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Burton v. Foulk

United States District Court, E.D. California

September 24, 2019

F. FOULK, et al., Defendants.



         Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendants interfered with his access to the courts, retaliated against him, and used excessive force in violation of his constitutional rights. Before the court is defendants’ motion for summary judgment. For the reasons set forth below, this court will recommend defendants’ motion be granted in part and denied in part.


         I. Allegations in the SAC

         This case is proceeding on plaintiff’s second amended complaint (“SAC”) filed here on October 2, 2015. (ECF No. 15.) His allegations involve conduct that occurred in 2011, 2012, and 2013 when he was incarcerated at High Desert State Prison (“HDSP”).

         A. Allegations against Correctional Officer Chenoweth

         In June 2011, plaintiff was told by defendant Chenoweth that library technical assistant (“LTA”) Davis was afraid of him and, therefore, he was barred from the law library. (ECF No. 15 at 10.) Chenoweth told plaintiff that if he visited the law library, Chenoweth would write him up for a rules violation. In July 2011, plaintiff filed a suit in Lassen County Superior Court against LTA Davis for denial of access to the law library. (Id.) That case was Burton v. Davis, No. 54414. He contends he had no law library access until the superior court judge ordered the prison to provide him access on February 24, 2012. (Id. at 11.)

         Plaintiff prepared a subpoena for Chenoweth to get his statement that plaintiff was barred from the law library. On March 29, 2012, the sheriff’s office served the subpoena “for a hearing to be held on April 16, 2012.” (Id.) Plaintiff also alleges that he had subpoenaed “multiple correctional officers” in that suit. (Id. at 8.)

         On June 26, 2012, plaintiff was pushing his cellmate in a wheelchair when defendant Chenoweth stated “for no good reason, ‘Burton you need to stop talking shit.’” As plaintiff was walking away, Chenoweth called his name twice. Plaintiff walked back towards Chenoweth and Chenoweth sprayed plaintiff with pepper spray. (Id. at 10-11.) Plaintiff filed a grievance complaining of Chenoweth’s conduct. (Id. at 36.)

         In December 2012, Chenoweth refused to give plaintiff a food tray, laughed and mocked plaintiff, and asked plaintiff “what’s your phone no. big boy.” (Id. at 11.)

         B. Allegations against Correctional Officer Whitaker

         On September 26, 2012, defendant Whitaker escorted plaintiff to a security holding cell for about two hours. Whitaker then searched plaintiff’s cell. When plaintiff returned to his cell, he found that some of his legal papers had been torn and some had been destroyed. Some of the destroyed documents related to plaintiff’s opposition to a summary judgment motion in his Lassen County Superior Court suit. Plaintiff appears to allege that the missing documents prevented him from showing that a subpoena duces tecum was properly served. (ECF No. 15 at 7-8.)

         C. Allegations against Correctional Officers Pine and Cisneros

         On April 17, 2013 plaintiff was escorted from his cell for an attorney visit. During that time, Pine and Cisneros searched his cell and destroyed some legal papers and books. When plaintiff asked why they had done so, Cisneros said “think about it” and Pine said “we will be back.” Plaintiff also discovered that Pine and Cisneros had destroyed other property, including plaintiff’s typewriter. At that time, plaintiff was working on a brief for his appeal of the Lassen County case. His appellate brief in this case, no. C072451, was due in May 2013. Because of this destruction, plaintiff was “unable to finish as he started on the open brief.” (ECF No. 15 at 8-9.)

         II. Procedural Background

         On screening, the court found plaintiff stated the following cognizable claims against the following defendants: (1) interference with plaintiff’s access to the courts against defendant Whitaker; (2) interference with access to the courts against defendants Cisneros and Pine; (3) retaliation against defendant Chenoweth; and (4) excessive force against defendant Chenoweth. (ECF No. 18 at 5.) In June 2018, defendants filed an answer. (ECF No. 24.)

