(PC) Coleman v. Virga

• Court: District Court, E.D. California
• Decided: January 11, 2021
• Docket: 2:17-cv-00851
• Status: Unknown

Opinion

Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 1 of 40

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

11 ROBERT COLEMAN, No. 2: 17-cv-0851 KJM KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 T. VIRGA, et al., 15 Defendants. 16

17 I. Introduction

18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

19 to 42 U.S.C. § 1983. Pending before the court is defendants’ summary judgment motion and

20 plaintiff’s cross-motion for summary judgment. (ECF Nos. 80, 84.) Also pending are several

21 other motions.

22 For the reasons stated herein, the undersigned recommends that defendants’ summary

23 judgment motion be granted and plaintiff’s cross-motion for summary judgment be stricken as

24 untimely.

25 II. Plaintiff’s Cross-Motion for Summary Judgment

26 Pursuant to the mailbox rule, on June 25, 2020, plaintiff filed an opposition to defendants’

27 summary judgment motion combined with a cross-motion for summary judgment. (ECF No. 84.)

28 //// 1 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 2 of 40

1 Defendants move to strike plaintiff’s cross-motion for summary judgment as untimely.

2 (ECF No. 85.) The deadline for filing dispositive motions was June 12, 2020. (ECF No. 76.)

3 Good cause appearing, plaintiff’s cross-motion for summary judgment is stricken as untimely.

4 However, the arguments and evidence submitted in support of plaintiff’s putative cross-motion

5 for summary judgment will be considered as part of plaintiff’s opposition to defendants’ summary

6 judgment motion.

7 III. Other Pending Motions

8 A. Defendants’ Motion to Strike Plaintiff’s Sur-Reply (ECF No. 90)

9 In the pending motion, defendants move to strike plaintiff’s pleading titled “reply in

10 support of plaintiff’s cross motion for summary judgment and opposition to defendants’ motion

11 for summary judgment,” filed July 20, 2020, pursuant to the mailbox rule. Defendants argue that

12 this pleading is an improper sur-reply. For the reasons stated herein, defendants’ motion to strike

13 is granted.

14 On June 9, 2020, defendants filed the pending summary judgment motion. (ECF No. 80.)

15 On June 25, 2020, plaintiff filed an opposition and cross-motion for summary judgment. (ECF

16 No. 84.) On July 7, 2020, defendants filed a reply to plaintiff’s opposition and a request to strike

17 plaintiff’s cross-motion as untimely. (ECF No. 85.) On June 20, 2020, plaintiff filed the at-issue

18 pleading. (ECF No. 88.)

19 As discussed above, plaintiff’s cross-motion for summary judgment should be denied as

20 untimely. In the pending motion, defendants move to strike plaintiff’s July 20, 2020 pleading as 21 an unauthorized sur-reply to defendants’ reply to plaintiff’s opposition.

22 Because plaintiff’s summary judgment motion should be stricken as untimely, the

23 undersigned finds that defendants have properly characterized plaintiff’s July 20, 2020 pleading

24 as a sur-reply. The Local Rules provide for a motion, an opposition, and a reply. Neither the

25 Local Rules nor the Federal Rules provide the right to file a sur-reply. A district court may allow

26 a sur-reply to be filed, but only “where a valid reason for such additional briefing exists, such as 27 where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136,

28 *1 (E.D. Cal. 2005) (quoting Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 2 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 3 of 40

1 (N.D. Ga. 2005).

2 The undersigned has considered the arguments raised in plaintiff’s points and authorities

3 filed in support of the sur-reply and finds that they do not change the outcome of this action. For

4 this reason, plaintiff’s points and authorities filed in support of the sur-reply are stricken.

5 Plaintiff also attached a declaration to his sur-reply addressing defendants’ argument that

6 he released his claims against defendant Haring when he settled a prior action. (ECF No. 88 at

7 15-16.) Good cause appearing, the undersigned considers plaintiff’s declaration in the section of

8 the findings and recommendations addressing whether plaintiff released his claims against

9 defendant Haring.

10 Accordingly, defendants’ motion to strike plaintiff’s sur-reply is granted except for

11 plaintiff’s attached declaration.

12 B. Plaintiff’s Motion for Sanctions, Motion for Appointment of Counsel and Motion for

13 Appointment of Expert (ECF No. 92)

14 Motions for Sanctions

15 In the motion for sanctions, plaintiff argues that defendants failed to comply with the May

16 21, 2020 order addressing plaintiff’s motion to compel. In the May 21, 2020 order, the

17 undersigned directed defendants to file a further response to plaintiff’s request for production no.

18 5, which requested the following documents:

19 All Housing Reports for the dates of: Sept. 22, 2011, Sept. 29, 2011, October 3, 2011, Feb. 7, 2013 and Jan. 29, 2011, which should 20 display the total occupied beds by housing units, the number of vacant beds in each housing unit and the inmate’s ethnicity. This is 21 for “Facility C.” 22 (ECF No. 78 at 16.)

23 In the motion to compel, plaintiff argued that the documents sought in request no. 5 were

24 relevant because they would show the names of the “personnel involved” in bed moves. (Id. at

25 17.)

26 In response to request no. 5, defendants provided plaintiff with Bed History Reports, 27 redacted, showing plaintiff’s information for the referenced dates. (Id.) Defendants also argued

28 that the information plaintiff sought, i.e., personnel involved, would not be shown in Bed History 3 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 4 of 40

1 Reports. (Id.) In the May 21, 2020 order, the undersigned ordered defendant to clarify whether

2 the personnel involved in bed moves would be shown in the Housing Reports requested by

3 plaintiff in request no. 5. (Id.) The undersigned also ordered defendants to clarify whether the

4 Housing Reports requested by plaintiff existed. (Id.)

5 In the pending motion for sanctions, plaintiff argues that after receiving defendants’

6 supplemental responses to request no. 5, he immediately noticed that some “pertinent documents

7 were intentionally suppressed.” (ECF No. 92 at 2.)

8 In particular, plaintiff alleges that defendants claimed that they produced documents with

9 Bates DEF number 001-002, but failed to do so. (Id. at 2.) Plaintiff also alleges that defendants

10 failed to provide him with GA-154 forms for February 7, 2013, and January 29, 2016. (Id. at 2-

11 3.)

12 In the motion for sanctions, plaintiff also alleges that defendants provided plaintiff with

13 Bed Vacancy Reports and Housing Worksheets, which he did not request. (Id. at 3.) Plaintiff

14 argues that defendants provided him with these documents because they knew that his request for

15 the Housing Roster would show the total occupied beds by housing unit, the number of vacant

16 beds in each housing unit and the inmate’s ethnicity. (Id. at 3.)

17 In the opposition to plaintiff’s motion for sanctions, defendants argue that they previously

18 produced DEF 001-002 to plaintiff with their original responses to his request for production of

19 documents. (ECF No. 95 at 2.) Defendants state that plaintiff attached copies of these documents

20 to his motion to compel. (Id.) Accordingly, the undersigned finds that defendants did not fail to 21 produce DEF 001-002 to plaintiff.

22 In the opposition, defendants object to plaintiff’s argument that they failed to produce

23 GA-154 Forms for February 7, 2013, and January 29, 2016, because GA-154 Forms were not

24 within the scope of the May 21, 2020 order, which only required a supplemental response to

25 request no. 5. (Id. at 3.)

26 However, in the opposition, defendants state that in response to the May 21, 2020 order, 27 defense counsel contacted the CSP-Sacramento Litigation Coordinator and asked him to search

28 for “all documents containing SAC inmate/bed/housing moves for 9/22/2011, 9/9/2011, 4 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 5 of 40

1 10/3/2011, 2/7/2013, and 1/29/2011 and/or reports or documents showing the personnel that

2 requested or were involved in the moves on those dates.” (ECF No. 95-1 at 10-11.)

