(PC) Bowell v. Montoya

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 JAMES BOWELL, 1:17-cv-00605-NONE-GSA-PC

12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 vs. MOTION FOR SUMMARY JUDGMENT BE DENIED 14 F. MONTOYA, et al., (ECF No. 81.)

15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 F OURTEEN (14) DAYS

17 18 I. BACKGROUND 19 James Bowell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 21 First Amended Complaint, filed on May 3, 2018, against defendants Montoya and Carter for 22 violation of due process under the Fourteenth Amendment, and against defendants Killmer and 23 Lopez for conspiracy to place Plaintiff at risk of serious harm and failure to protect Plaintiff under 24 the Eighth Amendment. (ECF No. 16.)1 25 On August 24, 2020, Plaintiff filed a motion for summary judgment. (ECF No. 81.) On 26 September 14, 2020, defendants Carter, Killmer, Montoya, and Lopez (“Defendants”) filed an 27 28 1 On October 25, 2018, the court issued an order dismissing all other claims and defendants from this case, for Plaintiff’s failure to state a claim. (ECF No. 20.) 1 opposition to Plaintiff’s motion. (ECF No. 83.) On September 21, 2020, Plaintiff filed a reply 2 to the opposition. (ECF No. 84.) Plaintiff’s motion for summary judgment is deemed submitted. 3 Local Rule 230(l). 4 II. PLAINTIFF’S ALLEGATIONS AND CLAIMS 5 A. Allegations 6 Plaintiff’s factual allegations in the operative First Amended Complaint follow.2 7 Plaintiff has been incarcerated since July 31, 1991. In Plaintiff’s CDCR-SOMS 8 Classification Chrono dated November 19, 2015, defendants Montoya and Carter incorporated 9 fraudulent charges from Plaintiff’s police criminal rap sheet, reflecting Plaintiff’s arrest on April 10 4, 1987, for Willful Child Cruelty. Plaintiff was labeled a sex offender or child molester with an 11 institutional “R” suffix placed onto the Chrono. Plaintiff alleges that the fraudulent information 12 had nothing to do with his prison commitment offense, “one count of /failure to register/ PC 290 13 25 years to life sentence based upon PC 220 assault.” ECF No. 16 at 3 ¶IV. Defendants Lopez 14 and Killmer, intent on exercising their power and view created by defendant Montoya and 15 defined via defendant Carter, interpreted an element having nothing to do with Plaintiff’s primary 16 offense. C/O Killmer told inmates that Plaintiff was incarcerated for rape after reviewing the 17 prison computer system institutional SOMS Chrono that showed an arrest for rape with no 18 disposition listed. 19 C/O Lopez gave inmate Sean Shupp the November 19, 2015, Chrono reflecting Plaintiff’s 20 life sentence, sex offender label with no visits with minors, and “R” suffix. Plaintiff believes 21 that defendants Killmer and Lopez intended to have Plaintiff murdered. On December 14, 2015, 22 Plaintiff was assaulted by two inmates, Solman and Barger, on the CCI Facility A-yard. Plaintiff 23 was attacked from behind and hit the ground knocked out cold. Plaintiff suffered a head injury, 24 loss of hearing in his right ear, knee injury, and injury to his right eye causing him to see spots 25

