintiff's bunk. (Parker Decl. ¶ 4.) Defendant Parker wrote a 115 Rules Violation Report charging Plaintiff with possession of contraband (tobacco) in violation of California Code of Regulations, Title 15, section 3006. (Buenrostro Decl. ¶ 14; Parker Decl. ¶ 3 and Exhibit A.) This Rules Violation Report was heard by a senior hearing officer, Correctional Lieutenant R. Davis, on July 2, 2014. (Buenrostro Decl. ¶ 14; Parker Decl. ¶ 3 and Exhibit A.) Lt. Davis ultimately found Plaintiff not guilty of this charge and dismissed the rules violation report because of insufficient evidence. (Buenrostro Decl. ¶ 14; Parker Decl. ¶ 3 and Exhibit A.) Defendants Buenrostro and Parker did not search Plaintiff's cell in retaliation for any protected conduct that Plaintiff may have engaged in, or for any other improper reason. (Buenrostro Decl. ¶ 15; Parker Decl. ¶ 4.) Defendants Buenrostro and Parker searched Plaintiff's cell because they were required to perform three to five random cell searches during their shifts as floor officers. (Buenrostro Decl. ¶ 15; Parker Decl. ¶ 4.) Defendant Parker did not conspire with Buenrostro, or any other correctional staff member or inmate, to file false disciplinary charges against Plaintiff, and no one ever asked or suggested that Parker do so. (Parker Decl. ¶ 6.)

         Defendant Buenrostro neither manufactured any charges against Plaintiff at any time, nor has he asked or pressured others to do so. (Buenrostro Decl. ¶ 20.) Defendant Buenrostro has never taken any adverse action against Plaintiff that was not based upon a legitimate, penological reason. (Buenrostro ¶ 20.) Defendant Buenrostro never told Plaintiff that he would “get some payback” and never attempted to set up Plaintiff to be injured by other inmates. (Buenrostro Decl. ¶ 22.) Defendant Buenrostro is not aware of any report or instance where Plaintiff was attacked by other inmates from April through October 2014, and he is not aware of any reports evidencing such an attack. (Buenrostro Decl. ¶ 22.) Defendant Buenrostro has never threatened Plaintiff or bribed or caused another inmate to assault, attack or hurt Plaintiff. (Buenrostro Decl. ¶ 22-24.) Defendant Buenrostro has never called Plaintiff a snitch or child molester at any time. (Buenrostro ¶ 21.) In addition to creating a threat of harm to the inmate and a security risk to the institution, Defendants would have faced severe disciplinary action from their supervisors and the prison administration had they called any inmate a “snitch” or a “child molester.” (Buenrostro ¶ 21.)

         Defendant Seibel reviewed Plaintiff's transfer data on CDCR's Strategic Offender Management System (SOMS). (Seibel Decl. ¶ 5.) SOMS contains data on each CDCR inmate's case factors. (Seibel Decl. ¶ 5.) The information in SOMS shows that Plaintiff was not placed on a transfer list in September and October 2014 to be sent out of RJ Donovan. (Seibel Decl. ¶ 6.) Defendant Seibel does not have unilateral authority to place an inmate on a transfer list. (Seibel Decl. ¶ 6.) Plaintiff's records showed that RJ Donovan reviewed his case on February 18, 2014. (Seibel Decl. ¶ 8.) Plaintiff's case was referred to the CSR with a recommendation that Plaintiff be retained at RJ Donovan. (Seibel Decl. ¶ 8 and Exhibit A.) The CSR endorsed the UCC's recommendation on March 26, 2014, and Plaintiff remained at RJ Donovan. (Seibel Decl. ¶ 8 and Exhibit B thereto.) This ruling was upheld at ...


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