3 The CSP-Sacramento Litigation Coordinator located approximately 600 pages of

4 documents (for all facilities), which consisted primarily of GA-154s for the 2011 dates and

5 documents that appeared to be printed from SOMS (Strategic Offender Management System) for

6 the 2013 date. (Id. at 11.) The remainder of the documents were bed vacancy reports and count

7 reports. (Id.) Defense counsel produced the documents to plaintiff that appeared to be related to

8 Facility C, which is the only Facility plaintiff’s request was concerned with.

9 Contrary to defendants’ argument, based on the CSP-Litigation Coordinator’s response to

10 defense counsel’s inquiry, it appears that GA-154 forms responded to request no. 5.

11 However, defendants provided plaintiff with a GA-154 form for February 7, 2013, in their

12 supplemental response, although it was listed as having been provided in a supplemental response

13 to request no. 1. (See ECF No. 95-1 at 5.) Request no. 5 did not seek documents for January 29,

14 2016, as alleged by plaintiff in the pending motion. For these reasons, plaintiff’s argument in his

15 motion for sanctions that defendants failed to provide him with GA-154 forms for February 7,

16 2013, and January 29, 2016, is deemed resolved.

17 As discussed above, in the motion for sanctions, plaintiff claims that in the supplemental

18 response to request no. 5, defendants provided him with Bed Vacancy Reports and Housing

19 Worksheets, because they knew that these documents would not show the total of occupied beds

20 by housing unit, the number of vacant beds in each housing unit and the inmate’s ethnicity. 21 However, in his motion to compel, plaintiff argued that the documents sought in request no. 5

22 were relevant because they showed the personnel involved in bed moves. Based on this

23 representation, defense counsel asked the CSP-Sacramento Litigation Coordinator to search for

24 “all documents containing SAC inmate/bed/housing moves for 9/22/2011, 9/9/2011, 10/3/2011,

25 2/7/2013, and 1/29/2011, and/or reports or documents showing the personnel that requested or

26 were involved in the moves on those dates.” 27 In essence, in the pending motion, plaintiff seeks to expand the scope of documents

28 sought in request no. 5 by arguing that he is seeking documents showing the total number of 5 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 6 of 40

1 occupied beds by housing unit, the number of vacant beds in each housing unit and the inmate’s

2 ethnicity. This is improper. The undersigned finds that defendants’ adequately responded to

3 request no. 5 in the supplemental response.

4 For the reasons discussed above, plaintiff’s motion for sanctions is denied.

5 Motion for Appointment of Counsel

6 District courts lack authority to require counsel to represent indigent prisoners in section

7 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

8 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

9 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

10 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

11 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

12 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

13 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

14 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

15 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

16 legal education and limited law library access, do not establish exceptional circumstances that

17 warrant a request for voluntary assistance of counsel.

18 Having considered the factors under Palmer, the undersigned finds that plaintiff has failed

19 to meet his burden of demonstrating exceptional circumstances warranting the appointment of

20 counsel. Plaintiff’s motion for appointment of counsel is denied. 21 Motion for Appointment of Expert

22 Plaintiff requests that the court appoint an expert to demonstrate that the actions of

23 defendants led or contributed to plaintiff’s mental decompensation. (ECF No. 92 at 7.)

24 Rule 706 of the Federal Rules of Evidence authorizes the court to appoint an independent

25 expert. Such an appointment is within the discretion of the trial judge and may be appropriate

26 when “’scientific, technical, or other specialized knowledge will assist the trier of fact to 27 understand the evidence or decide a fact in issue.’” See Torbert v. Gore, 2016 WL 3460262, at

28 *2 (S.D. Cal. June 23, 2016) (citation omitted); see also Armstrong v. Brown, 768 F.3d 975, 987 6 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 7 of 40

1 (9th Cir. 2014) (“A Rule 706 expert typically acts as an advisor to the court on complex scientific,

2 medical, or technical matters.”).

3 An expert appointed pursuant to Rule 706 does not serve as an advocate for either party,

4 and each party retains the ability to call its own experts. Fed. R. Evid. 706(e); Faletogo v. Moya,

5 2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2013) (Rule 706 “does not contemplate court

6 appointment and compensation of an expert witness as an advocate for one of the parties.”). “The

7 in forma pauperis statute, 28 U.S.C. § 1915, does not authorize federal courts to appoint or

8 authorize payment for expert witnesses for prisoners or other indigent litigants.” Stakey v.

9 Stander, 2011 WL 887563, at *3 n.1 (D. Idaho Mar. 10, 2011); see also Dixon v. Ylst, 990 F.2d

10 478, 480 (9th Cir. 1993) (“The magistrate judge correctly ruled that 28 U.S.C. § 1915, the in

11 forma pauperis statute, does not waive payment of fees or expenses for witnesses.”). “Ordinarily,

12 the plaintiff must bear the costs of his litigation, including expert expenses, even in pro se cases.”

13 Stakey, 2011 WL 887563, at *3 n.1.

14 In this case, plaintiff requests that the court appoint an expert witness to advocate on his

15 behalf, which is not authorized by Rule 706. Even if plaintiff is truly seeking a neutral expert, the

16 undersigned finds that appointment of a neutral expert is not warranted. As discussed herein, the

17 undersigned recommends that defendant Haring be granted summary judgment on the grounds

18 that plaintiff’s claims are barred by the statute of limitations and released pursuant to a settlement

19 agreement. The undersigned also finds that defendants Hinrichs, Lynch and Virga should be

20 granted summary judgment as to the merits of plaintiff’s Eighth Amendment claims. An expert 21 would not help the court in evaluating plaintiff’s Eighth Amendment claims against defendants

22 Hinrichs, Lynch and Virga.

23 For the reasons discussed above, plaintiff’s motion for appointment of an expert witness is

24 denied.

25 C. Plaintiff’s Supplemental Motion for Sanctions (ECF No. 93)

26 In his supplemental motion for sanctions, plaintiff again argues that defendants failed to 27 produce all relevant documents in their supplemental response to request for production no. 5, as

28 ordered by the undersigned on May 21, 2020. (ECF No. 93.) Plaintiff argues that he is entitled to 7 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 8 of 40

1 receive GA-154 forms dated October 3, 2011, February 7, 2013, and January 29, 2016. (Id. at 3.)

2 As discussed above, request no. 5 did not seek documents for January 29, 2016. The

3 records submitted by defendants reflect that they provided plaintiff with GA-154 forms for

4 October 3, 2011, and February 7, 2013. (ECF No. 95-1 at 5, 6.)

5 On October 5, 2020, plaintiff filed a reply to defendants’ opposition. (ECF No. 97.) In

6 his opposition, plaintiff appears to raise a new argument that the GA-154 form for October 3,

7 2011, was improperly redacted. (ECF No. 97 at 2.) The undersigned will not address this

8 argument because it was not raised in the supplemental motion for sanctions, where plaintiff

9 argued that he did not receive the GA-154 form for October 3, 2011.

10 For the reasons discussed above, plaintiff’s supplemental motion for sanctions is denied.

11 D. Plaintiff’s Motion to Amend Evidence (ECF No. 94)

12 In this motion, plaintiff appears to request a copy of an email, which he claims is relevant

13 to his claims against defendant Haring. (ECF No. 94 at 3.) Plaintiff also alleges that defendants

14 “deliberately suppressed information that could be viable” to his case by copying over written

15 notes made on a GA-154 document at DEF 185. (Id.)

