1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MAYITO GUZMAN, Case No. 19-cv-03757-HSG
8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR 9 v. SUMMARY JUDGMENT; ORDERING PLAINTIFF TO SHOW CAUSE 10 D. DORSEY, et al., Re: Dkt. No. 33 11 Defendants.
12 13 INTRODUCTION 14 Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against San 15 Quentin State Prison (“SQSP”) correctional officers Dorsey and Boerum regarding events at 16 SQSP, where he was previously housed. Now pending before the Court is Defendants’ motion for 17 summary judgment. Dkt. No. 33. Plaintiff has not filed an opposition, despite receiving an 18 extension of time to do so, and the deadline to file the opposition has since passed. For the 19 reasons set forth below, Defendants’ summary judgment motion is GRANTED IN PART AND 20 DENIED IN PART and Plaintiff is ordered to show cause why his case should not be dismissed 21 for failure to prosecute. 22 DISCUSSION 23 I. Factual Background 24 The following facts are undisputed unless otherwise noted. 25 In or about November 2011, during reception center processing, CDCR officials identified 26 Plaintiff as related to Norteño gang activity. Dkt. No. 33-4 at 7. Plaintiff admitted gang activity 27 but stated that he was an associate, not an active member. Dkt. No. 33-4 at 7. 1 Dkt No. 33-3 (“Boerum Decl.”), ¶ 3 and Exs. 1, 2. During that time period, defendant Dorsey was 2 a correctional lieutenant and served as an institutional gang investor for the Investigative Services 3 Unit (“ISU”), Dkt. No. 33-4 (“Dorsey Decl.”), ¶ 1; and defendant Boerum was a facility captain 4 for Facility A-North and Facility B and responsible for the classification of the inmates in his 5 facility, Boerum Decl., ¶¶ 1, 5. 6 Prior to 2018, inmates were housed either on a general population yard (“GP”) yard, 7 intended for inmates who did not require protective custody, or on a Sensitive Needs Yard 8 (“SNY”), intended for inmates who were concerned for their safety due to their status as a sex 9 offender, gang dropout, or informant. Prison officials would also identify inmates who are 10 members of known prison gangs by labelling them as part of, or affiliated with, a security threat 11 group (“STG”). 15 Cal. Code § 3000. STG inmates are housed on GP yards. 12 In 2017, the California Department of Corrections and Rehabilitation (“CDCR”) 13 announced that it would create Non-Designated Programming Facilities (“NDPFs”), where 14 inmates would be housed together regardless of their SNY or GP custody designation, so that 15 inmates would have greater access to self-help, educational, vocational, and rehabilitative 16 programs. See “Non‑Designated Programming Facility Frequently Asked Questions (FAQ)”, 17 available at https://www.cdcr.ca.gov/blog/non-designated-programming-facility-frequently-asked- 18 questions-faq/ (last visited May 5, 2022); see also Dorsey Decl., ¶ 3; Boerum Decl., ¶ 4. In late 19 2017, SQSP began the process of converting SQSP to a NDPF by integrating SNY inmates with 20 GP inmates. Dorsey Decl., ¶ 3; Boerum Decl., ¶ 4. Plaintiff alleges that the NDPF policy 21 implemented at SQSP was part of an effort to remove all Northern California Hispanic inmates, 22 including Plaintiff, from SQSP. 23 Since filing the complaint, Plaintiff has been released on parole. Dkt. Nos. 34, 35. 24 A. Prison Policy Regarding Housing Placement 25 Inmate housing placements are determined by a classification committee. Boerum Decl., ¶ 26 9. In determining housing placement, the classification committee considers an inmate’s 27 placement score; custody designation; program, work and privilege group; facility placement; and 1 classification committee also reviews the inmate’s case factors within the prison setting to confirm 2 the accuracy of these scores, designations, and placements. The classification committee meets 3 with the inmate and considers (1) all available information concerning the inmate, including prior 4 disciplinary action, incidents of in-cell violence, placement scores, and security level; and 5 (2) the inmate’s views on his program, housing status, and any other matters affecting the inmate 6 within the prison system. Boerum Decl., ¶ 9. Based on this information, the classification 7 committee determines the appropriate housing status for the inmate and whether the committee 8 recommends transfer to a different institution. Boerum Decl., ¶ 9. While classification 9 committees review the inmate’s case factors and make a determination regarding transfer or 10 housing status, inmate transfers require endorsement by, and are subject to, approval by a 11 classification staff representative (“CSR”). Boerum Decl., ¶ 10; see 15 Cal. Code Regs. 12 § 3379(a)(1). A CSR is a departmental employee designated to represent the CDCR Director in 13 the classification process during the review, approval, or deferral of actions by classification 14 committees. Boerum Decl., ¶ 10. When an inmate is transferred to a new institution, prison staff 15 at the receiving institution hold another classification committee to determine housing placement 16 and programming based on the procedures outlined above. Boerum Decl., ¶ 11. 17 B. January – March 2018 18 Prior to January 5, 2018, Facility B Dorms 2 through 5 housed GP inmates and Facility B 19 Dorm 1 housed SNY inmates who were also enrolled in the Enhanced Outpatient Level of Care in 20 the Mental Health Services Delivery System. Boerum Decl., ¶ 5. 21 On January 5, 2018, new inmates designated as having sensitive needs arrived at SQSP. 22 Boerum Decl., ¶ 6. During the first meal that day, an STG inmate assaulted an SNY inmate. 23 Boerum Decl., ¶ 6. In the following days, prison staff discovered weapons, notes, and written 24 plans between STG-affiliated inmates housed in Dorms 2 through 5 that detailed plans to assault 25 SNY inmates in Dorm 1. Boerum Decl., ¶ 6. There were also reports of threats and attacks on 26 Dorm 1 inmates, including an attempted murder of an SNY inmate by an STG inmate. Boerum 27 Decl., ¶ 6. In response to the attacks on Dorm 1 inmates and the discovery of weapons in Dorms 2 1 12, 2018. Boerum Decl., ¶ 7. During the time the modified program was in place, the SQSP ISU 2 conducted an investigation to determine which STG inmates were involved in the attacks on Dorm 3 1 inmates. Boerum Decl., ¶ 7. Once these STG inmates were identified, they were transferred to 4 CSP-Solano to ensure the safety and security of the SQSP inmate population. Boerum Decl., ¶ 8. 5 The transferred inmates were from different STGs and ethnic backgrounds and included both 6 white and Hispanic inmates. 