26 2 Plaintiff’s First Amended Complaint is verified and his allegations constitute evidence where 27 they are based on his personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004). The summarization of Plaintiff’s claims in this section should not be viewed by the parties as a 28 ruling that the allegations are admissible. The court will address, to the extent necessary, the admissibility of Plaintiff’s evidence in the sections which follow. 1 and lines. Plaintiff alleges that he was attacked because of the November 19, 2015 Chrono and 2 rape allegation that was ultimately dismissed in the interest of justice. 3 Later, Sgt. Doser and Lt. Hart set Plaintiff up to be assaulted again by placing inmates 4 Solman and Barger back onto the same yard facility. The inmates should have been placed in 5 administrative segregation and charged with battery on a prisoner. Sgt. Doser attempted to diffuse 6 the original paperwork which described a crime of violence. The sole purpose of Defendants’ 7 actions was to harm Plaintiff. Sgt. Doser and Lt. Hart made a false entry on the record with the 8 intent to murder Plaintiff, so they could silence his litigation. 9 Plaintiff seeks monetary damages. 10 B. Claims 11 On October 25, 2018, the court found that Plaintiff states cognizable claims in the First 12 Amended Complaint against defendants Montoya and Carter for violation of due process under 13 the Fourteenth Amendment, and against defendants Killmer and Lopez for conspiracy to place 14 Plaintiff at risk of serious harm, and failure to protect Plaintiff under the Eighth Amendment. 15 1. Due Process – Fourteenth Amendment Claim 16 The Due Process Clause protects prisoners from being deprived of liberty without due 17 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action 18 for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty 19 interest for which the protection is sought. Liberty interests may arise from the Due Process 20 Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). 21 The Due Process Clause itself does not confer on inmates a liberty interest in a particular 22 classification status. See Moody v. Daggett, 429 U.S. 78, 88, n.9 (1976). The existence of a 23 liberty interest created by state law is determined by focusing on the nature of the deprivation. 24 Sandin v. Conner, 515 U.S. 472, 481-84 (1995). Liberty interests created by state law are 25 generally limited to freedom from restraint which “imposes atypical and significant hardship on 26 the inmate in relation to the ordinary incidents of prison life.” Id. at 484. The assignment of an 27 “R” suffix and the resulting increase in custody status and loss of privileges, without more, 28 simply do not “impose[] atypical and significant hardship on the inmate in relation to the ordinary 1 incidents of prison life.” Id.; Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997); Cooper v. 2 Garcia, 55 F.Supp.2d 1090, 1101 (S.D. Cal. 1999); Johnson v. Gomez, No. C95-20717 RMW, 3 1996 WL 107275, at *2-5 (N.D. Cal. 1996); Brooks v. McGrath, No. C 95- 3390 SI, 1995 WL 4 733675, at *1-2 (N.D. Cal. 1995). However, under certain circumstances, labeling a prisoner 5 with a particular classification may implicate a liberty interest subject to the protections of due 6 process. Neal, 131 F.3d at 827 (“[T]he stigmatizing consequences of the attachment of the ‘sex 7 offender’ label coupled with the subjection of the targeted inmate to a mandatory treatment 8 program whose successful completion is a precondition for parole eligibility create the kind of 9 deprivations of liberty that require procedural protections.”) 10 To state a potentially colorable due process claim based on the allegedly improper 11 classification as a sex offender, plaintiff must allege that the classification error caused him to be 12 subjected to “atypical and significant hardship . . . in relation to the ordinary incidents of prison 13 life.” Sandin, 515 U.S. at 484. 14 If a prisoner has a liberty interest in avoiding a sex offender label, he is constitutionally 15 entitled to all of the process due under the standards set forth in Wolff, 418 U.S. at 539 (1974). 16 See Sandin, 515 U.S. at 482 (“The time has come to return to the due process principles we 17 believe were correctly established and applied in Wolff and Meachum3”). See also Keenan v. 18 Hall, 83 F.3d 1083 (9th Cir. 1996) (embracing this proposition in the context of a prisoner’s suit 19 to participate in a hearing to determine his re-classification). “Due process requires that the 20 inmate be notified of the reasons for his classification as a sex offender without the inmate’s 21 having to request that information.” Neal, 131 F.3d at 832. “An inmate whom the prison intends 22 to classify as a sex offender is also entitled to a hearing at which he must be allowed to call 23 witnesses and present documentary evidence in his defense.” Id. at 831. 24 2. Failure to Protect – Eighth Amendment Claim 25 The Eighth Amendment protects prisoners from inhumane methods of punishment and 26 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 27

