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Ransom v. Herrera

United States District Court, E.D. California

June 25, 2019

LEONARD RANSOM, JR., Plaintiff,
v.
DANNY HERRERA and RICKY BRANNUM, Defendants.

         FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE BE DENIED, THAT PLAINTIFF'S MOTION TO STRIKE THE AMENDED DECLARATION OF B. FEINBERG BE DENIED, THAT PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT BE DENIED, AND THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED IN PART AND DENIED IN PART (ECF NOS. 206, 223, 228, & 235) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS ORDER GRANTING PLAINTIFF'S APPLICATION TO EXCEED PAGE LIMITS (ECF NO. 234)

         I. BACKGROUND

         Leonard Ransom, Jr. (“Plaintiff”), is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. “This action now proceeds on Plaintiff's Second Amended Complaint (ECF No. 72), against defendants Brannum and Herrera on Plaintiff's Fourteenth Amendment procedural due process claim, Fourteenth Amendment substantive due process claim under Devereaux, retaliation claim, section 1983 malicious prosecution claim, and conspiracy claim.” (ECF No. 77, p. 2).

         On December 10, 2018, Defendants filed a motion for summary judgment. (ECF No. 223). On December 11, 2018, Defendants filed an amended declaration of B. Feinberg, MD, in support of their motion for summary judgment. (ECF No. 224). On February 21, 2019, Plaintiff filed his opposition to the motion for summary judgment and cross-motion for summary judgment (ECF No. 235), his response to Defendants' separate statement of undisputed facts (ECF No. 233), and an application requesting that his opposition be allowed to exceed the page limits (ECF No. 234).[1] On March 22, 2019, Defendants filed their reply, their response in support of their separate statement of undisputed facts, and objections to Plaintiff's evidence. (ECF No. 238).

         Defendants' motion for summary judgment is now before the Court, as is Plaintiff's cross-motion for summary judgment, Plaintiff's request for judicial notice (ECF No. 206) and Plaintiff's motion to strike the amended declaration of B. Feinberg, MD (ECF No. 228). For the reasons that follow, the Court will recommend that Plaintiff's cross-motion for summary judgment, request for judicial notice, and motion to strike be denied. The Court will also recommend that Defendants' motion for summary judgment be granted in part and denied in part.

         II. BACKGROUND

         a. Summary of Plaintiff's Claims

         Plaintiff alleges that on March 4, 2009, Defendants approached Plaintiff's cell in order to transport Plaintiff to a medical appointment. Defendants were verbally abusive, and told Defendants that he was not going to go. Defendant Brannum then told Plaintiff that he would say that Plaintiff assaulted his officer. Plaintiff was then charged with an RVR for battery on a peace officer, and later received criminal charges based on the same false allegations. Plaintiff alleges that Defendants conspired to give him the false charges because he refused to implicate himself in a prior criminal case based on an alleged staff assault.

         The criminal charges based on the 2009 incident were dropped in September of 2010, and on July 22, 2011, Plaintiff was found not guilty of the RVR based on the 2009 incident. However, Plaintiff was subjected to a prolonged period in administrative segregation prior to the resolution of the RVR, and had to defend against the false criminal charges.

         b. Relevant Background Facts

         The facts below are either undisputed, or are facts that Plaintiff supported with admissible evidence.[2]

         Plaintiff received a Rules Violation Report (“RVR”) for battery on a peace officer based on an earlier incident that occurred on May 22, 2007. Separate Statement of Undisputed Facts (“SSUF”) 1.[3] “The Kern County District Attorney's Office elected to prosecute Plaintiff based on the events of May 22, 2007.” (ECF No. 223-2, p. 9). Plaintiff was placed in administrative segregation at Kern Valley State Prison on May 22, 2007. SSUF 2.