7 Defendants allege that the transfers were a response to the conflict between STG GP 8 inmates and SNY inmates in January 2018, were intended to ensure the safety and security of the 9 SQSP inmate population, were not based on any consideration of race or ethnicity, and were based 10 on the transferred inmates’ affiliations with STGs and their CDCR placement scores. Boerum 11 Decl., ¶ 9. Plaintiff argues that these transfers were intended to remove all Northern California 12 Hispanic inmates, including Plaintiff, from SQSP. 13 C. February 8, 2018 Chrono and February 9, 2018 Classification Committee 14 Hearing 15 On November 29, 2017, Plaintiff appeared before the classification committee for his 16 yearly program/placement review. Dkt. No. 21 at 7. At this review, Plaintiff’s work performance 17 and overall rehabilitative efforts were reviewed. The committee elected to retain Plaintiff in SQSP 18 H-Unit Housing due to his case factors and because he had remained discipline free and had 19 received a work override on October 31, 2017. Dkt. No. 21 at 7. 20 On February 6, 2018, a correctional counselor requested a classification hearing for 21 Plaintiff. Dkt. No. 33-3 at 10. On February 8, 2018, defendant Dorsey issued the following 22 chrono:
23 On February 8, 2018, you, Inmate Guzman AI2346 were identified through Strategic Offenders Management System (SOMS) and Electronic Management Systems (ERMS) 24 file reviews, staff interactions, and observations, that you are disrupting Non-Designated Programming Facility housing at San Quentin State Prison. Specifically, you are in a 25 position of authority/influence in the inmate population to give orders for inmates in Non- Designated Program Facility, currently Facility B, H Unit Dorm 1, to be assaulted/battered. 26 Though you will not be receiving a Rules Violation Report, your presence in SQSP’s Mainline population is no longer appropriate. 27 1 was held, chaired by defendant Boerum, and the committee decided that Plaintiff should be 2 transferred to CSP – Solano. Dkt. No. 33-3 at 10-13; Boerum Decl., ¶ 13. Defendant Dorsey had 3 no involvement in the committee hearing. Dorsey Decl., ¶ 10. 4 Plaintiff makes the following allegations about the February 8, 2018 chrono and 5 subsequent classification committee hearing. Defendant Dorsey authored the CDCR Form 128-B 6 chrono as part of the plan to remove all Northern California Hispanic inmates, including Plaintiff, 7 from SQSP. The allegation that Plaintiff is in a position of authority to order the assault of other 8 inmates is false. Despite this chrono being clearly false and procedurally inadequate, defendant 9 Boerum relied on this chrono to approve Plaintiff’s transfer away from SQSP to a higher-level 10 prison where Plaintiff was unable to earn the same amount of good-time credits that he could earn 11 at SQSP. ECF Nos. 12, 13. When Plaintiff informed defendant Boerum that he had been recently 12 approved to be retained in H-Unit, defendant Boerum responded, “I see what you mean but the 13 decision has been made above me to get all of you out of here.” Dkt. No. 21 at 8. When Plaintiff 14 protested that something was obviously wrong “in that a chrono that was made up literally 24 15 hours earlier, with no supporting evidence, and no opportunity to challenge was now being used to 16 disrupt and deprive [him] of the opportunities that Plaintiff had earned and secured at SQSP,” 17 defendant Boerum responded, “It does not matter, you have been identified as the chrono says so 18 what ever you had going here is over. You can appeal it if you want but this is going to happen, 19 all you can do now is pick your next best option because you are not staying here.” Dkt. No. 21 at 20 8. 21 Defendants describe the February 8, 2018 chrono and subsequent classification committee 22 hearing as follows. The February 8, 2018 chrono was based on, and issued because of, the ISU 23 investigation initiated by the modified program instituted on January 18, 2018. In making the 24 transfer decision, the committee did not rely on the chrono. The chrono did not add points to 25 Plaintiff’s classification score. Dkt. No. 33-2 at 10. The classification committee reported that it 26 had noted the February 8, 2018 chrono but that the transfer was based on departmental need and 27 “increase in level.” The classification committee concluded that Plaintiff should be transferred out 1 transfer as a “non-adverse Involuntary Transfer.” Dkt. No. 33-3 at 11. Dkt. No. 33-3 at 11-12. 2 Plaintiff informed the classification committee that he disagreed with being referred to as 3 an influential “Norteño.” Dkt. No. 33-3 at 12. At the time, Plaintiff’s classification score was a 4 Level III. Dkt. No. 33-3 at 11. Plaintiff requested a “hardship” transfer to Deuel Vocational 5 Institute because his father has travel limitations. In the alternative, he requested a transfer to CSP 6 – Solano, because he sought to enroll in a college program and Patten College had informed him 7 that CSP-Solano was about to begin a college program. Dkt. No. 33-3 at 11-12. The classification 8 committee endorsed Plaintiff for a transfer to CSP-Solano, Level III, with Pleasant Valley State 9 Prison, Level III, as an alternate. Plaintiff’s work and privilege groups remained the same. Dkt. 10 No. 33-3 at 11. 11 Per prison regulations, the committee action was referred to classification staff 12 representative S. Lacy for auditor endorsement and approval. Dkt. No. 33-3 at 12-13; see 15 Cal. 13 Code Regs. § 3379(a)(1). On February 13, 2018, CSR Lacy endorsed the committee action to 14 transfer Plaintiff to CSP-Solano, stating that while Lacy had noted the February 8, 2018 chrono, 15 the decision to transfer was “based on Departmental need and increase in level.” Dkt. No. 33-3 at 16 12. 17 On or about February 14, 2018, the 128-B chrono was removed from Plaintiff’s central 18 file. Dkt. No. 33-6 at 12. Defendants contend that the chrono was removed from Plaintiff’s 19 central file because of the chrono’s perceived negative impact and because the chrono had no 20 impact on the transfer decision. Dorsey Decl., ¶ 9. 21 D. CDCR Administrative Grievance Process 22 During the relevant time period, the CDCR provided inmates with the administrative 23 grievance process set forth in the version of 15 Cal. Code §§ 3084-3086 in effect at that time.1 24