28 3 Meachum v. Fano, 427 U.S. 215 (1976). 1 2006). Although prison conditions may be restrictive and harsh, prison officials must provide 2 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. 3 Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted). Prison 4 officials have a duty to take reasonable steps to protect inmates from physical abuse. Id. at 833; 5 Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect 6 inmates from attacks by other inmates may rise to the level of an Eighth Amendment violation 7 where prison officials know of and disregard a substantial risk of serious harm to the plaintiff. 8 E.g., Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040. To establish a violation of this duty, 9 the prisoner must establish that prison officials were “deliberately indifferent to a serious threat 10 to the inmate’s safety.” Farmer, 511 U.S. at 834. The question under the Eighth Amendment is 11 whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently 12 “substantial risk of serious harm” to his or her future health. Id. at 843 (citing Helling v. 13 McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has explained that “deliberate 14 indifference entails something more than mere negligence . . . [but] something less than acts or 15 omissions for the very purpose of causing harm or with the knowledge that harm will result.” 16 Farmer, 511 U.S. at 835. The Court defined this “deliberate indifference” standard as equal to 17 “recklessness,” in which “a person disregards a risk of harm of which he is aware.” Id. at 836- 18 37. The deliberate indifference standard involves both an objective and a subjective prong. First, 19 the alleged deprivation must be, in objective terms, “sufficiently serious.” Id. at 834. Second, 20 subjectively, the prison official must “know of and disregard an excessive risk to inmate health 21 or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). To 22 prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in fact, 23 the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 24 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). 25 III. SUMMARY JUDGMENT STANDARD 26 Any party may move for summary judgment, and the court shall grant summary judgment 27 if the movant shows that there is no genuine dispute as to any material fact and the movant is 28 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); 1 Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). The dispute must be over a 2 fact that is material, i.e., one that makes a difference in the outcome of the case. Anderson v. 3 Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986) (“Only disputes over facts that 4 might affect the outcome of the suit under the governing law will properly preclude the entry of 5 summary judgment.”). Whether a factual dispute is material is determined by the substantive law 6 applicable for the claim in question. Id. Each party’s position, whether it be that a fact is 7 disputed or undisputed, must be supported by (1) citing to particular parts of materials in the 8 record, including but not limited to depositions, documents, declarations, or discovery; or (2) 9 showing that the materials cited do not establish the presence or absence of a genuine dispute or 10 that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 11 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not 12 cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San 13 Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo 14 Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 15 Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must 16 affirmatively demonstrate that no reasonable trier of fact could find other than for him. 17 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). The court must liberally 18 construe pro se pleadings.4 19 Defendants do not bear the burden of proof at trial and in moving for summary judgment, 20 they need only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. 21 Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) citing Celotex Corp. v. Catrett, 477 U.S. 22 317, 323, 106 S.Ct. 2548 (1986)). 23 /// 24

