Thomas v. Wilber

JASON LATRELL THOMAS, Plaintiff, v. M. WILBER, et al., Defendants.

Case No. 1:10-cv-00006-AWI-SKO PC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: March 12, 2014

ORDER GRANTING REQUEST FOR

JUDICIAL NOTICE (Doc. 64)

FINDINGS AND RECOMMENDATIONS

RECOMMENDING DEFENDANTS'

MOTION FOR SUMMARY JUDGMENT BE

GRANTED IN PART AND DENIED IN

PART (Doc. 62)

OBJECTION DEADLINE: TWENTY DAYS

RESPONSE DEADLINE: TEN DAYS

Findings and Recommendations on Defendants' Motion for Summary Judgment

I. Background

Plaintiff Jason Latrell Thomas ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 4, 2010. This action is proceeding on Plaintiff's verified complaint against Defendants Salinas, Jr., Maldonado, Wilber, Vikjord, Frescura, Price, Hernandez, and Castro ("Defendants") on Plaintiff's numerous First Amendment and Eighth Amendment claims.¹ Plaintiff's claims arise from a series of allegedly related events which occurred at California State Prison-Corcoran ("Corcoran") in 2006 and 2007. During the time of the events in question, Plaintiff was housed in the Security HousingUnit ("SHU") at Corcoran, and Defendants were employed by the California Department of Corrections and Rehabilitation ("CDCR") at Corcoran.

On May 20, 2013, Defendants filed a motion for summary judgment.² (Docs. 62-65, 67.) After obtaining a stay due to his hospitalization for mental health issues, Plaintiff filed an opposition on August 1, 2013; and after obtaining an extension of time, Defendants filed a reply and evidentiary objections on September 13, 2013. (Docs. 74, 75, 77, 79, 80.) Pursuant to the order issued concurrently with these findings and recommendations, Plaintiff's surreply, filed on October 4, 2013, and his supplemental evidence, filed on October 28, 2013, will be considered by the Court.³ (Docs. 82, 85.)

II. Summary Judgment Standard

Any party may move for summary judgment, and the Court shall grant summary judgment if the movant 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) (quotation marks omitted); Washington Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it 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); accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp.Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986)). If Defendants meet their initial burden, the burden then shifts to Plaintiff "to designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to "show more than the mere existence of a scintilla of evidence." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).

However, in judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S.Ct. 1566 (2012). The Court determines only whether there is a genuine issue for trial and in doing so, it must liberally construe Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

III. Evidentiary Objections and Request for Judicial Notice

A. Defendants' Objections⁴

As an initial matter, Plaintiff's complaint and his opposition are verified, and as a result, the Court is required to treat them as opposing declarations to the extent they are based on Plaintiff's personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004).

In support of his opposition, Plaintiff submits his declaration, the declarations of inmate witnesses, and various documents.⁵ Defendants object to some of the statements made in thedeclarations, Plaintiff's handwritten inmate appeals copies, and three medical records. Defendants' objections are sustained in part and overruled in part, as follows.

1. Objections 1 Through 3

Defendants' objections 1 through 3 to Plaintiff's declaration statements are overruled.

Plaintiff denies he committed the rules violation for which he was written up (covering his light) and he is therefore competent to testify that the Rules Violation Report ("RVR") authored by Defendant Vikjord was false. Fed. R. Evid. 701; Nevada Dept. of Corrections v. Greene, 648 F.3d 1014, 1019-20 (9th Cir. 2011), cert. denied, 132 S.Ct. 1823 (2012); Barthelemy v. Air Line Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (per curiam).

Plaintiff is also competent to testify that he complained to Defendants Maldonado and Salinas and they did nothing. Fed. R. Evid. 701. The latter part of the sentence may be speculative with respect to whether they ever did anything in response to his complaint, but the objection is overruled to the extent Plaintiff is attesting they did nothing at the time Plaintiff complained to them and/or they did nothing of which Plaintiff was aware. Greene, 648 F.3d at 1019-20.

Plaintiff is also competent to testify that Nurse Ramos documented the injuries he sustained to his head prior to throwing himself on the ground, as he was present during these events. Fed. R. Evid. 701.

2. Objection 4

Defendants' objection 4 is sustained. Nurse Ramos's statement is hearsay and more critically, it is unclear how Plaintiff is aware of what she told prison investigators.⁶ Fed. R. Evid. 701(a), 801(c), 802.

3. Objections 5, 7, 8, and 14

Defendants' objections to Plaintiff's inmate appeals dated November 17, 2006, February 28, 2007, March 14, 2007, and April 16, 2007, for lack of authentication are sustained. The Court views objections to official prison records for lack of authentication with disfavor, Fed. R. Evid. 901(b)(4); Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532-33 (9th Cir. 2011); Orr v. Bank ofAmerica, NT & SA, 285 F.3d 764, 778 n.24 (9th Cir. 2002), but these appeals were never accepted for review or assigned log numbers nor has Plaintiff made any other showing sufficient to authenticate the documents. Fed. R. Evid. 901(a).

4. Objection 6

Defendants' objection 6 to the returned mail marked "deceased," on authentication grounds, is overruled. Fed. R. Evid. 901(b)(4); Las Vegas Sands, LLC, 632 F.3d at 532-33; Orr, 285 F.3d at 778 n.24.

5. Objections 9 Through 13

Defendants' objections 9, 10, 11, 12, and 13 to statements made by inmate Eugene Martin in his declaration are sustained. The statements do not pertain to Plaintiff's legal claims and are therefore irrelevant, Fed. R. Evid. 401, and the statements may not be used as character evidence against Defendants, Fed. R. Evid. 404.

6. Objections 15 and 16

Defendants' objections 15 and 16 to statements made by inmate Gregory Curry in his declaration, made pursuant to Fed. R. Evid. 701 and 704, are overruled. Fed. R. Evid. 701(a), 704(a); Greene, 648 F.3d at 1019-20; Barthelemy, 897 F.2d at 1018.

7. Objections 17 Through 29

Defendants' objections 17 through 29 to statements made by inmates Barry Lamon and William Robinson in their declarations are sustained. The statements are not relevant to Plaintiff's claims and they constitute impermissible character evidence. Fed. R. Evid. 401; Fed. R. Evid. 404.

8. Objection 30

Finally, Defendants' objection 30 to the three medical reports completed by medical staff on authentication grounds is overruled. These documents are official prison records. Fed. R. Evid. 901(b)(4); Las Vegas Sands, LLC, 632 F.3d at 532-33; Orr, 285 F.3d at 778 n.24.

B. Judicial Notice

Defendants request that the Court take judicial notice of court records concerning case numbers 1:07-cv-00889-SMM (E.D. Cal.) Norwood v. Hubbard and 1:06-cv-01332-JLT (E.D.Cal.) Thomas v. Sheppard-Brooks.

"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). The Court may take judicial notice of court records, Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007); United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980), but "[f]actual findings in one case ordinarily are not admissible for their truth in another case through judicial notice," Wyatt v. Terhune, 315 F.3d 1108, 1114 n.5 (9th Cir. 2003).

Accordingly, Defendants' request for judicial notice is granted, subject to the parameters identified herein.

IV. Discussion

A. Background

The...