25 1 The regulations that set out the features of the administrative remedies process for California prisoners underwent a substantial restructuring in 2020. On March 25, 2020, and effective June 1, 26 2020, 15 Cal. Code Regs. §§ 3084–3084.9 were repealed and replaced with renumbered and amended provisions at sections 3480 through 3487. Because the relevant events took place in 27 2018-2019, the current administrative grievance process does not apply to Plaintiff’s claim. All 1 The CDCR provided its inmates “an administrative mechanism for review of departmental 2 policies, decisions, actions, conditions, or omissions that have a material adverse effect upon the 3 welfare of inmates . . .” 15 Cal. Code Regs. § 3084.1(a) (2018). The grievance process required a 4 prisoner to use a CDCR Form 602 “to describe the specific issue under appeal and the relief 5 requested” by stating all facts known and available regarding the issue, and by listing all staff 6 member(s) involved and describing their involvement in the issue. 15 Cal. Code Regs. § 7 3084.2(a) (2018). A grievance was reviewed at three different levels: (1) a first formal level filed 8 with one of the institution’s appeal coordinators, (2) a second formal level filed with the institution 9 head or designee, and (3) a third formal level filed with the CDCR director or designee. 15 Cal. 10 Code Regs. § 3084.7 (2018). Pursuing a grievance through the third and final level satisfied the 11 exhaustion requirement set forth in 42 U.S.C. § 1997e(a). 15 Cal. Code Regs. § 3084.1(b) (2018). 12 E. Grievance No. SQ-18-00591 13 Plaintiff identified Grievance No. SQ-18-00591 as the grievance raising the claims in this 14 action.2 Grievance No. SQ-18-00591, submitted on February 18, 2018, was titled “Ilegitamate 15 (sic) Committee Action Disrupting Positive Programming.” Grievance No. SQ-18-00591 made 16 the following allegations. On February 9, 2018, the classification committee relied on the 17 unsupported February 8, 2018 128-B chrono authored by defendant Dorsey to unjustly transfer 18 Plaintiff out of SQSP. As a result of this false chrono, Plaintiff has been removed from his work 19 assignment, has lost wages, has been removed from his college courses and self-help groups, and 20 has lost good time credits. The chrono is not supported by any evidence and is inconsistent with 21 Plaintiff’s above average performance at work and in his college courses. This chrono was used to 22 justify scheduling a non-regularly scheduled classification committee hearing. The fact that this 23 chrono was later removed from Plaintiff’s c-file demonstrates that it was part of an “underground” 24 effort to effect an involuntary transfer to another prison. Because the chrono is no longer valid, 25 2 Prison records indicate that between February 8, 2018, and the date this complaint was filed, 26 Plaintiff only filed two complaints that were exhausted (i.e., appealed to the third and final level): Grievance No. SQ-18-00591 and Grievance No. SOL-19-01941. Dkt. No. 33-6 at 1-4 (“Moseley 27 Decl.”), ¶ 9; Dkt. No. 33-6 at 6. Grievance No. SOL-19-01941 is not relevant to this action. 1 the transfer based on the chrono should be invalidated. Dkt. No. 33-5 at 10-13. Plaintiff requested 2 that prison officials immediately stop any transfer arising from the February 9, 2018 classification 3 committee hearing; that the prison abide by the recommendations from the last valid classification 4 committee hearing, which was on on November 22, 2018; that the prison allow him to continue 5 his current programing and maintain same custody status and designations, and job (Med B 6 Custody with WG/PG A1/A, job PFM.006.001, PIA HFM-GUS); place him back into his college 7 classes and programs; and restore his good time credits for all college and self-help courses that 8 were disrupted and negatively affected by the February 9, 2018 classification committee hearing. 9 Dkt. No. 33-5 at 10-13. 10 On March 21, 2018, Grievance No. SQ-18-00591 was denied at the first level on the 11 grounds that the transfer decision had been reviewed and approved by a CSR. Dkt. No. 33-5 at 12 15-16. The first level denial described the issue as follows: All documents of your [grievance] have been reviewed; the CDCR 602 Inmate/Parolee 13 [Grievance] form dated February 21, 2018. You alleged that a UCC was conducted with your presence and a transfer recommendation was recommended based upon you being 14 identified as an inmate that was disruptive to San Quentin State Prison non-designated programming facility. Specifically, you were noted as being in a position of 15 authority/influence in the population to give orders for inmates to be assaulted and battered. A review of your Electronic Record Management System (ERMS) produced an 16 informational 128-B dated November 11, 2011, authored by Correctional Counsel I (CCI), which documents your self-admission of gang activity, and indicated that you are an active 17 member of Security Threat Group (STG) Norteno. 18 Dkt. No. 33-5 at 16. The denial did not address the allegation that Plaintiff was in a position of 19 authority/influence in the population to give orders for inmates to be assaulted and battered. The 20 denial relied solely on the classification committee action being reviewed and approved by the 21 CSR. Dkt. No. 33-5 at 16. 22 On April 15, 2018, Plaintiff appealed the first level denial as follows: I am very dissatisfied with response – the specific issue expressed in my 602 was not at all 23 addressed. San Quentin “falsified” a document against myself (and a whole segment of inmate population) in order to unjustly remove me from program opportunities at San 24 Quentin, then took steps to “destroy evidence” by removing said document from files . . . and I further request that San Quentin, classification committee members and CSR rep’s 25 all be investigated for collusion in this illegal activity. (Penal Code 134 & 135). 26 Dkt. No. 33-6 at 11. When interviewed in conjunction with this appeal, Plaintiff told the 27 interviewer: “I feel like my transfer with the other inmates was a result of collusion by committee 1 asked to be transferred to Solano (SOL) because there’s a college program there.” Dkt. No. 33-6 2 at 16. 3 On July 3, 2018, Grievance No. SQ-18-00591 was denied at the second level on the 4 grounds that there was no evidence of wrongdoing by the committee or the independent auditor 5 (the CSR):