25 4 In light of the Ninth Circuit’s directive that a document filed pro se is “to be liberally 26 construed,” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, and Rule 8(e) of the Federal Rules of Civil Procedure that “[p]leadings shall be construed so as to do justice,” see Erickson v. Pardus, 551 U.S. 89, 94, 127 S. 27 Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007), the court shall strive to resolve this motion for summary judgment on the merits. 28 1 In judging the evidence at the summary judgment stage, the court may not make 2 credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 3 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all 4 inferences in the light most favorable to the nonmoving party and determine whether a genuine 5 issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. 6 City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted). 7 Inferences, however, are not drawn out of “thin air,” and the proponent must adduce evidence of 8 a factual predicate from which to draw inferences. American Int’l Group, Inc. v. American Int’l 9 Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 10 322, 106 S.Ct. 2548). If reasonable minds could differ on material facts at issue, summary 11 judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). 12 The court determines only whether there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d 13 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted). 14 In arriving at these findings and recommendations, the court carefully reviewed and 15 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 16 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 17 reference to an argument, document, paper, or objection is not to be construed to the effect that 18 this court did not consider the argument, document, paper, or objection. This court thoroughly 19 reviewed and considered the evidence it deemed admissible, material, and appropriate. 20 IV. PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS 21 Plaintiff submitted the following statement of facts in support of his motion for summary 22 judgment. (ECF No. 81 at 1.) 23 1. The specific material facts interrogatory answers has established defendant Carter 24 as a liar employed since 1998 with CDCR with his motive and intent to harm Plaintiff by 25 incorporating 4/4/87 arrest Willful Cruelty Child W/Possible INJ Death onto CDCR SOMS 26 Classification Chrono 11/18/15 that adamantly had nothing to do with current incarceration. 27 However, on July 23, 2020 Defendant Carter states: Plaintiffs [sic] California Penal Code § 28 /// 1 273(A)(1) charge is related to the conviction for which Bowell is currently serving, in that 2 Plaintiff was charged with both crimes. (Signed affidavit via D. Carter 7/23/20.) 3 2. The Staff Complaint Appeal/Grievance Log # CCI-0-15-00317 Second Level 4 Response April 14, 2016 against defendants Carter, Montoya, Lopez, and Killmer located in the 5 1st Amended Complaint on pages 13-14, Filed 5/3/18 in this court is not reflected in the CDCR 6 Tracking System as a staff complaint submitted by Byron M. Miller, Deputy Attorney General 7 July 17, 2020 attaching 7/7/20 CDCR Record showing no staff complaints against any of the 8 defendants ever, how can that be? (Theft of appeal/grievances to prevent due process is exactly 9 why I had to force their reply via Superior Court and the Court of Appeal making third level 10 response and exhaust administrative remedies.) Proof of theft and reason why, defendants are 11 guilty of attempted murder, with injuries to me that cannot be overlooked for a mere $6,000 12 insulting my intelligence as a human being prisoner confined unlawfully at this very minute 13 should be released from custody. 14 IV. PLAINTIFF’S MOTION 15 Plaintiff’s evidence includes his First Amended Complaint (ECF No. 16.); Defendant 16 Carter’s responses to Plaintiff’s Interrogatories Nos. 3, 4, 5, and 6 (ECF No. 82 at 3-5.); 7/7/20 17 CDCR Record of Staff Complaints against defendants Carter, Montoya, Lopez, and Kilmer (ECF 18 No. 82 at 6-9.); Defendants’ response to Plaintiff’s Request for Production No. 4 (ECF No. 82 at 19 10.); Defendant Carter’s Affidavit signed 7/23/20 (ECF No. 82 at 5.); Staff Complaint Log #CCI- 20 0-15-00317 Second Level Response April 4, 2016 (ECF No. 16 at 13-14.); and Affidavit by 21 witness Jon Hoefling CDC #P-70104 signed 3/14/16 (ECF No. 16 at 18.). 22 The following is a summary of Plaintiff’s arguments as found by the court.5 23 Plaintiff argues that defendant Carter is a liar employed since 1998 with CDCR with a 24 motive and intent to harm Plaintiff by incorporating Plaintiff’s 4/4/87 arrest record, which had 25 nothing to do with Plaintiff’s current incarceration, onto a CDCR SOMS Classification Chrono 26 /// 27 28 5 The court found it difficult to decipher Plaintiff’s arguments in his motion for summary judgment. 1 dated 11/18/15. As evidence Plaintiff submits defendant Carter’s response to Interrogatory No. 2 4 in which defendant Carter answers: 3 “Defendant is informed and believes that Plaintiff’s California Penal Code 4 273(A)(1) charge is related to the conviction for which Plaintiff is currently 5 incarcerated, in that Plaintiff was charged with both crimes.” 6 (ECF No. 82 at 3:19-21.) 