United States District Court, N.D. California
ROBERT E. LEE, Plaintiff,
GARY LOREDO, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL
DISCOVERY; AND GRANTING DEFENDANTS' MOTION FOR SUMMARY
GONZALEZ ROGERS, United States District Judge
a pro se civil rights action pursuant to 42 U.S.C.
§ 1983 filed by Plaintiff Robert E. Lee, a state
prisoner currently housed at the San Quentin State Prison
(“SQSP”), alleging constitutional violations at
SQSP relating to retaliatory actions against his usage of the
administrative grievance process, including being fired from
his hand sander job on July 29, 2017. The operative complaint
is the amended complaint, in which Plaintiff alleges a
cognizable First Amendment claim against Defendants SQSP
California Prison Industry Authority (“CALPIA”)
Plant Manager Gary Loredo, SQSP CALPIA Supervisor Ron Glass,
and SQSP CALPIA Branch Manager Chuck Pattillo. Dkt. 11 at 2,
He seeks monetary damages. Id. at 5.
Order dated July 10, 2018, the Court screened Plaintiff's
amended complaint. See Dkt. 12. In his amended
complaint, Plaintiff did not re-allege his claims seeking
compensation for working at prison or alleging an equal
protection violation. See Dkt. 11. Instead,
Plaintiff amended only his retaliation claim. Therefore, in
its July 10, 2018 Order, the Court found that any claims
seeking compensation for working at prison or alleging an
equal protection violation were deemed dismissed for failure
to state a claim for relief. Dkt. 12 at 4. As for his claim
of retaliation, Plaintiff amended his conclusory retaliation
claim by specifically alleging that Defendants Loredo and
Glass retaliated against him for filing an administrative
grievance on December 20, 2016, and that Defendant Pattillo
retaliated against him by failing to act to prevent the acts
of retaliation by Defendants Loredo and Glass. Dkt. 11 at 4,
13-14. As mentioned above, the Court found that Plaintiff
stated a cognizable retaliation claim. Id. The Court
then directed the Clerk of the Court to serve the amended
complaint, and it issued a briefing schedule for the served
Defendants to file a dispositive motion. See Dkt. 12
parties are presently before the Court on Defendants'
dispositive motion. Dkt. 29. Defendants move for summary
judgment on the grounds that: (1) Plaintiff failed to exhaust
administrative remedies under the Prison Litigation Reform
Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a),
as to his claim that Defendants Loredo and Pattillo
retaliated against him; and (2) no genuine issues of material
fact in dispute exist because the indisputable evidence shows
that Defendants did not retaliate against Plaintiff. Dkt. 29
at 6-7. In addition, Defendants argue that they are entitled
to qualified immunity. Id. at 7. Plaintiff has filed
an opposition to Defendants' motion for summary judgment.
Dkt. 30. Defendants have filed a reply to Plaintiff's
opposition. Dkt. 33.
before the Court is Plaintiff's motion to compel
discovery. Dkt. 24. Defendants oppose Plaintiff's motion.
read and considered the papers submitted herewith, the Court
DENIES Plaintiff's motion to compel discovery and GRANTS
Defendants' motion for summary judgment.
PRELIMINARY ISSUE - PLAINTIFF'S MOTION TO COMPEL
addressing the merits of Defendants' motion for summary
judgment, the Court first resolves Plaintiff's motion to
December 13, 2018, Plaintiff filed a motion to compel
Defendants to answer his requests for admissions. Dkt. 24.
Defendants counter that they responded to Plaintiff's
requests for admissions in a timely manner, stating as
Plaintiff served his requests for admissions by mail to
Defendants Loredo and Glass on November 5, 2018.
(See Quinn [Dec. 13, 2018] Declaration, Ex.
“A.”) Because the thirty-third day after
Plaintiff's requests were served fell on Saturday,
December 8, 2018, Defendant Glass and Loredo's responses
to the request for admissions were timely served on December
10, 2018. (See Quinn [Dec. 13, 2018] Declaration,
Ex. “B.”) Because Defendants responded to
Plaintiff's requests in a timely manner, the motion to
compel should be denied.
Dkt. 25 at 2 (brackets and footnote added).
the Court finds that Plaintiff's motion to compel is
improper because Plaintiff failed to first meet and confer,
in violation of the Federal Rules of Civil Procedure and the
Court's Local Rules. See Fed. R. Civ. P.
37(a)(2)(A) (providing that a motion to compel must include
certification that the movant has in good faith conferred or
attempted to confer with non-disclosing party in an effort to
secure disclosure without court action); Civ. L.R. 37-1
(same). Had Plaintiff met and conferred with Defendants then
he would have discovered that Defendants were in the process
of answering his requests for admissions. See Dkt.
25 at 2. In any event, the record shows that Defendants have
since submitted responses to Plaintiff's request for
admissions. See Quinn [Dec. 13, 2018] Decl., Ex. B.
Therefore, Plaintiff's motion to compel is DENIED. Dkt.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff's Retaliation Claim
July 10, 2018 Order, the Court noted that Plaintiff provided
the following time line to give some background on his
retaliation claim, stating as follows:
In 2010, Plaintiff started having problems with his hands
because of the sander at his job. Id. at 3.
Plaintiff claims that he reported his problems to Defendant
Loredo, who told Plaintiff that his hands would be
“fixed.” Id. From 2010 through 2016,
Plaintiff claims he had four surgeries, but “to no
avail.” Id. Plaintiff claims that he was
informed that “his hands could not be fixed and were
fused together leaving permanent damage and pain.”
Id. (Plaintiff claims that he is currently on
“permanent pain medication.” Id.) On May
16, 2016, Plaintiff filed a Worker's Compensation Claim
of which Defendants Loredo and Glass were given notice.
Id. at 3-4. On December 20, 2016, Plaintiff filed an
administrative grievance requesting to receive
“worker['s] compensation benefits and any other
be[ne]fits that [he is entitled to] and no
retaliation.” See Dkt. 1 at 7.
On an unknown date in 2017 (presumably before Plaintiff was
fired on July 29, 2017), Plaintiff indicates that Defendants
Loredo and Glass found out about his aforementioned
grievance. Dkt. 11 at 4. Plaintiff states that Defendant
Loredo “got angry and directed Plaintiff to clean pipes
with asbestos dirt covering, [and] ordered Plaintiff to clean
paint . . . around dangerous chemical[s] in an attempt to
make Plaintiff quit his job . . . .” Id.
Plaintiff alleges that Defendant Glass “filed false
documents trying to get Plaintiff fired, a 128 chrono,
stating Plaintiff left work early falsely and [Defendant
Glass] ordered Plaintiff to clean toilets and mop floor[s]
[which] is not his job.” Id. Plaintiff further
alleges that he had informed Defendants Loredo and Glass
“numerous times” about the asbestos exposure from
“May and June 2016-17.” Id. at 14.
Finally, Plaintiff claims Defendant Pattillo worked with
Defendants Loredo and Glass during the time frame at issue
and “knew of a substantial risk . . . with regard to
the asbestos exposure” and “engaged in
retaliatory behavior against [Plaintiff] for bringing a legal
civil suit action . . . .” Id. at 14. Thus, it
seems that Plaintiff claims that Defendant Pattillo failed to
act to prevent the acts of retaliation by Defendants Loredo
and Glass. See Id. As mentioned above, Plaintiff was
ultimately discharged by Defendant Glass on July 29, 2017.
Id. at 5.
Dkt. 12 at 4-5 (footnote omitted). As mentioned above, the
Court found that, liberally construed, Plaintiff's
allegations satisfied the pleading requirements for a First
Amendment retaliation claim ...