6 A review of your SOMS file revealed your attendance within the Unit Classification Committee (UCC) on February 9, 2018. Committee elects to refer you to the 7 Classification Services Representative (CSR) for a non-adverse transfer to SOL-II based on departmental Programming Needs. Committee cited you as a disruption to the non- 8 designated Programming Facility (PF). Specifically, you are in a position of authority and influence over other inmates to assault PF inmates. During Pre-committee interview, you 9 stated you want to go to DVI due to family needs. You also requested to be transfer (sic) to SOL due to college program. The reviewer notes no due process violation and effective 10 communication was establish prior to and during committee. The reviewer did not find evidence of wrong doing (sic) by committee. Your case was audit (sic) by an independent 11 CSR on February 16, 2018. 12 Dkt. No. 33-5 at 9. 13 On August 17, 2018, Plaintiff appealed the second level decision as follows: I am still very dissatisfied (see Section D. of first level response). Plus, on interview of 14 7.5.18 I actually said that 1. 3 months before committee action of 2.9.18 – I had already been to committee on 11.29.17, all my case factors had been reviewed and I was 15 determined authorized to continue program at San Quentin H-Unit (Dorm Housing) per Captain Arnold work override and was placed back in job assignment . . . the only thing 16 that changed since then was the application of the illegitamite (sic) 128B chronu by Lt. D. Dorsey dt. (sic) 2.8.18 that was fabricated specifically to use as the basis for an injust 17 involuntary transfer recommendation to CSR. [] Then, on same day that CSR approved the endorsement (2.14.18), “someone” removed Lt. D. Dorsey’s 128B chrono from all c-file 18 records. [] To this day this chrono is not in my Cfile yet I was transferred “per” said chrono – to be transferred by these type circumstances would take deliberate and coordinated 19 collusion by CCII, Lt., Cpt., A.W., Warden, CSR representatives and more – to transfer me without just cause. 20 Dkt. No. 33-6 at 12-13 (emphasis in original). 21 On November 19, 2018, Grievance No. SQ-18-00591 was denied at the third and final 22 level and made the following findings: 23 The Third Level of Review Examiner finds the SLR adequately addressed the appellant’s issues on appeal. The documentation and arguments are credible and demonstrate that the 24 appellant has not supported his allegations with sufficient facts or evidence to counter the institution staffs (sic) decision. The appellant did not provide any new or additional 25 information justifying a change to the SLR’s finding. The Examiner noted the attached UCC chrono dated February 9, 2019. The chrono clearly reveals that due to SQ 26 programming and mission changes, the appellant was being transferred as he met the criteria. The appellant was advised of the October 27, 2017, memorandum titled 27 “Conversion of San Quentin State Prison Facility B, H Unit, Dorm 1 from Level II, Quentin State Prison.” The appellant retained his Work Group / Privilege Group status and 1 he was endorsed for a non-adverse transfer. On March 31, 2018, the appellant was transferred to SOL III where he is currently housed. 2 Dkt. No. 33-6 at 8-9. 3 II. Operative Complaint 4 The second amended complaint makes the following relevant allegations. 5 In implementing the conversion to NDPFs, SQSP prison officials, including Defendants, 6 conspired to transfer out of SQSP Hispanic GP inmates who had any type of STG association, in 7 violation of Plaintiff’s rights under the Equal Protection Clause. As part of this conspiracy, 8 defendant Dorsey authored a false chrono and defendant Boerum relied on this chrono in 9 recommending that Plaintiff be transferred away from SQSP See generally Dkt. No. 21. 10 The second amended complaint makes the following specific allegations. 11 On February 8, 2018, defendant Dorsey authored a chrono falsely accusing Plaintiff of 12 being in a position of authority to order assaults on other inmates and a disruption to the SQSP 13 population. Dkt. No. 21 at 6-7. 14 On February 9, 2018, a classification committee, chaired by defendant Boerum, reviewed 15 Plaintiff’s placement. Despite being informed by Plaintiff that the February 8, 2018 chrono was 16 false, defendant Boerum relied on this chrono in deciding to transfer Plaintiff out of SQSP and 17 away from the job, college classes, and programming that Plaintiff had secured, as well as the 18 related ability to earn good time credits. Dkt. No. 21 at 7-9, 16-17. 19 On February 14, 2018, when Plaintiff asked his correctional counselor Sibley for a copy of 20 the chrono, he was told that the chrono was no longer in the system. When Plaintiff asked who 21 removed the chrono, Sibley said that the system did not record who removed the chrono, but that 22 only someone above the rank of correctional counselor could remove it. When Plaintiff asked 23 Sibley if he had ever seen a chrono applied to a person a day before committee and then removed 24 from the file once the transfer was endorsed by the CSR, Sibley responded, “No, that is highly 25 unusual, but you can appeal it.” Dkt. No. 21 at 9. 26 On February 18, 2018, Plaintiff spoke with correctional officer Martin and requested a 27 classification committee review. Officer Martin responded, “I see what you are saying but I am 1 not going to sugarcoat this. You are Hispanic and from Northern California right. Well it has 2 been decided to get every G.P. Hispanic with STG connection of any type out of here even if he is 3 paisa. The warden has signed off on N.D.P.F. and so in your case it doesn’t matter what you have 4 going, you are going to be fast tracked out of here.” Plaintiff questioned the legality of such 5 action, and Officer Martin responded, “It does not matter, we will have all of you out of here as 6 soon as we can, no 602 appeal is going to change anything. You can expect a vague B.S. response 7 and denial, plus guess what, at the highest level of appeal review it will be seen by the director of 8 CDCR in Sacramento, and from here to there, everyone is already aware and on board with this so 9 it doesn’t matter what you say on any appeal.” Dkt. No. 21 at 10-11. 10 The second amended complaint requested the following relief: a permanent injunction 11 removing the February 8, 2018 chrono from Plaintiff’s records; that the creation of NDPFs be 12 discontinued; that CCC Facility B and a commensurate number of fire camps, as well as Level 1 13 and Level 2 facilities, be reverted back to their previous GP housing status; that Plaintiff be 14 restored to the status and case factors he had on November 22, 2017, along with an override to 15 remain at CSP-Solano Level 3, A Facility, WG/PG A1A place in job, preliminary score of 40, and 16 expungement of all disciplinary violations after November 22, 2017; that Plaintiff be awarded the 17 good-time credits he would have been awarded for completing college classes if he had remained 18 enrolled since November 22, 2017, minus the credits he was able to earn at CSP-Solano; that 19 Plaintiff be awarded the milestone completion credit he would have incurred from PIA-HFM 20 training test; that Plaintiff be paid backpay for the PIA-HFM full time workhours that he would 21 have earned since November 22, 2017; that Plaintiff’s case factors be updated to reflect the 22 changes from made from November 22, 2017 to present; and that Plaintiff be recommended for 23 recall and resentence pursuant to Cal. Penal Code § 1170(d)(1). The second amended complaint 24 also sought general and punitive damages. Dkt. No. 21 at 24-25. 