         On March 4, 2009, Plaintiff was at Kern Valley State Prison in administrative segregation. SSUF 4. What occurred on this date is disputed. Defendants contend, and presented evidence, that Plaintiff grabbed defendant Herrera. (ECF No. 223-4, p. 2, ¶ 5). Plaintiff contends, and presented evidence, that “[a]t no time did [he] touch, grab, or in any way, batter Defendant Herrera, or take any clothing from his person, on March 4, 2009, as alleged by Defendant Herrera, or Brannum.” (ECF No. 235, p. 5, ¶ 15). Additionally, Plaintiff presented evidence that, as defendant Herrera was walking away from him, defendant Brannum stated “I'll say you assaulted my officer….” (Id. at ¶ 17).

         On that same day, Plaintiff was charged with battery on a peace officer. SSUF 5.[4]Additionally, on August 3, 2009, Plaintiff was criminally charged based on the allegation that he assaulted defendant Herrera. (ECF No. 223-13, pgs. 52-55)

         Plaintiff agreed to plead no contest to Count 1 of the criminal charges based on the 2007 incident in exchange for dismissal of the other charges based on the 2007 incident, as well as dismissal of the charges based on the 2009 incident. SSUF 22. Plaintiff entered his plea sometime in September of 2010. (ECF No. 235, p. 29; SSUF 21).

         Plaintiff was transferred to North Kern State Prison on January 5, 2010. SSUF 17. Plaintiff was transferred from North Kern State Prison to California Correctional Institution on June 10, 2010. SSUF 18. Plaintiff was housed in general population housing at California Correctional Institution from June 10, 2010, until March 29, 2011. SSUF 29. From March 29, 2011, through November 1, 2011, Plaintiff was housed in administrative segregation at California Correctional Institution. SSUF 31, 32, 33, 46, 47, 48, 49, & 66. “The ICC made the decision to retain in ASU because Plaintiff had two pending RVRs and CDCR policy prefers resolution of outstanding disciplinary matters before transfer, if possible.” (ECF No. 223-2, p. 29).

         The RVR based on the 2009 incident was adjudicated on July 22, 2011, and Plaintiff was found not guilty. SSUF 35 & 36. The RVR based on the 2007 incident was adjudicated on July 29, 2011, and Plaintiff was found guilty. SSUF 39 & 40.

         c. Current Claims

         The Court screened Plaintiff's Second Amended Complaint, and allowed Plaintiff to proceed “against defendants Brannum and Herrera on Plaintiff's Fourteenth Amendment procedural due process claim, Fourteenth Amendment substantive due process claim under Devereaux, retaliation claim, section 1983 malicious prosecution claim, and conspiracy claim.” (ECF Nos. 76 & 77). All other claims and defendants were dismissed with prejudice. (Id.).

         III. PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

         In Plaintiff's opposition to Defendants' motion for summary judgment, he states that he cross-moves for summary judgment. (ECF No. 235, p. 2). However, it does not appear that Plaintiff intended to move for summary judgment. Plaintiff has not shown, and does not even argue, that he is entitled to summary judgment on his claims. In fact, throughout his opposition, he states that there are material disputes of fact related to his claims. See, e.g., ECF No. 235, p. 44 (Defendants “are not entitled to summary judgment on Plaintiff's conspiracy claim as genuine issues of material fact are in dispute, precluding summary judgment….”). Moreover, in his conclusion, he states that Defendants' “motion for summary judgment should be denied, and Plaintiff should be allowed to proceed to trial on the remaining claims.” (Id. at 69). He does not ask that he be granted summary judgment as to any claim. (Id.).

         Accordingly, the Court will recommend that Plaintiff's cross-motion for summary judgment be denied.

         IV. PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE

         On September 10, 2018, Plaintiff filed a request for judicial notice. (ECF No. 206). Plaintiff asks the Court to take judicial notice of a 60 Minutes segment titled “Reforming Solitary Confinement at Infamous California Prison.” (Id. at 1). The segment “was regarding the ‘nationwide reform movement that is reducing the use of solitary confinement.'” (Id.).

         During an interview on the segment, “Secretary Scott Kernan, when asked, by Oprah Winfrey, about the psychological effects of solitary confinement on offenders placed in solitary confinement, admitted that ‘the policy was … a mistake' and [with respect to solitary confinement] ‘it didn't work because of the impact on the offenders.'” (Id. at pgs. 1-2) (alterations in original). Additionally, when Oprah Winfrey asked Scott Kernan if solitary confinement drives men mad, Scott Kernan responded “I think it does.” (Id. at 2).