16 In the opposition to the pending motion, defendants address plaintiff’s claim that they

17 “deliberately suppressed” the GA-154 document at DEF 185. (ECF No. 96.) In a declaration

18 attached to the opposition, defense counsel states that after receiving plaintiff’s motion, he

19 reviewed the documents he received from CSP-Sacramento in connection with defendants’

20 supplemental response to defendants’ request for production. (ECF No. 96-1 at 1.) Defense 21 counsel verified that DEF 185 was produced to plaintiff as received from the institution, with the

22 exception of the redaction of information of inmate Thomas. (Id.)

23 Defense counsel then contacted the Litigation Coordinator at CSP-Sacramento (including

24 providing a copy of the document produced) regarding DEF 185 and inquired whether he had a

25 complete copy of the document and if it was possible it had been scanned incorrectly. (Id. at 1-2.)

26 The Litigation Coordinator reviewed the document in the archives and verified that the copy he 27 sent to defense counsel was all he was able to recover. (Id. at 2.) In his email to defense counsel,

28 the Litigation Coordinator states that, “The copy was actually torn in half. The bottom portion of 8 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 9 of 40

1 the paper is not located within the archives. I searched through all documents in the folder. So

2 the copy you have is all we are able to recover.” (Id. at 6.)

3 Based on the information in defendants’ opposition, it does not appear that defendants

4 would be able to provide plaintiff with a “better” copy of DEF 185. For this reason, plaintiff’s

5 motion requesting that defendants be sanctioned for providing him with an incomplete copy of

6 DEF 185 is denied.

7 In the pending motion, plaintiff also requests that defendants be ordered to provide him

8 with the email explaining why the request to assign him to a cell with side-by-side beds was not

9 approved by the Captain in October 2011. (ECF No. 94 at 2-3.) It appears that plaintiff is

10 seeking additional discovery in order to obtain this email. Accordingly, the undersigned

11 construes plaintiff’s request for this email as having been brought pursuant to Federal Rule of

12 Civil Procedure 56(d).

13 Pursuant to Rule 56(d), a court may give the party opposing summary judgment time to

14 take discovery if the party makes “(a) a timely application which (b) specifically identifies (c)

15 relevant information, (d) where there is some basis for believing that the information sought

16 actually exists.” Emp’rs Teamsters Local Nos. 175 and 505 Pension Trust Fund v. Clorox Co.,

17 353 F.3d 1125, 1129 (9th Cir. 2004) (quoting VISA Int'l Serv. Ass'n v. Bankcard Holders of Am.,

18 784 F.2d 1472, 1475 (9th Cir. 1986)). “The burden is on the party seeking additional discovery to

19 proffer sufficient facts to show that the evidence sought exists, and that it would prevent summary

20 judgment.” Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001). “The 21 district court does not abuse its discretion by denying further discovery if the movant has failed

22 diligently to pursue discovery in the past, or if the movant fails to show how the information

23 sought would preclude summary judgment.” Cal. Union Ins. Co. v. Am. Diversified Sav. Bank,

24 914 F.2d 1271, 1278 (9th Cir. 1990).

25 The email plaintiff seeks is related to the merits of plaintiff’s claims against defendant

26 Haring. As discussed herein, the undersigned recommends that defendant Haring be granted 27 summary judgment on the grounds that the claims against him are barred by the statute of

28 limitations and were released pursuant to a settlement agreement. For this reason, plaintiff has 9 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 10 of 40

1 not demonstrated how the additional discovery sought regarding his claims against defendant

2 Haring, i.e., the email, would preclude summary judgment. Accordingly, plaintiff’s motion to

3 conduct additional discovery in order to obtain the email is denied.

4 IV. Defendants’ Summary Judgment Motion

5 A. Legal Standard for Summary Judgment

6 Summary judgment is appropriate when it is demonstrated that the standard set forth in

7 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the

8 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

9 judgment as a matter of law.” Fed. R. Civ. P. 56(a).

10 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis 11 for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, 12 together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 13

14 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P.

15 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need

16 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing

17 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376,

18 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory

19 committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial

20 burden of production may rely on a showing that a party who does have the trial burden cannot 21 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment

22 should be entered, after adequate time for discovery and upon motion, against a party who fails to

23 make a showing sufficient to establish the existence of an element essential to that party’s case,

24 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.

25 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case

26 necessarily renders all other facts immaterial.” Id. at 323. 27 Consequently, if the moving party meets its initial responsibility, the burden then shifts to

28 the opposing party to establish that a genuine issue as to any material fact actually exists. See 10 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 11 of 40

1 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

2 establish the existence of such a factual dispute, the opposing party may not rely upon the

3 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the

4 form of affidavits, and/or admissible discovery material in support of its contention that such a

5 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party

6 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome

7 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

8 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

9 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return

10 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436

11 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d

12 1564, 1575 (9th Cir. 1990).

13 In the endeavor to establish the existence of a factual dispute, the opposing party need not

14 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

15 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

16 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce

17 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

18 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963

19 amendments).

20 In resolving a summary judgment motion, the court examines the pleadings, depositions, 21 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R.

22 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at

23 255. All reasonable inferences that may be drawn from the facts placed before the court must be

24 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587; Walls v. Central Costa

25 County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). Nevertheless, inferences are not

26 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from 27 which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224,

28 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a 11 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 12 of 40

1 genuine issue, the opposing party “must do more than simply show that there is some

2 metaphysical doubt as to the material facts. . . . Where the record taken as a whole could

3 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

4 trial.’” Matsushita, 475 U.S. at 586 (citation omitted).

5 By notice provided on March 14, 2018 (ECF No. 21), plaintiff was advised of the

6 requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil

7 Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v.

8 Eikenberry, 849 F.2d 409 (9th Cir. 1988).

9 B. Plaintiff’s Claims

10 This action proceeds on plaintiff’s amended complaint filed September 5, 2017, as to

11 defendants Haring, Hinrichs, Lynch and Virga. (ECF No. 13.)

12 Defendants Hinrichs, Lynch and Virga

13 Plaintiff alleges that he requires single-cell housing based on mental illness. (ECF No. 13

14 at 2-3.) Plaintiff alleges that in 2004, prison psychologist Dias requested that plaintiff receive

15 single-cell status for mental health reasons. (Id. at 4.) Prison officials at California State Prison-

16 Centinella denied this request. (Id.) Plaintiff alleges that the failure of prison staff to

17 accommodate his need for special housing based on his mental health contributed to the

18 deterioration of his mental health. (Id. at 5.) As a result of the deterioration of his mental health,

19 plaintiff was placed in the Crisis Treatment Center (“CTC”) of various prisons for suicidal

20 ideation/suicide attempts and was involuntarily medicated for three years. (Id.) 21 Plaintiff alleges that in 2013, defendants Hinrichs, Lynch and Virga denied his requests

22 for single-cell housing, made in an administrative grievance, on the grounds that plaintiff did not

23 have a history of in-cell physical or sexual violence against a cellmate. (Id. at 2-3.) In other

24 words, plaintiff claims, defendants Hinrichs, Lynch and Virga denied plaintiff’s request for

25 single-cell housing without regard to plaintiff’s mental health needs. Plaintiff alleges that these

26 defendants failed to consider his mental health needs pursuant to a “practice or custom.” (Id. at 27 3.) Plaintiff alleges that this was a policy or practice of the California Department of Corrections

28 and Rehabilitation (“CDCR”) because in 2016, CDCR Secretary Scott Kernan issued a 12 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 13 of 40

1 memorandum clarifying that prison staff were to consider, among other things, inmate mental

2 health, when considering whether to grant single-cell status. (Id.)

3 Plaintiff alleges that defendants Hinrichs, Lynch and Virga violated his rights “not to be

4 placed in condition of confinement that posed an unreasonable risk of harm to his future and

5 current health…” (Id. at 18.)

