Opinion
No. CV-F-04-5894 REC/LJO P.
March 14, 2006
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docs. 40, 63 101), GRANTING LEAVE TO DEFENDANTS TO FILE A SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT, AND REMANDING ACTION TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS.
On January 26, 2006, the United States Magistrate Judge recommended that the court deny plaintiff's motion for summary judgment and that the court grant in part and deny in part defendants' motion for summary judgment.
Defendants timely filed objections to the recommendation. Plaintiff has not filed objections to the recommendation.
The court has reviewed the record herein de novo. Except as otherwise specifically discussed herein, the court concurs with the recommendation.
Defendants assert in their objections to the recommendation that the Magistrate Judge "failed to consider the well-settled rule from Edwards v. Balisok, 520 U.S. 641, 648 (1997), that a prisoner cannot bring a § 1983 action for damages and declaratory relief challenging the procedures used in a disciplinary proceeding until any finding of guilt has been reversed or declared invalid."
Because defendants did not move for summary judgment on this ground, the Magistrate Judge cannot be faulted for failing to consider an issue not raised by the defendants. The court will not consider a ground raised for the first time in objections to a recommendation. Although the court could conclude that defendants waived this issue by failing to raise it to the Magistrate Judge, the court will not do so here given the potentially dispositive nature of this ground for summary judgment. Nonetheless, the court concludes that the issue cannot be resolved at this juncture because plaintiff will not have had an adequate opportunity to respond. The court will allow defendants to file a supplemental motion for summary judgment on the ground that plaintiff's claims are barred by Edwards v. Balisok.
Defendants further contend that the Magistrate Judge erred by agreeing with plaintiff's contention that defendant Rodriguez was ineligible to hear the disciplinary charge brought against plaintiff by defendant Aguirre.
However, plaintiff submitted eyewitness evidence raising a question of fact that defendant Rodriguez was present during the pruno (alcohol) sweep. Therefore, defendants' objection to the recommendation on this ground is without merit.
Defendants contend that the Magistrate Judge erred in denying their motion for summary judgment on the ground that plaintiff submitted evidence sufficient to raise a question of fact that the officers found alcohol in 7 out of the 100 cells searched but only plaintiff was written up for it.
Plaintiff submitted the declaration of inmate Everett in support of his motion for summary judgment and in opposition to defendants' motion for summary judgment. Defendants objected in their opposition to consideration of inmate Everett's declaration for lack of foundation. However, inmate Everett was an eyewitness to the cell searches. Defendants failed to elaborate the basis for their foundational objection. Given inmate Everett's status as an eyewitness and absent any elaboration by defendants for their foundational objection, defendants have not demonstrated that the Magistrate Judge erred by considering plaintiff's evidence. Furthermore, even if defendants are correct that inmate Everett's declaration is inadmissible, defendants would not be entitled to summary judgment. It is the dispute over whether there was alcohol in plaintiff's cell and whether he was disciplined accordingly or whether the alcohol was planted so that plaintiff could be disciplined in retaliation for the exercise of First Amendment rights that precludes summary judgment for defendants on this claim. Whether or not alcohol was found in other cells and those inmates not disciplined are not dispositive of this claim.
Defendants further object to the recommendation on the ground that the Magistrate Judge erred in denying summary judgment for defendant Quinn-Robicheaux based on the Magistrate Judge's review of 15 Cal. Code Regs. § 3173.1. In the recommendation, the Magistrate Judge stated:
Further, defendants contend that section 3173.1 gives them discretion to preclude plaintiff for all visitation with minors and represent that section 3173.1 states, `"Inmates may be prohibited from having contact or non-contact visits [with minors] where substantial evidence [e.g., . . . probation officer reports . . .) of misconduct described in section 3177(b)(1) exists, with or without criminal conviction . . . The court has reviewed section 3173.1 in its entirety and can find no section in the regulation that states what defendants assert it states, and defendants have advanced no argument that the regulation's language was different in 2003, when the incident occurred.
In their objections, defendants note that Section 3173.1 was amended on December 5, 2005. Under the version of Section 3173.1 in effect after December 5, 2005, the Magistrate Judge's recommendation is a correct statement of the law. However, defendants contend, the version of Section 3173.1 in effect at the time the alleged incident occurred and when the defendants filed their motion for summary judgment, supports summary judgment for defendant Quinn-Robicheaux.
The court concurs with defendants that Section 3173.1, as in effect at the time of the alleged incident, compels summary judgment for defendant Quinn-Robicheaux. With the benefit of the regulatory language in effect at the relevant time, it is now clear that defendant Quinn-Robicheaux had the discretion to prohibit plaintiff from all visitations with minors. Plaintiff was convicted of two counts of child endangerment, and his probation report indicated that plaintiff committed violent crimes in the presence of his children and placed his children in danger by keeping loaded weapons and high explosives in his house (FR, Undisputed Facts 15 16, pp. 16-17). Thus, pursuant to the applicable regulations, there existed information upon which to base a discretionary decision to preclude plaintiff from visitation. Courts must "`afford appropriate deference and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory." Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (quoting Sandlin v. Conner, 515 U.S. 472, 482 (1995)). The burden is on the inmate to demonstrate "that there were no legitimate correctional purposes motivating the actions he complains of." Pratt, 65 F.3d at 808. Plaintiff's assertion that defendant Quinn-Robicheaux abused her discretion and his disagreement with some of the information in the probation report are insufficient to defeat defendants' motion for summary judgment on this claim. Given the regulation in effect at the time and the existence of the probation report, plaintiff has not met his burden of demonstrating that defendant Quinn-Robicheaux's action was not motivated by any legitimate correctional purpose. Accordingly, defendant Quinn-Robicheaux is entitled to summary adjudication on this claim.
The court notes that the confusion caused by the revision to the regulation could have been avoided had defendants provided a copy of the applicable regulatory language to the Magistrate Judge or notified the Magistrate Judge of the revision while the motions for summary judgment were under submission.
ACCORDINGLY:
1. Plaintiff's motion for summary judgment is denied.
2. Defendants' motion for summary judgment is granted in part and denied in part as follows:
a. Defendants' motion for summary adjudication on plaintiff's retaliation claim against defendants Aguirre and Rodriguez is denied;
b. Defendants' motion for summary adjudication on plaintiff's retaliation claim against defendants Vargas and Quinn-Robicheaux based on the July 9, 2003 visitation restrictions is granted;
c. Defendants' motion for summary adjudication on plaintiff's retaliation claim against defendant Quinn-Robicheaux based on the October 22, 2003 visitation restrictions is granted;
d. Defendants' motion for summary adjudication on plaintiff's retaliation claims against defendants Aguirre and Rodriguez on the ground of qualified immunity is denied;
e. Defendants are granted leave to file a supplemental motion for summary judgment based on the application of Edwards v. Balisok; and
f. The action is remanded to the Magistrate Judge to be set for further proceedings.
IT IS SO ORDERED.