25 DISCUSSION 26 Defendants argue that they are entitled to summary judgment for two reasons. First, 27 Defendants argue that Plaintiff did not exhaust his administrative remedies because Grievance No. 1 and conspiracy claims. Second, Defendants argue that Plaintiff’s equal protection claim fails on 2 the merits because the evidence shows that neither the February 8, 2018 chrono nor the transfer 3 were motivated by Plaintiff’s race or by his membership in a protected class. Third, Defendants 4 argue that Plaintiff’s conspiracy claim fails on the merits because Plaintiff has failed to show the 5 existence of a meeting of the minds or that a constitutional violation occurred. In the alternative, 6 Defendants argue that they are entitled to qualified immunity. Fourth, Defendants argue that 7 Plaintiff’s request for injunctive relief is moot; and that the punitive damages request fails as a 8 matter of law because Plaintiff has failed to demonstrate either evil motive or intent or reckless 9 and callous indifference to federally protected rights. 10 I. Summary Judgment Standard 11 Summary judgment is proper where the pleadings, discovery and affidavits show that there 12 is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 13 law.” See Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case. 14 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is 15 genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving 16 party. See id. 17 A court shall grant summary judgment “against a party who fails to make a showing 18 sufficient to establish the existence of an element essential to that party’s case, and on which that 19 party will bear the burden of proof at trial [,] . . . since a complete failure of proof concerning an 20 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 21 See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial 22 burden of identifying those portions of the record that demonstrate the absence of a genuine issue 23 of material fact. Id. at 323. The burden then shifts to the nonmoving party to “go beyond the 24 pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and 25 admissions on file, ‘designate ‘specific facts showing that there is a genuine issue for trial.’” See 26 id. at 324 (citing Fed. R. Civ. P. 56(e)). 27 For purposes of summary judgment, the court must view the evidence in the light most 1 Reinsurance Co. v. Northrop Grumman Corp., 975 F.3d 840, 844 (9th Cir. 2020). If, as to any 2 given material fact, evidence produced by the moving party conflicts with evidence produced by 3 the nonmoving party, the Court must assume the truth of the evidence set forth by the nonmoving 4 party with respect to that material fact. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). 5 However, facts must be viewed in the light most favorable to the nonmoving party only if there is 6 a “genuine” dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). The court’s 7 function on a summary judgment motion is not to make credibility determinations or weigh 8 conflicting evidence. Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017). 9 II. Exhaustion 10 A. PLRA Exhaustion Requirement 11 The PLRA sets forth the following exhaustion requirement: “No action shall be brought 12 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 13 confined in any jail, prison, or other correctional facility until such administrative remedies as are 14 available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is 15 mandatory, Jones v. Bock, 549 U.S. 199, 211 (2007), and requires “proper exhaustion” of 16 available administrative remedies, Woodford v. Ngo, 548 U.S. 81, 93 (2006). Proper exhaustion 17 requires using all steps of an administrative process and “demands compliance with an agency’s 18 deadlines and other critical procedural rules because no adjudicative system can function 19 effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 20 548 at 90–91. Compliance with prison grievance procedures is all that is required by the PLRA to 21 “properly exhaust.” Jones, 549 U.S. at 217–18. 22 Where a prison’s grievance procedures do not specify the requisite level of factual 23 specificity required in the grievance, “‘a grievance suffices if it alerts the prison to the nature of 24 the wrong for which redress is sought.’” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) 25 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). The grievance need not include 26 legal terminology or legal theories unless they are needed to provide notice of the harm being 27 grieved. Id. Nor must a grievance include every fact necessary to prove each element of an 1 facilitate its resolution, not to lay groundwork for litigation. Id. The grievance should include 2 sufficient information “to allow prison officials to take appropriate responsive measures.” 3 Id. (citation and internal quotation omitted). Compare id. (no exhaustion where grievance 4 complaining of upper bunk assignment failed to allege, as complaint had, that nurse had ordered 5 lower bunk but officials disregarded that order) with Reyes v. Smith, 810 F.3d 654, 658-59 (9th 6 Cir. 2016) (plaintiff’s claim exhausted as to prison doctors named in federal action where 7 grievance plainly put prison officials on notice of nature of wrong alleged in federal action – 8 denial of pain medication by defendant doctors – and prison officials easily identified named 9 prison doctors’ involvement in the issue) and Wilkerson v. Wheeler, 772 F.3d 834, 840 (9th Cir. 10 2014) (claim properly exhausted where inmate described nature of wrong and identified defendant 11 as a responding officer who deliberately applied pressure to inmate’s ankle to inflict pain). 12 Administrative remedies may not be exhausted where the grievance, liberally construed, does not 13 have the same subject and same request for relief. See, e.g., Morton v. Hall, 599 F.3d 942, 946 14 (9th Cir. 2010) (grievance that complained of visitation restrictions, and did not mention assault or 15 theorize that visitation restriction imposed was related to assault, was insufficient to put prison 16 officials on notice that staff misconduct contributed to assault); O’Guinn v. Lovelock Correctional 17 Center, 502 F.3d 1056, 1062, 1063 (9th Cir. 2007) (even with liberal construction, grievance 18 requesting lower bunk due to poor balance resulting from previous brain injury was not equivalent 19 to, and therefore did not exhaust administrative remedies for, claims of denial of mental health 20 treatment in violation of ADA). 