         Finally, Plaintiff asks the Court to take judicial notice of the fact that administrative segregation is solitary confinement.

         On September 18, 2018, Defendants filed their objections to Plaintiff's request. (ECF No. 208). Defendants argue that “Plaintiff has not demonstrated that the facts that he seeks the Court to judicially notice are capable of accurate and ready determination.” (Id. at 3).

         “The Court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). “The Court… must take judicial notice if a party requests it and the court is supplied with the necessary information.” Fed.R.Evid. 201(c)(2). However, the Court cannot take judicial notice of disputed matters. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001).

         As it is disputed that administrative segregation is solitary confinement, the Court may not take judicial notice of this fact.

         As to the statements of Scott Kernan, Plaintiff appears to ask the Court to take judicial notice of his statements for the truth of the matters asserted. However, Plaintiff has failed to show that Scott Kernan is a source whose accuracy cannot reasonably be questioned.

         As to Plaintiff's request for the Court to take judicial notice that there was a 60 Minutes Segment “regarding the ‘nationwide reform movement that is reducing the use of solitary confinement, '” this fact has no relevance to this motion, and appears to have no relevance to this case.

         Accordingly, the Court recommends that Plaintiff's request for judicial notice be denied.

         V. PLAINTIFF'S MOTION TO STRIKE THE AMENDED DECLARATION OF

         B. FEINBERG, MD

         On December 26, 2018, Plaintiff filed a motion to strike the amended declaration of B. Feinberg, MD. (ECF No. 228). On January 9, 2019, Defendants filed their opposition to the motion. (ECF No. 231). On January 22, 2019, Plaintiff filed his reply. (ECF No. 232).

         Plaintiff argues that the amended declaration should be stricken because it was submitted to harass Plaintiff, and because it was not timely. Plaintiff alleges that he is prejudiced by the piecemeal filings and harassment.

         Defendants argue that Plaintiff's motion should be denied. According to Defendants, Plaintiff was timely provided with Dr. Feinberg's declaration. The reason Defendants filed an amended declaration is that the original was filed without a completed signature page. Defendants filed the amended declaration as soon as they noticed the error, which was one day after they filed their motion for summary judgment.

         “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). However, “[m]otions to strike are generally viewed with disfavor, and will usually be denied unless the allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties.” Campbell v. Pricewaterhouse Coopers, LLP, 2007 WL 841694, at *2 (E.D. Cal. Mar. 20, 2007).

         “Under the express language of [Rule 12(f)], only pleadings are subject to motions to strike.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, this does not mean that courts are powerless to strike documents that are not pleadings. Instead, when striking documents that are not pleadings, the Court relies on its inherent power to control its docket. Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404-05 (9th Cir. 2010); Franklin v. United States, 2012 WL 5954016, at *1 (E.D. Cal. 2012).

         Plaintiff is correct that the amended declaration was filed after the dispositive motion deadline. However, Plaintiff does not dispute that the only change to the declaration was the addition of a signature, and he has not shown how the addition, which was filed only one day after the dispositive motion deadline, prejudiced him.[5] Additionally, Plaintiff has provided no evidence that the amended declaration was filed with the intent to harass Plaintiff.

         Accordingly, the Court will recommend that Plaintiff's motion to strike the amended declaration of B. Feinberg, MD, be denied.

         VI.DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

         a. Legal Standards for Summary Judgment

         Summary judgment in favor of a party is appropriate when 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); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a genuine dispute about material facts, summary judgment will not be granted.”). A party asserting that a fact cannot be disputed must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         A party moving for summary judgment “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 Fed.R.Civ.P. 56(c)). If the moving party moves for summary judgment on the basis that a material fact lacks any proof, the Court must determine whether a fair-minded jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322. “[C]onclusory allegations unsupported by factual data” are not enough to rebut a summary judgment motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), citing Angel v. Seattle-First Nat'l Bank, 653 F.2d 1293, 1299 (9th Cir. 1981).