6 Defendant Haring

7 Plaintiff alleges that in September 2011, he was housed in a cell containing side-by-side

8 beds pursuant to a policy carried out by defendant Virga requiring certain disabled inmates to be

9 housed only in cells with side-by-side beds. (Id. at 7.) Plaintiff alleges that side-by-side beds

10 aggravate his mental illness. (Id. at 5.) Plaintiff alleges that he expressed his housing concerns to

11 defendant Haring. (Id.) Plaintiff alleges that defendant Haring refused to move him from the cell

12 even after plaintiff warned him that the housing arrangement would be harmful to his mental

13 disorder. (Id. at 7-8.)

14 C. Preliminary Matters

15 Procedural Deficiencies

16 In the reply, defendants argue that plaintiff failed to respond to their statement of

17 undisputed facts, despite having received notice under Rand. On these grounds, defendants

18 request that the court find defendants’ facts undisputed.

19 Because plaintiff is proceeding pro se, the undersigned considers plaintiff’s opposition,

20 despite plaintiff’s failure to respond to defendants’ statement of undisputed facts. 21 Defendants’ Objections to Plaintiff’s Evidence (ECF No. 85-2)

22 In objection 1, defendants object to the declarations of inmate Ronald Robinson, attached

23 to plaintiff’s opposition, on the grounds that the declarant lacks personal knowledge of the facts,

24 his statements are hearsay and they are irrelevant. (See ECF No. 84 at 44-45.) In his first

25 declaration, inmate Robinson states that from February 2010-2015, he was aware of the

26 institutional practice to house medically disabled prisoners in side-by-side beds. (Id. at 44.) In 27 his second declaration, inmate Robinson states that he knew that inmate Jefferies was openly gay.

28 (Id. at 45.) 13 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 14 of 40

1 The declarations of inmate Robinson are apparently submitted in support of plaintiff’s

2 claims against defendant Haring. As discussed herein, the undersigned finds that plaintiff’s

3 claims against defendant Haring are barred by the statute of limitations and released by the

4 settlement of a prior action. Therefore, because the undersigned does not consider the merits of

5 plaintiff’s claims against defendant Haring, the undersigned need not decide the admissibility of

6 inmate Robinson’s declarations as to the merits of plaintiff’s claims.

7 As discussed herein, plaintiff argues that his claims against defendant Haring are not

8 barred by the statute of limitations pursuant to the continuing violation doctrine. Inmate

9 Robinson’s declaration regarding inmate Jeffries is not relevant to this argument. While inmate

10 Robinson’s declaration regarding the alleged “institutional practice” to house disabled inmates in

11 side-by-side beds may be relevant to this argument, the undersigned agrees with defendants’

12 objection that inmate Robinson lacks personal knowledge of these facts. See Fed. R. Evid. 602

13 (“A witness may testify to support a matter only if evidence is introduced sufficient to support a

14 finding that the witness has personal knowledge of the matter.”) Accordingly, inmate Robinson’s

15 declarations are excluded from consideration with respect to plaintiff’s argument that his claims

16 against defendant Haring are timely pursuant to the continuing violation doctrine.

17 In objections 2-7, defendants object to statements in plaintiff’s declaration submitted in

18 support of his opposition which are related to the merits of his claims against defendant Haring.

19 In objection 2, defendants object to plaintiff’s statements that he told defendant Haring that he

20 would “rather just kill himself” on September 28, 2011. (ECF No. 84 at 36.) In objection 3, 21 defendants object to plaintiff’s statement that, on September 28, 2011, he was left to stand in a

22 small cramped cage on his injured knee for approximately seven hours. (Id.)

23 In objection 4, defendants object to plaintiff’s statement that his injured knee required the

24 aid of a nurse and doctor after standing on it for seven hours in the holding cell. (Id.) In

25 objection 5, defendants object to plaintiff’s statement that defendant Haring was aware of his

26 mental condition. (Id. at 36-37.) In objection 6, defendants object to plaintiff’s statement that on 27 September 29, 2011, Captain Shannan made plaintiff aware that he was going to building 7, cell

28 101, to be housed in a side-by-side cell with an openly gay inmate. (Id. at 37.) In objection 7, 14 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 15 of 40

1 defendants object to plaintiff’s statement that on September 29, 2011, he refused to be housed

2 with the openly gay inmate because he was sure that defendant Haring had something to do with

3 it. (Id.)

4 As discussed herein, the undersigned finds that plaintiff’s claims against defendant Haring

5 are barred by the statute of limitations and released by the settlement of a prior action. Therefore,

6 the undersigned need not consider the admissibility of the statements set forth above as to the

7 merits of plaintiff’s claims against defendant Haring. In addition, it does not appear that

8 plaintiff’s statements set forth above are relevant to plaintiff’s argument that his claims against

9 defendant Haring are timely pursuant to the continuing violation doctrine. For this reason, the

10 undersigned need not consider the admissibility of these statements as to plaintiff’s argument

11 regarding applicability of the continuing violation doctrine.

12 In objection 8, defendants object to plaintiff’s statements in his declaration submitted in

13 support of his opposition at paragraphs 28-32. In paragraph 28, plaintiff states that on September

14 16, 2015, he was housed in a bunk bed. (Id. at 38-39.) In paragraph 29, plaintiff states, “On

15 January 29, 2016, I was relocated back to a side by side bed cell.” (Id.) In paragraph 30, plaintiff

16 states that because he was constantly being compelled to endure the “unlawful practice of being

17 housed in unfavorable cells,” he tried to hang himself in 2016. (Id.) In paragraph 31, plaintiff

18 states that because of his unsuccessful suicide attempt, his level of care was raised to the

19 Enhanced Outpatient Program. (Id. at 39.) In paragraph 32, plaintiff states that on May 28, 2014,

20 he refused to go back to the mainline because of his mental illness and would not return until he 21 received a single cell. (Id.)

22 Defendants object to the statements in paragraphs 28-32 on the grounds that they are not

23 relevant to the merits of plaintiff’s claims against defendants. The claim against defendant

24 Haring is based on events occurring on September 28, 2011, and the claims against defendants

25 Hinrichs, Virga and Lynch are based on their review of a grievance plaintiff submitted in 2013.

26 The undersigned agrees that the statements in paragraphs 28-32 are not relevant to the 27 merits of plaintiff’s claims against defendants. To the extent plaintiff is attempting to expand his

28 claims against defendants by way of his opposition, such amendment is not proper. However, to 15 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 16 of 40

1 the extent the statements set forth above are relevant (and admissible) to plaintiff’s argument that

2 his claims against defendant Haring are not barred by the statute of limitations pursuant to the

3 continuing violation doctrine, defendants’ objections are overruled.

4 In objection 9, defendants object to plaintiff’s statement in his declaration that defendants

5 denied his request for exclusion from side-by-side beds or single cell because of a policy, custom,

6 or practice by the departments’ officials who are denying inmate requests for special housing

7 because their records do not contain a history of in-cell abuse. (Id.) In support of this statement,

8 plaintiff cites his deposition. (Id.) Defendants object to this statement on the grounds that it lacks

9 personal knowledge of the facts stated, lacks foundation, is hearsay and contradicts plaintiff’s

10 deposition testimony.

11 As discussed above, in the amended complaint plaintiff alleges that defendants Hinrichs,

12 Lynch and Virga denied his request for single-cell status pursuant to a policy that failed to

13 consider inmate mental health when determining housing status. In his opposition, plaintiff cites

14 other evidence that allegedly demonstrates the existence of this policy. Accordingly, the

15 undersigned herein considers this statement in plaintiff’s declaration only to the extent it is

16 supported by additional evidence in plaintiff’s opposition.