         On January 18, 2019, defendants filed a motion for summary judgment. (ECF No. 33.) Plaintiff opposed the motion (ECF No. 37) and defendants filed a reply (ECF No. 41).


         Defendants move for summary judgment on the following grounds: (1) plaintiff’s excessive force claim against Chenoweth is barred by Heck v. Humphrey; (2) plaintiff fails to establish he suffered an actual injury as a result of either of his access to courts claims; (3) plaintiff failed to exhaust his administrative remedies for his access to courts claim against Cisneros and Pine; and (4) plaintiff failed to exhaust his retaliation claim against defendant Chenoweth.

         I. Summary Judgment Standards under Rule 56

         Summary judgment is appropriate when the moving party “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 “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this 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 by showing that such materials “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), (B).

         When the non-moving party bears the burden of proof at trial, “the moving party need only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.); see also Fed.R.Civ.P. 56(c)(1)(B). 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. See Celotex, 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. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment . . . is satisfied.” 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 does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party typically 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 the dispute exists. See Fed.R.Civ.P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. However, a complaint that is submitted in substantial compliance with the form prescribed in 28 U.S.C. § 1746 is a “verified complaint” and may serve as an opposing affidavit under Rule 56 as long as its allegations arise from personal knowledge and contain specific facts admissible into evidence. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (accepting the verified complaint as an opposing affidavit because the plaintiff “demonstrated his personal knowledge by citing two specific instances where correctional staff members . . . made statements from which a jury could reasonably infer a retaliatory motive”); McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987); see also El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (Court reversed the district court’s grant of summary judgment because it “fail[ed] to account for the fact that El Bey signed his complaint under penalty of perjury pursuant to 28 U.S.C. § 1746. His verified complaint therefore carries the same weight as would an affidavit for the purposes of summary judgment.”). 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, 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         To show 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., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). 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 (citations omitted).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all reasonable inferences supported by the evidence in favor of the non-moving party.” Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). 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 587 (citation omitted).

         II. Is Plaintiff’s Excessive Force Claim Barred by Heck?

         Defendants argue that plaintiff’s claim that Chenoweth used excessive force when he pepper-sprayed plaintiff is barred under Heck v. Humphrey, 512 U.S. 477 (1994). Defendants contend that plaintiff was found guilty of a rules violation, assault on a peace officer, for the pepper spray incident and that he must receive a favorable termination of that rules violation through a habeas proceeding before he may seek damages regarding Chenoweth’s conduct.

         A. Legal Standards for Heck Bar

         In Heck v. Humphrey, the Supreme Court held that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983.” Heck, 512 U.S. at 481. A plaintiff cannot maintain a § 1983 action to recover damages for “harm caused by actions whose unlawfulness would render [his] conviction or sentence invalid” when his sentence and conviction have not previously been reversed, expunged, declared invalid, or called into question upon issuance of a writ of habeas corpus by a federal court. Id. at 486–87. The Supreme Court has extended this holding to civil-rights actions in which the plaintiff seeks declaratory or injunctive relief as well as damages. Edwards v. Balisok, 520 U.S. 641, 648 (1997).

         In Smith v. City of Hemet, the Ninth Circuit reiterated: “[I]f a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.” 394 F.3d 689, 695 (9th Cir. 2005) (quotation omitted). “Consequently, ‘the relevant question is whether success in a subsequent § 1983 suit would necessarily imply or demonstrate the invalidity of the earlier conviction or sentence.’” Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (quoting Heck, 512 U.S. at 487).

         In 2016, an en banc panel of the Ninth Circuit clarified the scope of habeas actions under Heck. In Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016), the court held that where success on the merits of a prisoner’s claim would not necessarily impact the fact or duration of his confinement, the claim would not fall within “the core of habeas corpus, ” and therefore is not appropriate in a habeas action. Nettles, 830 F.3d at 934–35. Thus, habeas jurisdiction is only established where the form of relief sought “would necessarily accelerate the prisoner's release from prison, or terminate his ...

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