21 Failure to exhaust under the PLRA is an affirmative defense that the defendant must plead 22 and prove. Jones, 549 U.S. at 204, 216. The defendant’s burden is to prove that there was an 23 available administrative remedy and that the prisoner did not exhaust that available administrative 24 remedy. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014). The ultimate burden of proof 25 remains with the defendant. Id. at 1172. If undisputed evidence viewed in the light most 26 favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment 27 under Rule 56. Id. at 1166. But if material facts are disputed, summary judgment should be 1 proceeding. Id. 2 B. Analysis 3 Defendants argue that Grievance No. SQ-18-00591 failed to serve the primary purpose of 4 the administrative remedy process because it did not alert prison officials to Plaintiff’s equal 5 protection and conspiracy claims against Defendants. Defendants argue that Grievance No. SQ- 6 18-00591 “focuses solely on an allegedly ‘illegitimate’ committee action, the existence and 7 subsequent removal of the February 8, 2018 chrono, and the transfer’s effect on Plaintiff’s work 8 and education assignment,” but fails to adequately describe, or even reference, any discriminatory 9 motive by Plaintiff and does not mention Plaintiff’s race or protected class. Defendants argue that 10 Grievance No. SQ-18-00591 therefore failed to provide Defendants with notice, and the 11 opportunity to address, any discriminatory action. In addition, Defendants argue that the 12 conspiracy claim was not raised in the initial grievance but raised “improperly” for the first time at 13 the third level of review, and that raising an issue at later levels of review does not suffice to 14 exhaust administrative remedies for a claim. Dkt. No. 33 at 18-19. 15 The Court finds that Grievance No. SQ-18-00591 satisfied the PLRA’s exhaustion 16 requirement with respect to the equal protection and conspiracy claims raised in this action. The 17 Ninth Circuit has held that, because the primary purpose of a grievance is to alert the prison to a 18 problem and facilitate its resolution and not to lay groundwork for litigation, a grievance need not 19 include legal terminology or legal theories unless they are in some way needed to provide notice 20 of the harm being grieved. Griffin, 557 F.3d at 1120. Grievance No. SQ-18-00591 sufficiently 21 alerted prison officials that the February 8, 2018 chrono and related transfer away from SQSP 22 were problematic, even if Plaintiff could not identify, at that time, why Defendants had generated 23 a false chrono and used it to transfer him away from SQSP. The grievance sufficiently alerted 24 Defendants that there was an alleged problem with the chrono and transfer because it contended 25 that the chrono was false, that the chrono had been generated solely for the purpose of transferring 26 Plaintiff out of SQSP, and that the following circumstances rendered the chrono and transfer 27 unusual and suspicious: the chrono was not supported by any evidence, the chrono was 1 average, the chrono was removed immediately after the committee recommended the transfer, 2 Plaintiff had recently had his usual annual classification committee hearing in November 2017; the 3 February 2018 classification hearing was not a regularly scheduled meeting; and Plaintiff had 4 done nothing between the November 2017 classification committee hearing and February 2018 5 that justified an adverse transfer. See Dkt. No. 33-6 at 10-12. 6 Moreover, prison regulations only require that the inmate state “all facts known and 7 available to him[] regarding the issue being appealed at the time of submitting the [grievance].” 8 15 Cal. Code Regs. § 3084.2(a)(4) (emphasis added). According to the operative complaint, 9 Plaintiff first learned of the discriminatory motive the day that he filed the complaint, when he 10 spoke to Officer Martin. Making all reasonable inferences in Plaintiff’s favor, the Court presumes 11 that Plaintiff did not know that an alleged staff-wide conspiracy to discriminate against Northern 12 California Hispanic inmates with STG connection motivated the transfer until after he filed the 13 grievance. Plaintiff therefore could not have alleged either discrimination or a conspiracy in the 14 grievance. Once Plaintiff knew of the alleged discrimination and conspiracy, he informed prison 15 officials by making these allegations in his April 15, 2018 appeal of the first level decision. 16 Based on the above, the Court finds that, viewing the record in the light most favorable to 17 Plaintiff, Grievance No. SQ-18-00591 exhausted the equal protection and conspiracy claims raised 18 in this action. The Court therefore DENIES Defendants’ motion for summary judgment for failure 19 to exhaust administrative remedies, and turns to the merits of Plaintiff’s claims. 20 III. Equal Protection Claim 21 Defendants argue that Plaintiff cannot establish his equal protection claim against either 22 defendant because the undisputed evidence shows that neither the February 8, 2018 chrono nor the 23 February 9, 2018 transfer decision were based on Plaintiff’s race or his membership in a protected 24 class. Defendants allege that the February 8, 2018 chrono was the result of an investigation aimed 25 at identifying STG-affiliated inmates who were involved in the ongoing attacks on SNY inmates, 26 and that the February 9, 2018 transfer was based on Plaintiff’s increase in placement score and 27 departmental programming needs. Plaintiff has not responded to the summary judgment motion 1 issue of fact. Defendant Boerum stated in the classification committee hearing that a decision had 2 been made above him “to get all of you out of here.” Officer Martin stated that Plaintiff’s transfer 3 decision was the result of an unofficial prison-wide decision to transfer out of SQSP every general 4 population Hispanic inmate with an STG connection. Correctional counselor Sibley said that it 5 was highly unusual for a chrono to be applied to an inmate the day before a classification 6 committee and then removed from the file once the transfer was endorsed by the CSR. The 7 February 2018 classification committee hearing was not his regular annual classification review, 8 but specifically requested. 