17 In objection 10, defendants object to plaintiff’s statement in his declaration that while

18 plaintiff was incarcerated at California State Prison-Lancaster (“LAC”), he attempted to receive

19 single-cell status, but this request was denied because plaintiff’s prison record did not contain a

20 history of in-cell abuse. (Id.) In support of this claim, plaintiff cites exhibit J attached to the 21 amended complaint filed September 1, 2017. (ECF No. 12 at 52.) Exhibit J is a classification

22 committee chrono from LAC dated April 4, 2017. (Id.) This chrono states that plaintiff was

23 found to meet the double-cell criteria for various reasons unrelated to his mental health. (Id.)

24 Defendants object to plaintiff’s statement in his declaration that he was denied single-cell

25 status at LAC on the grounds that it is not relevant because plaintiff’s claims against defendants

26 occurred at CSP-Sacramento in 2013. 27 While plaintiff alleges that defendants denied him single-cell status in 2013 pursuant to a

28 policy that excluded inmate mental health from consideration of housing status, the undersigned 16 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 17 of 40

1 finds that the LAC classification committee chrono from 2017 is not relevant to this claim.

2 Accordingly, plaintiff’s statement regarding events occurring at LAC is excluded from

3 consideration.

4 D. Are Plaintiff’s Claims Against Defendant Haring Barred by the Statute of

5 Limitations?

6 Legal Standard

7 For claims brought under 42 U.S.C. § 1983, the applicable statute of limitations is

8 California’s statute of limitations for personal injury actions. See Wallace v. Kato, 549 U.S. 384,

9 387-88 (2007). In California, there is a two-year statute of limitations in § 1983 cases. See Cal.

10 Civ. Proc. Code § 335.1; Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004); Jones v.

11 Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (“[f]or actions under 42 U.S.C. § 1983, courts apply

12 the forum state’s statute of limitations for personal injury actions.”).

13 State tolling statutes also apply to § 1983 actions. See Elliott v. City of Union City, 25

14 F.3d 800, 802 (1994) (citing Hardin v. Straub, 490 U.S. 536, 543-44 (1998)). California Civil

15 Procedure Code § 352.1(a) provides tolling of the statute of limitations for two years when the

16 plaintiff, “at the time the cause of action accrued, [is] imprisoned on a criminal charge, or in

17 execution under sentence of a criminal court for a term of less than for life.” Accordingly,

18 prisoners generally have four years from the time the claim accrues to file their action.

19 The statute of limitations is tolled for the time it takes for a prisoner to administratively

20 exhaust his underlying grievances. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005) 21 (“the applicable statute of limitations must be tolled while a prisoner completes the mandatory

22 exhaustion process”

23 Notwithstanding the application of the forum’s state law regarding the statute of

24 limitations, including statutory and equitable tolling, in the context of a § 1983 action, it is

25 “federal law” which “governs when a claim accrues.” Fink v. Shedler, 192 F.3d 911, 914 (9th

26 Cir. 1999) (citing Elliott v. City of Union City, 25 F.3d 800, 801-02 (9th Cir.1994)). “A claim 27 accrues when the plaintiff knows, or should know, of the injury which is the basis of the cause of

28 action.” Id. (citing Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.1996)). 17 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 18 of 40

1 Discussion

2 Defendants argue that plaintiff’s claims against defendant Haring accrued in September

3 2011 when defendant Haring allegedly refused to move plaintiff from the cell containing side-by-

4 side beds. Defendants state that plaintiff’s claim specifically accrued on September 28, 2011,

5 which is the date defendant Haring issued plaintiff a rules violation report for refusing to return to

6 his cell. Defendants argue that plaintiff had four years from September 28, 2011, i.e., until

7 September 28, 2015, to file a timely action. Defendants argue that the instant action, filed on

8 April 19, 2017, pursuant to the mailbox rule, was filed a year and a half too late.

9 In his opposition, plaintiff does not appear to dispute that his claims against defendant

10 Haring arose on September 28, 2011.

11 Defendants argue that even including the time it took plaintiff to exhaust his available

12 administrative remedies, plaintiff’s claim against defendant Haring is time barred. Defendants

13 state that plaintiff submitted his first level administrative grievance on August 6, 2013, and the

14 process was complete on January 28, 2014, i.e., a period of 176 days, including the last day. (See

15 ECF No. 80-4 at 66 (Third Level Decision for grievance no. SAC-13-02151 dated January 28,

16 2014); id. at 68-74 (602 grievance signed by plaintiff on August 6, 2013 for grievance SAC-13-

17 02151)). Adding 176 days to September 28, 2015, extends the statute of limitations to March 22,

18 2016. The instant action, filed April 19, 2017, is still not timely.1

19 In his opposition, plaintiff argues that his claims against defendant Haring are not barred

20 by the statute of limitations based on the continuing violation doctrine. (ECF No. 84 at 19-21.) 21 “The continuing violation doctrine is an equitable doctrine designed ‘to prevent a

22 defendant from using its earlier illegal conduct to avoid liability for later illegal conduct of the

23 same sort.” Herrington v. Bristol, 2019 WL 7598855, at *14 (D. Ore. July 29, 2019) (citing

24 O’Loghlin v. Cty of Orange, 229 F.3d 871, 875 (9th Cir. 2000)). “A continuing violation, or

25 1 The undersigned observes that grievance SAC-13-02151 raised plaintiff’s claim that defendant 26 Haring housed plaintiff in a cell with a side-by-side bed. (Id. at 70.) In his response to defendants’ interrogatories, plaintiff also states that grievance no. SAC-13-02151 exhausted his 27 administrative remedies as to his claims against defendant Haring. (ECF No. 80-4 at 119.) Therefore, the parties do not dispute that grievance no. SAC-13-02151 exhausted plaintiff’s 28 claims against defendant Haring. 18 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 19 of 40

1 continuing tort, occurs when a series of wrongful acts of the same nature causes the alleged harm,

2 rather than a specific act within the larger pattern of wrongful conduct.” Id. (citing Flowers v.

3 Carville, 310 F.3d 1118, 1126 (9th Cir. 2002) (citing Page v. United States, 729 F.2d 818, 821

4 (D.C. Cir. 1984)). “The doctrine thus comes into play only where there is no discrete act or

5 incident that can fairly be determined to have caused the alleged harm.” Id. (citing Flowers, 310

6 F.3d at 1126). “If the continuing violation doctrine applies, the cause of action accrues when the

7 tortious conduct ceases.” Id. (citing Flowers, 310 F.3d at 1126).

8 “The continuing violation doctrine applies to Section 1983 actions.” Id. at * 15 (citing

9 Knox, 260 F.3d at 1013). “The Ninth Circuit has yet to apply the doctrine to Eighth Amendment

10 deliberate indifference claims, but it has recently suggested a willingness to do so.” Id. (citing

11 Chestra v. Davis, 747 F. App'x 626, 627 (9th Cir. 2019) (“And, even assuming that the

12 continuing-violation doctrine applies [to this Eighth Amendment deliberate indifference claim],

13 Chestra does not allege sufficient facts within the statute of limitations to satisfy this doctrine”).

14 “Furthermore, other circuits have applied the doctrine to such claims, as have many district courts

15 in this circuit.” Id. (citing Heard v. Sheahan, 253 F.3d316, 318 (7th Cir. 2001) (defendants’

16 alleged continuous refusal to treat a prisoner’s hernia was a “series of wrongful acts” which

17 created a “series of claims”); Lavellee v. Listi, 611 F.2d 1129, 1132 (5th Cir. 1980) (“[F]ailure to

18 provide needed and requested medical attention constitutes a continuing tort, which does not

19 accrue until the date medical attention is provided”); Sheridan v. Reinke, 2012 WL1067079, at *5

20 (D. Idaho Mar. 28, 2012) (allegations of continuing deliberate indifference to prisoner’s personal 21 safety were sufficiently related to survive motion to dismiss); Guitterrez v. Williams, 2011 WL

22 2559788, at *5 (D. Or. June 29, 2011) (pro se plaintiff's allegations that suggested a number of

23 Eighth Amendment violations occurred during the two-year limitations period was sufficient to

24 defeat motion to dismiss based on timeliness).