7 Plaintiff argues that his Staff Complaint Log # CCI-0-15-00317 against defendants 8 Carter, Montoya, Lopez, and Killmer was stolen to prevent due process, because the Staff 9 Complaint is not reflected on CDCR’s Record of Staff Complaints for these defendants. As 10 evidence, Plaintiff submits a copy of the Second Level response to Plaintiff’s Staff Complaint 11 Log # CCI-0-15-00317 (ECF No. 16 at 13-14); and copies of four CDCR Records of Staff 12 Complaints for defendants Carter, Montoya, Lopez, and Kilmer (ECF No. 82 at 6-9). 13 Plaintiff argues that Defendants’ criminal activity is shown by the differences between 14 defendant Carter’s version and the actual Abstract of Judgment in cases PA003248/7-331-91 and 15 BA191442/9-1-00, the differences being felony and misdemeanor. 16 Plaintiff alleges that he has been subject to retaliation for over 21 years due to prison 17 officials review of fraudulent data on CDCR’s SOMS. 18 Plaintiff proposes $125,000 to settle this case. 19 Plaintiff argues for investigation of CCI’s staff complaint system to examine officers’ lies 20 and damaging falsehoods contained in their declarations. 21 Plaintiff argues that Defendants delivered mail -- the 11/18/15 Classification SOMS -- 22 to inmate Shupp via C/O S. Lopez. Plaintiff submits as evidence the affidavit of witness Jon 23 Hoefling, CDC #P-70104. (ECF No. 16 at 8.) 24 Plaintiff responds to $6,000 settlement offer by defense counsel and states that the 25 agreement is for $125,000. Plaintiff argues that Defendants should face perjury charges for 26 untrue references to SOMS instrument with intent to escape possible jury award of $2.6 million. 27 /// 28 /// 1 V. DEFENDANTS’ OPPOSITION 2 Defendants argue that Plaintiff’s motion for summary judgment should be denied as 3 procedurally and substantively deficient because it does not contain a statement of undisputed 4 facts discretely enumerating the facts relied upon, set forth any legal authority establishing the 5 elements of his claims, or submit any evidence sufficient to meet that burden. Defendants argue 6 that Plaintiff’s arguments have no relevance to his due process and failure-to-protect claims 7 against Defendants. Defendants contend that Plaintiff’s limited evidence offers no support to his 8 claims against Defendants, let alone every element of those claims. 9 Defendants set forth a description of the deficiencies identified in Plaintiff’s motion. 10 They argue that Plaintiff’s “Statement of Disputed Facts” does not comply with the court’s rules 11 requiring Plaintiff to “discretely” enumerate each of his material facts and cite the evidence 12 supporting each fact. They also argue that Plaintiff makes only generalized arguments in support 13 of his contention that he is entitled to $125,000 from Defendants and uses evidence and 14 conclusory statements that lend no support to Plaintiff’s due process and failure-to-protect 15 claims. Defendants assert that Inmate Jon Hoefling’s declaration, which is attached to Plaintiff’s 16 amended complaint, does not explain how he knows that Officer Lopez gave Plaintiff’s 17 classification chrono to inmate Shupp, or that Officer Kilmer told unidentified inmates that 18 Plaintiff was “in for rape.” The declaration lends no support to Plaintiff because Hoefling does 19 not state that he personally observed the actions he alleges. Defendants argue that even if the 20 declaration was based on personal knowledge, Defendants’ interrogatory responses create a 21 triable issue of fact as to Hoefing’s contentions. (Defendant Miller verifies that Lopez “did not 22 deliver or otherwise provide the Classification Committee Chrono . . . to inmate S. Shupp, and 23 verifies that Killmer “never told an inmate that Plaintiff is incarcerated for rape or child 24 molestation” (See Miller Declaration, ECF No. 83-1 ¶ 2, Exhs. A, B.)) 25 Plaintiff responds that an examination of Plaintiff’s medical reports will expose the 26 mistruths depicting the events explained by defense counsel Mr. Miller. Claiming that he has no 27 way to perform research because he is locked up for almost 24 hours per day, Plaintiff states that 28 he finds it difficult to litigate his claim of attempted murder conspiracy by CDCR staff’s abuse 1 of power. Plaintiff contends that he can use evidence found in his complaints filed in other cases 2 to support his allegations against defendant Killmer. 3 VI. DISCUSSION 4 Plaintiff fails to make arguments or present evidence in his motion for summary judgment 5 supporting the elements to be proven in his due process and failure-to protect claims against 6 Defendants. The court finds that Plaintiff has not proven his case, nor could a reasonable trier of 7 fact decide in Plaintiff’s favor, and shall recommend that Plaintiff’s motion for summary 8 judgment be denied. 9 VII. RECOMMENDATIONS AND CONCLUSION 10 Based on the foregoing, THE COURT HEREBY RECOMMENDS that: 11 1. Plaintiff’s motion for summary judgment, filed on August 24, 2020, be denied; 12 and 13 2. This case be referred back to the Magistrate Judge for further proceedings. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 16 (14) days from the date of service of these findings and recommendations, any party may file 17 written objections with the court. Such a document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 19 and filed within seven (7) days of the date the objections are filed. The parties are advised that 20 failure to file objections within the specified time may waive the right to appeal the order of the 21 District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 IT IS SO ORDERED. 23

24 Dated: January 19, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25

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