9 In order to present an equal protection claim, a prisoner must allege that his treatment is 10 invidiously dissimilar to the treatment of other inmates. More v. Farrier, 984 F.2d 269, 271-72 11 (8th Cir. 1993) (absent evidence of invidious discrimination, federal courts should defer to 12 judgment of prison officials). The first step in determining whether the inmate’s equal protection 13 rights were violated is to identify the relevant class of prisoners to which he belongs. Furnace v. 14 Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). “Prisoners are protected under the Equal 15 Protection Clause of the Fourteenth Amendment from invidious discrimination based on race.” 16 Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citation omitted). Invidious racial discrimination 17 such as racial segregation, which is unconstitutional outside prisons, also is unconstitutional 18 within prisons. See Johnson v. Calif., 543 U.S. 499, 505-06 (2005). A prison classification based 19 on race is immediately suspect and is subject to the same strict scrutiny as a racial classification 20 outside prison. See id. at 508-10. Prison officials must therefore demonstrate that the race-based 21 policy or action is narrowly tailored to serve a compelling state interest. Id. at 510-11 (remanding 22 case for determination of whether CDC’s policy of temporarily segregating inmates by race when 23 they initially arrive in prison system or are transferred to new prison is narrowly tailored to serve 24 compelling state interest). A claim of racial discrimination under the Equal Protection Clause 25 requires a showing of discriminatory intent. Washington v. Davis, 426 U.S. 229, 239-40 (1976). 26 In determining whether a discriminatory intent or purpose exists, the court “may consider direct 27 evidence of discrimination, statistical evidence showing a discriminatory impact, or other factors 1 Mendiola-Martinez v. Arpaio, 836 F.3d 1239,1261 (9th Cir. 2016). 2 Viewing the record in the light most favorable to Plaintiff, the Court finds that there is a 3 triable issue of material fact as to whether defendant Dorsey authored the February 8, 2018 chrono 4 and defendant Boerum transferred Plaintiff away from SQSP because Plaintiff is Hispanic. The 5 following undisputed facts and allegations create a triable issue of fact. The February 8, 2018 6 chrono provides no specific evidence to support its conclusion that Plaintiff was in a position of 7 authority to give orders for other inmates to be assaulted and Defendants have not provided the 8 Court with any evidence supporting the chrono’s conclusion. Plaintiff’s annual classification 9 committee hearing in November 2017, two months prior to the February 8, 2018 chrono, did not 10 note any such concerns, and instead came to the opposite conclusion: that Plaintiff could remain 11 housed at SQSP. The February 8, 2018 chrono was generated two days after the February 2018 12 classification committee hearing was requested and a day before the committee hearing, and 13 removed five days after the transfer decision was made. Correctional counselor Sibley stated that 14 it is unusual for a chrono to be generated a day before committee and removed after the committee 15 hearing. It is unclear why a chrono would be removed from an inmate’s central file simply 16 because of a negative impact. Defendant Boerum informed Plaintiff that a decision had been 17 made “above” defendant Boerum to get “all of you out of here.” Officer Martin informed Plaintiff 18 that a decision had been made to transfer every general population Hispanic inmate from Northern 19 California and with STG connections away from SQSP. In addition, although Defendants claim 20 that the transfer decision was based on an increase in Plaintiff’s classification level, the record 21 does not reflect an increase in classification level between the November 2017 classification 22 committee hearing where the committee found that Plaintiff was appropriately housed at SQSP H- 23 Unit and the February 2018 classification committee hearing. Also, although Defendants claim 24 that the transfer decision did not rely on the February 8, 2018 chrono, in responding to Grievance 25 No. SQ-18-00591, which challenged the transfer, prison officials referenced the February 8, 2018 26 chrono in both the first and second level denials. Although neither denial relied on the February 8, 27 2018 chrono in denying the grievance, a jury could reasonably conclude that the references to this 1 light most favorable to Plaintiff, there is a triable issue as to whether the February 8, 2018 chrono 2 and February 9, 2018 transfer decision were motivated by Plaintiff’s race. 3 IV. Conspiracy Claim 4 Defendants argue that Plaintiff cannot establish his conspiracy claim because he has not 5 introduced any evidence or specifically alleged facts to demonstrate a “meeting of the minds” to 6 support a viable conspiracy claim against Defendants and because he has not demonstrated that 7 Defendants engaged in a constitutional violation. 8 A civil conspiracy is a combination of two or more persons who, by some concerted 9 action, intend to accomplish some unlawful objective for the purpose of harming another which 10 results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999). To prove a 11 civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose or 12 common design and understanding, or a meeting of the minds in an unlawful agreement. Id. To 13 be liable, each participant in the conspiracy need not know the exact details of the plan, but each 14 participant must at least share the common objective of the conspiracy. Id. A defendant’s 15 knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and 16 from evidence of the defendant’s actions. Id. at 856-57. See Park v. Thompson, 851 F.3d 910 at 17 928-29 (9th Cir. 2017) (finding plaintiff adequately pleaded civil conspiracy where she alleged 18 that police detective colluded with Doe defendants to arrange for filing of criminal charges against 19 defense witness in effort to make the witness unavailable to testify). 