25 “The continuing violation doctrine therefore may toll the two-year statute of limitations if

26 [plaintiff] can provide evidence the alleged acts ‘are related closely enough to constitute a 27 continuing violation, and that one or more of the acts falls within the limitations period.’” Id.

28 quoting Knox, 260 F.3d at 1013 (quoting DeGrassi v. City of Glendora, 207 F.3d 636, 645 (9th 19 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 20 of 40

1 Cir. 2000)). “In considering whether the doctrine applies, ‘[e]ach defendant’s conduct is

2 separately evaluated to determine if that defendant engaged in a continuing pattern of

3 violations.’” Id. (quoting Alexander v. Williams, 2013 WL 6180598, at *15 (D. Or. Nov. 25,

4 2013) (quoting Davis v. N.J. Dep't of Corr., 2011 WL 5526081, at *6 (D.N.J. Nov. 14, 2011)).

5 “However, the continuing violation doctrine does not apply if the harm alleged is a ‘mere

6 continuing impact from past violations,’” Id. (quoting Knox, 260 F.3d at 1013), “or if the claim is

7 ‘based on an independently wrongful, discrete act.’” Id. (quoting Pouncil v. Tilton, 704 F.3d 568,

8 581 (9th Cir. 2012)). “Thus, ‘the critical distinction in the continuing violation analysis is

9 whether the plaintiff complains of the present consequence of a one-time violation, which does

10 not extend the limitations period, or the continuation of that violation into the present, which

11 does.’” Id. (quoting Brown v. Ga. Bd. Of Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir.

12 2003) (citation omitted)).

13 In support of his argument that the continuing violation doctrine applies to his claims

14 against defendant Haring, plaintiff allege that he was placed in a side-by-side bed from October 3,

15 2011, until January 28, 2013, and from February 7, 2013, to June 28, 2013. (ECF No. 84 at 38.)

16 However, assuming applicability of the continuing violation doctrine to plaintiff’s Eighth

17 Amendment deliberate indifference claim, plaintiff does not allege a series of ongoing, related

18 acts by defendant Haring, of which at least one falls within the period of limitations. Rather,

19 plaintiff alleges that defendant Haring violated his constitutional rights during one discrete

20 incident, i.e., on September 28, 2011, when defendant Haring allegedly refused to move plaintiff 21 from the cell containing a side-by-side bed. Plaintiff does not allege (or demonstrate) that

22 defendant Haring continued to be responsible for plaintiff’s placement in cells with side-by-side

23 beds after September 28, 2011. For these reasons, plaintiff has not demonstrated applicability of

24 the continuing violation doctrine.

25 In addition, the undersigned observes that in his operative amended complaint, plaintiff

26 alleges that in September 2011, based on a “very discriminatory ‘custom’ arbitrarily being carry 27 out and condoned by Defendant T. Virga, SAC’s Warden, prison officials who mandating certain

28 disabled inmates to [only] be housed in a side-by-side bed cell. Plaintiff was relocated to a 20 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 21 of 40

1 building, that contains such cells.” (ECF No. 13 at 7.) Plaintiff goes on to allege, in relevant part,

2 “Here, prison officials claim that a ‘side-by-side’ bed cells are reserved for inmates whose

3 disabilities mandate their placement on the lower tier bunk. But after plaintiff had his ‘lower tier’

4 restriction chrono removed on December 19, 2011, voluntarily, so he would no longer meet the

5 prison criteria...However, SAC’s officials still mandated his placement inside such cells.” (Id. at

6 9.)

7 In the amended complaint, plaintiff alleges that despite the removal of his lower tier

8 restriction in December 2011, prison officials not named as defendants in this action continued to

9 place him in cells with side-by-side beds. Therefore, plaintiff does not allege that continued

10 application of the policy identified in the amended complaint led to his placement in cells with

11 side-by-side beds after December 2011. These alleged circumstances further undermine

12 plaintiff’s argument that his claims against defendant Haring are subject to the continuing

13 violation doctrine.

14 For the reasons discussed above, the undersigned finds that plaintiff’s claims against

15 defendant Haring are barred by the statute of limitations. On these grounds, defendant Haring

16 should be granted summary judgment.

17 E. Did Plaintiff Release His Claims Against All Defendants When He Settled His

18 Prior Action In 2017?

19 Defendants argue that plaintiff released all claims raised in the instant action in the

20 settlement agreement reached in Coleman v. CDCR, 2:13-cv-1021 JAM KJN P (E.D.). 21 A release terminates legal liability between the releasor and the releasee. McKee v.

22 McKenna, 2012 WL 4127732, at *4 (Aug. 10, 2012). The interpretation and validity of a release

23 of federal claims is governed by federal law. Id.; see Jones v. Taber, 648 F.2d 1201, 1203 (9th

24 Cir. 1981); Stroman v. West Coast Grocery Co., 884 F.2d 458, 461 (9th Cir. 1989). “Moreover,

25 ‘an agreement need not specifically recite the particular claims waived in order to be effective.’”

26 Id. (quoting Stroman, 884 F.2d at 461). 27 A release of claims for violations of civil and constitutional rights must be voluntary,

28 deliberate, and informed. Id. (citing Jones, 648 F.2d at 1203). “A party seeking to rely on a 21 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 22 of 40

1 release in a § 1983 action has the burden of proving its validity.” Id. (citing Jones, 648 F.3d at

2 1203–04).

3 Case no. 13-1021 proceeded on plaintiff’s second amended complaint against two

4 defendants named in the instant action, i.e., defendants Haring and Virga, as well as defendants

5 DeRoco and Clough. See 13-cv-1021 JAM KJN P (ECF No. 67 at 1). Plaintiff alleged that he

6 was discriminated against in violation of § 504 of the Rehabilitation Act (“RA”), based on his

7 mental and physical disability, when defendant Haring denied plaintiff bunk-bed housing, and

8 insisted on housing plaintiff in side-by-side beds cells. Id. (ECF No. 67 at 1-2.) Plaintiff also

9 alleged that defendant Haring violated his Eighth Amendment rights by his efforts to place

10 plaintiff in the side-by-side cell on September 28, 2011. Id. (ECF No. 67 at 2, 8-9.)

11 In 13-1021, plaintiff also alleged that defendants Virga, DeRoco and Clough violated

12 plaintiff’s right not to be discriminated against by regarding plaintiff as affiliated or associated

13 with a “disruptive group” which took part in racial riots on December 7, 2011, and April 16,

14 2012, even though plaintiff did not participate in the riots. Id. (ECF No. 67 at 2-3.) Plaintiff

15 challenged the extended modified program on equal protection grounds. Id. (ECF No. 67 at 2-3.)

16 In 13-1021, plaintiff also alleged that defendants Virga, DeRoco and Clough were deliberately

17 indifferent to plaintiff’s serious need for outdoor exercise from December 7, 2011, until February

18 6, 2012. Id. (ECF No. 67 at 3.)

19 On December 9, 2015, plaintiff’s claims against defendant Haring in 13-1021 were

20 dismissed based on plaintiff’s failure to exhaust administrative remedies. Id. (ECF No. 77.) 21 On March 6, 2017, the parties voluntarily dismissed 13-1021 pursuant to a settlement

22 agreement. Id. (ECF Nos. 130, 131.) The settlement agreement states, in relevant part, that it

23 concerns plaintiff “and the California Department of Corrections and Rehabilitation (“CDCR”) on

24 behalf of defendants Virga, deRoco, Haring and Clough.” (ECF No. 80-4 at 101.) The settlement

25 agreement states, in relevant part, that the agreement “covers all of the claims and allegations in

26 the complaint and any amendments thereto against defendants, whether named or unnamed and 27 whether served or unserved, and any past or current employees of CDCR.” (Id.)