         In reviewing the evidence at the summary judgment stage, the Court “must draw all reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It need only draw inferences, however, where there is “evidence in the record… from which a reasonable inference… may be drawn…”; the court need not entertain inferences that are unsupported by fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, “[t]he evidence of the non-movant is to be believed….” Anderson, 477 U.S. at 255. Moreover, the Court must liberally construe Plaintiff's filings because he is a prisoner proceeding pro se in this action. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

         In reviewing a summary judgment motion, the Court may consider other materials in the record not cited to by the parties, but is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

         a. Plaintiff's Section 1983 Malicious Prosecution Claim

         A. Defendants' Position

         Defendants argue that they are entitled to summary judgment on Plaintiff's § 1983 malicious prosecution claim because Plaintiff did not have a favorable termination of his criminal case. “The Kern County District Attorney charged Plaintiff with one count of battery upon an officer and one count of resisting an officer in the performance of duty following the events on March 4, 2009.” (ECF No. 223-2, p. 18). At the time Plaintiff received the charges in the criminal case at issue in this lawsuit, there were criminal proceedings pending as a result of the incident in 2007. “On September 10, 2010, Plaintiff knowingly and voluntarily entered into a plea agreement, wherein Plaintiff pleaded no contest to an Amended Count I [in the criminal case stemming from the 2007 incident], and admitted to two prior offenses in the 2007 Case. The remaining count in the 2007 case was dismissed, and the 2009 case was dismissed entirely.” (Id.) (citations omitted).

         Thus, although all charges related to the 2009 incident were dropped, they were dropped due to a plea agreement. Accordingly, the dismissal of the 2009 case does not indicate Plaintiff's innocence, “but was the result of a negotiated plea agreement between Plaintiff and the District Attorney.” (Id. at 19). Thus, Plaintiff has failed “to establish an essential element of his malicious prosecution claim, and Defendants are entitled to summary judgment.” (Id. at 20).

         B. Plaintiff's Position

         “Plaintiff concedes the Defendant[s'] are entitled to summary judgment on the malicious prosecution claim, as Plaintiff cannot establish that the criminal proceedings terminated in favor of Plaintiff, as required.” (ECF No. 235, p. 67).[6]

         C. Legal Standards

         “In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff must show that the defendants prosecuted [him] with malice and without probable cause, and that they did so for the purpose of denying [him] equal protection or another specific constitutional right. Malicious prosecution actions are not limited to suits against prosecutors but may be brought, as here, against other persons who have wrongfully caused the charges to be filed.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (alterations in original) (citations and internal quotation marks omitted). The Ninth Circuit has also explained that, “[i]n this circuit, the general rule is that a claim of malicious prosecution is not cognizable under 42 U.S.C. § 1983 if process is available within the state judicial system to provide a remedy. However, an exception exists to the general rule when a malicious prosecution is conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights.” Usher v. City of Los Angeles, 828 F.2d 556, 561-62 (9th Cir. 1987) (citations and internal quotation marks omitted).

         The Ninth Circuit has “incorporated the relevant elements of the common law tort of malicious prosecution into [the] analysis under § 1983.” Id. “The essential elements of the tort are the same in both the criminal and the civil contexts. In every case, in order to establish a cause of action for malicious prosecution a plaintiff must plead and prove that the prior proceeding, commenced by or at the direction of the malicious prosecution defendant, was: (1) pursued to a legal termination favorable to the plaintiff; (2) brought without probable cause; and (3) initiated with malice.” Villa v. Cole, 4 Cal.App.4th 1327, 1335 (1992). See also McCubbrey v. Veninga, 39 F.3d 1054, 1055 (9th Cir. 1994). A plaintiff must also show “resulting damage….” Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir.2008) (quoting Harbor Ins. Co. v. Cent. Nat'l Ins. Co., 165 Cal.App.3d 1029, 211 Cal.Rptr. 902, 907 (1985)).

         D. Analysis

         As Plaintiff concedes that Defendants are entitled to summary judgment on Plaintiff's malicious prosecution claim because Plaintiff is unable to show that the criminal proceedings were pursued to a legal termination favorable to him due to the charges being dropped pursuant to a plea ...


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