20 Viewing the record in the light most favorable to Plaintiff, the Court finds that there is a 21 triable issue of fact as to whether there was a conspiracy among SQSP prison officials, including 22 Defendants, to transfer Hispanic inmates with STG connections away from SQSP. Defendant 23 Boerum referenced a directive or plan from “above” in responding to Plaintiff’s challenge to his 24 transfer, Dkt. No. 21 at 8, and Officer Martin stated that the plan was known from SQSP to “the 25 director of CDCR in Sacramento, Dkt. No. 21 at 10-11 (“everyone is already aware and on board 26 with this so it doesn’t matter what you say on any appeal.”). And, as discussed above, there is a 27 triable issue of fact as to whether the chrono and transfer decision violated the Equal Protection 1 V. Qualified Immunity 2 Qualified immunity is an entitlement, provided to government officials in the exercise of 3 their duties, not to stand trial or face the other burdens of litigation. Saucier v. Katz, 533 U.S. 194, 4 200 (2001). The doctrine of qualified immunity attempts to balance two important and sometimes 5 competing interests — “the need to hold public officials accountable when they exercise power 6 irresponsibly and the need to shield officials from harassment, distraction, and liability when they 7 perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal 8 quotation marks and citation omitted). The doctrine thus intends to take into account the real- 9 world demands on officials in order to allow them to act “‘swiftly and firmly’” in situations where 10 the rules governing their actions are often “‘voluminous, ambiguous, and contradictory.’” Mueller 11 v. Auker, 576 F.3d 979, 993 (9th Cir. 2009) (citing Davis v. Scherer, 468 U.S. 183, 196 (1984)). 12 “The purpose of this doctrine is to recognize that holding officials liable for reasonable 13 mistakes might unnecessarily paralyze their ability to make difficult decisions in challenging 14 situations, thus disrupting the effective performance of their public duties.” Mueller, 576 F.3d at 15 993. To determine whether an officer is entitled to qualified immunity, the Court must consider 16 whether (1) the officer’s conduct violated a constitutional right, and (2) that right was clearly 17 established at the time of the incident. Pearson, 555 U.S. at 232. Courts are not required to 18 address the two qualified immunity issues in any particular order, and instead may “exercise their 19 sound discretion in deciding which of the two prongs of the qualified immunity analysis should be 20 addressed first in light of the circumstances in the particular case at hand.” Id. at 236. 21 Defendants argue that they are entitled to qualified immunity because there was no 22 constitutional violation and because, at the time of the alleged misconduct, there was no clearly 23 established constitutional right to incarceration in a particular institution. 24 As discussed above, there is a triable issue of fact as to whether Defendants conspired to 25 violate Plaintiff’s rights under the Equal Protection Clause. Defendants’ qualified immunity 26 arguments rely on the Court accepting their version of the relevant events. However, at summary 27 judgment, the Court must view the record in the light most favorable to Plaintiff. In addition, the 1 the right not to be discriminated against on the basis of race absent a compelling state interest. At 2 the time of the alleged violation, it was clearly established that prisons may not discriminate 3 against inmates on the basis of race, including when making housing decisions, unless the policy 4 employing race-based classification was narrowly tailored to serve a compelling state interest. 5 Johnson, 543 U.S. at 508–09 (finding that racial classifications, including prison policy of housing 6 inmates only with inmates of same race, was subject to strict scrutiny and violated Equal 7 Protection Clause unless prison demonstrated that classification was narrowly tailored to serve 8 compelling state interest). Defendants therefore are not entitled to qualified immunity on the 9 record before the Court. 10 VI. Request for Injunctive Relief and Punitive Damages 11 Defendants argues that this case must be dismissed because Plaintiff’s requests for 12 injunctive relief are moot. Dkt. No. 33 at 22. Specifically, Defendants argue that Plaintiff’s 13 chrono was removed from his c-file in February 2018 and that Defendants do not have ability to 14 effect the remaining requests: reinstatement of his status and case factors as determined in the 15 November 2017 classification committee; retention in CSP-Solano; and the good-time credits, 16 wages, and college credit he would have received had the transfer not occurred. Dkt. No. 23 at 27. 17 The Court agrees that Plaintiff’s requests for injunctive relief are moot. Plaintiff has since been 18 released on parole. Accordingly, the Court GRANTS Defendants’ request to dismiss Plaintiff’s 19 requests for injunctive relief as moot. 20 However, the dismissal of Plaintiff’s requests for injunctive relief does not moot the entire 21 case, because relief remains available to Plaintiff. In addition to injunctive relief, Plaintiff also 22 seeks general and punitive damages. Dkt. No. 21 at 24-25. Defendants argue that Plaintiff’s 23 request for punitive damages should be dismissed because Plaintiff cannot show evil motive or 24 intent or reckless and callous inference to federally protected rights because he has not established 25 that Defendants engaged in unconstitutional discrimination. Dkt. No. 33 at 23-24. This argument 26 relies on the Court accepting Defendants’ version of the relevant events. Viewing the record in 27 the light most favorable to Plaintiff, there remains a triable issue as to whether Defendants 1 unconstitutional discrimination. The Court DENIES Defendants’ motion to dismiss the request 2 || for punitive damages. 3 In addition, Plaintiff may be entitled to nominal damages. See Schneider v. County of San 4 || Diego, 285 F.3d 784, 794 (9th Cir. 2002) (nominal damages must be awarded if plaintiff proves 5 violation of his constitutional rights) (finding that plaintiff was entitled to nominal damages on 6 procedural due process claim, as matter of law, “as a symbolic indication of his constitutional 7 || right’). Because potential relief remains available to Plaintiff, the Court declines to dismiss this 8 action as moot. 9 CONCLUSION 10 For the reasons set forth above, the Court orders as follows. 11 1. The Court GRANTS IN PART AND DENIES IN PART Defendants’ motion for 12 summary judgment. The Court GRANTS Defendants’ motion to dismiss Plaintiffs claims for 13 injunctive relief. The Court DENIES the remainder of Defendants’ motion for summary 14 || judgment. 15 2. Plaintiff has not communicated with the Court since October 10, 2021, and filed no a 16 || opposition to Defendants’ summary judgment motion. ECF No. 35. Within twenty-eight days of 3 17 the date of this order, Plaintiff is ordered to show cause why this action should not be dismissed 18 for failure to prosecute. In his response, Plaintiff should inform the Court whether he wishes to 19 || proceed with this action. Failure to respond in accordance with this order will result in this action 20 || being dismissed for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). 21 This order terminates Dkt. No. 33. 22 IT IS SO ORDERED. 23 || Dated: 6/22/2022 24 Abgepured 3 Shel HAYWOOD S. GILLIAM, JR. 25 United States District Judge 26 27 28