28 //// 22 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 23 of 40

1 The settlement agreement states, in relevant part, that

2 It is the intention of the parties in signing this agreement that it shall be effective as a full and final accord and satisfaction and release 3 from all claims asserted in the complaint. By signing this agreement, plaintiff releases CDCR, defendants, whether named or unnamed and 4 whether served or unserved, and any other past or current CDCR employees from all claims, past, present and future, known or 5 unknown, that could arise from the facts alleged in the complaint. 6 (Id. at 102.)

7 In the pending summary judgment motion, defendants argue that plaintiff released the

8 claims raised in the instant action because they arise from the facts alleged in 13-1021.

9 Defendants contend that there can be no dispute that the release signed in 13-1021 by plaintiff

10 was voluntary, deliberate and informed. In support of the argument that plaintiff understood the

11 terms of the settlement agreement, defendants cite plaintiff’s deposition testimony, where plaintiff

12 acknowledged his signature on the settlement agreement. (ECF No. 80-4 at 61.) Defendants

13 contend that plaintiff signed the agreement and release after it was negotiated in a neutral

14 environment; plaintiff signed the release after a settlement conference conducted by a United

15 States magistrate judge (the undersigned), at which he indicated his understanding of the terms;

16 and plaintiff received $15,000 in exchange.

17 For the following reasons, the undersigned finds that plaintiff did not release his claims

18 against defendants Hinrichs, Lynch and Virga in the settlement agreement reached in 13-1021. In

19 the instant action, plaintiff alleges that defendants Hinrichs, Lynch and Virga denied his request

20 for single-cell housing in 2013 without regard to plaintiff’s mental health needs. Plaintiff alleges 21 that these defendants failed to consider his mental health needs pursuant to a “practice or

22 custom,” which did not consider inmate mental health when determining whether inmates

23 qualified for single-cell housing. Plaintiff did not raise these claims against defendants Hinrichs,

24 Lynch and Virga in 13-1021. In addition, the claims raised against defendant Hinrichs, Lynch

25 and Virga in the instant action do not arise from the claim that defendant Haring subjected

26 plaintiff to side-by-side housing in 2011, raised in 13-1021.2 The claims raised against 27 2 The court previously denied defendants’ motion to dismiss the claims against defendants 28 Hinrichs, Lynch and Virga on the grounds of claim preclusion, i.e., plaintiff could have raised 23 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 24 of 40

1 defendants Hinrichs, Lynch and Virga in the instant action also do not arise from the claim that

2 defendants Virga, DeRoco and Clough denied plaintiff’s need for outdoor exercise from

3 December 7, 2011, until February 6, 2012, raised in 13-1021. Accordingly, defendants’ motion

4 for summary judgment on the grounds that plaintiff released his claims against defendants

5 Hinrichs, Lynch and Virga should be denied.

6 It is clear that plaintiff raised the claim he now raises against defendant Haring in 13-

7 1021. In his opposition, plaintiff argues that “no evidence exists that he knew or was aware that

8 the settlement agreement included his claims against defendant Haring.” (ECF No. 84 at 26.)

9 In support of this argument, plaintiff cites Jones v. Taber, 648 F.2d 1201 (9th Cir. 1981),

10 where the Ninth Circuit found that, “[i]n the context of section 1983 waivers, several factor are

11 relevant: although both parties may agree on certain facts, including the accuracy of the

12 transcript of the claimed settlement conference, summary judgment is precluded when conflicting

13 inferences might be drawn about a party’s state of mind as reflected by objective indications.” Id.

14 at 1204. In Jones, the court concluded that even the fact that Jones admitted that his signature on

15 the release was voluntary was not controlling. Id. “That Jones admitted in his deposition that his

16 signature on the release was ‘voluntary’ is not by itself controlling in this regard, absent a

17 showing that he understood the meaning of the term in its legal sense.” Id. “On the record before

18 us his statement amounts to little more than a legal conclusion on a question as to which he was

19 not well informed.” Id. In Jones, the Ninth Circuit also found that “objective indications of

20 coercive pressures and a lack of understanding [footnote omitted] here that preclude granting 21 summary judgment for defendants.” Id.

22 In his verified declaration submitted in support of his opposition, plaintiff does not claim

23 that he did not understand that his settlement in 13-1021 included his claims against defendant

24 Haring. (Id. at 35-40.) However, in the declaration filed in support of his sur-reply, plaintiff

25 states that at the March 2, 2017 settlement hearing in 13-1021, he “was never made aware or

26 given the impression that my agreement would include the dismissal without prejudice defendant 27

28 these claims in 13-1021. (See ECF Nos. 53, 56.) 24 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 25 of 40

1 Haring. Because the hearing only spoke on my claims against defendants Virga, Deroco and

2 Clough, i.e., my ‘modified program’ claims. And the settlement transcripts will bolster my

3 claim.” (ECF No. 88 at 15-16.)

4 As discussed above, the written settlement agreement in 13-1021 identifies defendant

5 Haring as one of the parties to the settlement. (ECF No. 80-4.) The written settlement agreement

6 specifically states that the agreement releases defendants (including defendant Haring) from all

7 claims, past, present and future, known or unknown, that arise or could arise from the facts

8 alleged in the complaint. (Id. at 102.) Thus, the written settlement agreement released plaintiff’s

9 claims against defendant Haring, even though the claims against defendant Haring had been

10 dismissed based on plaintiff’s failure to exhaust administrative remedies.

11 The undersigned has listened to the recording of the March 2, 2017 hearing where the

12 settlement agreement in 13-1021 was placed on the record. Although plaintiff’s claims against

13 defendant Haring were not specifically discussed at this hearing, the undersigned discussed with

14 plaintiff the terms of the settlement agreement, as set forth above, including the release. At the

15 hearing, the undersigned stated that plaintiff would receive $15,000 for the resolution of “all

16 claims” that plaintiff brought or could have brought in 13-1021. The undersigned did not state

17 that the settlement was limited to plaintiff’s claims against defendants Virga, Deroco and Clough

18 regarding the modified program, as plaintiff alleges in his declaration attached to his sur-reply.

19 Plaintiff expressed no confusion or concerns regarding the terms of the settlement agreement.

20 In Jones, supra, the record contained evidence suggesting that the plaintiff’s agreement to 21 the release was not voluntary. For this reason, the Ninth Circuit found that the plaintiff’s

22 signature on the release was not sufficient evidence that his agreement to the release was

23 voluntary. In contrast, in the instant case, the record contains no evidence demonstrating that at

24 the time plaintiff entered the settlement agreement, plaintiff was coerced or that he did not

25 understand that the release included all of the claims he brought or could have brought against

26 defendants, including his claims against defendant Haring. As discussed above, the terms of the 27 settlement agreement, signed by plaintiff, identified defendant Haring as a party to the agreement

28 and released plaintiff’s claims against all defendants. 25 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 26 of 40

1 Accordingly, for the reasons discussed above, the undersigned finds that the evidence

2 demonstrates that plaintiff waived his claims against defendant Haring in the settlement

3 agreement reached in 13-1021. On these grounds, defendant Haring should be granted summary

4 judgment.

5 F. Did Defendants Hinrichs, Lynch and Virga Violate Plaintiff’s Eighth Amendment

6 Rights in 2013 When They Denied Plaintiff’s Requests for Single-Cell Status?

7 Legal Standard

8 Where a prisoner’s Eighth Amendment claim arises in the context of medical care,

9 including mental health care, the prisoner must allege and prove “acts or omissions sufficiently

10 harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429

11 U.S. 97, 106 (1976). An Eighth Amendment medical claim has two elements: “the seriousness of

12 the prisoner’s medical need and the nature of the defendant’s response to that need.” McGuckin

13 v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc.

