United States District Court, E.D. California
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)
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).
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). 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).
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.
Summary of Plaintiff's Claims
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.
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.
Relevant Background Facts
facts below are either undisputed, or are facts that
Plaintiff supported with admissible evidence.
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. “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.
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).
same day, Plaintiff was charged with battery on a peace
officer. SSUF 5.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)
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).
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).
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.
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.
PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
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.).
the Court will recommend that Plaintiff's cross-motion
for summary judgment be denied.
PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE
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.'”
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).
Plaintiff asks the Court to take judicial notice of the fact
that administrative segregation is solitary confinement.
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).
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).
is disputed that administrative segregation is solitary
confinement, the Court may not take judicial notice of this
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.
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
the Court recommends that Plaintiff's request for
judicial notice be denied.
PLAINTIFF'S MOTION TO STRIKE THE AMENDED DECLARATION
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).
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.
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.
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).
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).
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. Additionally, Plaintiff has
provided no evidence that the amended declaration was filed
with the intent to harass Plaintiff.
the Court will recommend that Plaintiff's motion to
strike the amended declaration of B. Feinberg, MD, be denied.
MOTION FOR SUMMARY JUDGMENT
Legal Standards for Summary Judgment
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.
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
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).
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).
Plaintiff's Section 1983 Malicious Prosecution
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).
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).
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.
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).
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)).
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