14 v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

15 A medical need is serious “if the failure to treat the prisoner’s condition could result in

16 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974

17 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include

18 “the presence of a medical condition that significantly affects an individual’s daily activities.” Id.

19 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the

20 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 21 825, 834 (1994).

22 If a prisoner establishes the existence of a serious medical need, he must then show that

23 prisoner officials responded to the serious medical need with deliberate indifference. See Farmer,

24 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny,

25 delay, or intentionally interfere with medical treatment, or may be shown by the way in which

26 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th 27 Cir. 1988).

28 //// 26 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 27 of 40

1 Before it can be said that a prisoner’s civil rights have been abridged with regard to

2 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’

3 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

4 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also

5 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in

6 diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth

7 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of

8 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for

9 the prisoner's interests or safety.’” Farmer, 511 U.S. at 835.

10 Finally, mere differences of opinion between a prisoner and prison medical staff or

11 between medical professionals as to the proper course of treatment for a medical condition do not

12 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058.

13 Defendants’ Motion

14 Defendants contend that plaintiff’s claims against them are based on their denial of

15 plaintiff’s administrative grievances requesting single-cell housing, as alleged in the September 5,

16 2017 amended complaint. At his deposition, plaintiff testified that his claims against defendants

17 Virga, Hinrichs and Lynch were based on their denial of his grievances requesting single-cell

18 status filed in 2013. (Plaintiff’s deposition at 19, 53-56.)

19 Defendants move for summary judgment on the grounds that at the time they denied

20 plaintiff’s grievances requesting single-cell status, nothing in plaintiff’s records indicated that a 21 mental health clinician had recommended him for single-cell status. Therefore, defendants argue,

22 they did not act with deliberate indifference when they denied plaintiff’s grievances. The

23 undersigned sets forth defendants’ evidence in support of these arguments herein.

24 In his declaration, defendant Virga states that per CDCR regulations and the Department’s

25 Operational Manual (“DOM”), classification committees, not individual staff, determine whether

26 an inmate should be single-celled or double-celled. (ECF No. 80-7 at 2.) Under CDCR 27 regulations, the expectation is that all inmates are expected to double-cell and to accept housing

28 as assigned; this applies whether the inmates is housed in general population, administrative 27 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 28 of 40

1 segregation or a security housing unit. (Id.) Per CDCR regulations, inmates are not entitled to

2 single-cell assignment, housing location of choice or to a cellmate of their choice. (Id.)

3 Defendant Virga states in his declaration that under the regulations, classification

4 committees may consider inmates for single-celling based on factors enumerated in the DOM and

5 regulations and will consider any recommendations of medical or mental health staff for single-

6 cell status. (Id.)

7 In grievance no. SAC-13-02151, plaintiff appealed the July 3, 2013 decision of the

8 Institutional Classification Committee (“ICC”) for the Administrative Segregation Unit (“ASU”)

9 finding him eligible for double-cells status. (Id. at 5-7.) In this grievance, plaintiff claimed that

10 clinicians had requested that he be given single-cell status. (Id. at 5-7.) Defendant Virga served

11 as the chairperson of the July 3, 2013 Classification Committee which found that plaintiff

12 qualified for double-cell status. (Id. at 12.)

13 The July 3, 2013 Classification Committee report states, in relevant part, “Double Cell

14 with compatible housing status based on no documented history of in-cell violence, no predatory

15 behavior, and no victimization concerns. ICC has reviewed and discussed the outside the cell

16 violence; RVR 12/05/01 Mutual Combat.” (Id.) The Classification Committee report also

17 contains a mental health assessment which states: “The treating clinician presented ICC with a

18 Mental Health Assessment that included S’s Level of Care, treatment needs, ability to

19 understand/participate in the classification committee hearing, and effects of this psychological

20 state will not decompensate if ordered retained in segregated housing.” (Id.) 21 In his declaration, defendant Virga states that mental health clinician C. Moazam was

22 present at the committee. (Id. at 2.) Defendant Virga states that if a single cell had been

23 recommended due to plaintiff’s mental health status, any such recommendation would have been

24 considered by the committee and would have been reflected on the 128-G. (Id.) Defendant Virga

25 states that the fact that no recommendation is noted on the 128-G indicates that no such

26 recommendation was made. (Id.) Defendant Virga also states that plaintiff refused to appear at 27 the committee. (Id.) Defendant Virga states that because plaintiff did not attend the committee,

28 the committee did not have plaintiff’s input as to double or single-celling and his mental health 28 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 29 of 40

1 condition. (Id.)

2 On September 19, 2013, defendant Hinrichs denied plaintiff’s first level grievance, no.

3 SAC-13-02151, in which plaintiff claimed clinicians gave him single-cell status and excluded

4 plaintiff from side-by-side beds. (ECF No. 80-6 at 9.) Plaintiff stated that he should be single-

5 celled “based on a medical standpoint.” (Id.)

6 In denying plaintiff’s grievance, defendant Hinrichs wrote,

7 During all your General Population time, you have been double celled by all committees. You have also been doubled celled while 8 in ASU. The Mental Health documents you have provided do not place you on single cell status or exclude you from cells with side by 9 side beds. The one document (CDCR 7230 MH) only states a discussion you had with a clinician wherein you requested single cell 10 and exclusion from the cells with side by side beds. This was dated October 1, 2011. Clinicians cannot make you single celled or 11 exclude you from certain housing. The clinician did refer you on January 23, 2004 to Inter Disciplinary Treatment Team (IDTT) for 12 evaluation of Single Cell Status. You have been evaluated at each Committee and it has been determined based on no documented 13 history of in-cell violence, no predatory behavior and no victimization concerns, you can be double celled. 14 Mental Health staff were contacted to review your health records 15 regarding single cell. Mental health staff reported, “On his most recent treatment plan, ‘no recommendation’ for housing is marked. 16 There is no mention of single cell in the recent notes or treatment plan.” 17 It is the expectation of the department for all inmates to double cell. 18

19 (Id. 80-6 at 9.)

20 In his declaration submitted in support of the summary judgment motion, defendant 21 Hinrichs states that in reviewing plaintiff’s grievance, he reviewed the classification committee’s

22 actions, relevant departmental regulations, and any documents attached to plaintiff’s appeal,

23 plaintiff’s housing history and past classification committee actions. (Id. at 2.) Defendant

24 Hinrichs states that custody staff do not have access to mental health or medical records, thus

25 defendant Hinrichs could not review those records. (Id.) Defendant Hinrichs states that in

26 addition, due to medical privacy laws, medical and mental health staff could only provide limited 27 information to custody staff, which would usually be reflected in a mental and/or mental health

28 chrono in the inmate’s central file. (Id.) If a medical or mental health clinician believed a single 29 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 30 of 40

1 cell was required by an inmate’s medical or mental health condition, that would be reflected on a

2 chrono in the central file. (Id.)

3 Defendant Hinrichs states that as reflected in his first level response to plaintiff’s

4 grievance, defendant Hinrichs’s review of plaintiff’s records reflected that all committees had

5 double-celled plaintiff throughout his incarceration with CDCR. (Id.) No mental health clinician

6 had placed plaintiff on single-cell status and the October 1, 2011 document plaintiff provided did

7 not indicate that the clinician wanted him single-celled. (Id.) In addition, as part of defendant

8 Hinrichs’s review of plaintiff’s appeal, defendant Hinrichs contacted mental health staff to review

9 plaintiff’s health records regarding single-cell status. (Id. 2-3.) Mental health staff reported to

10 defendant Hinrichs that on plaintiff’s most recent treatment plan, no recommendation for housing

11 was marked and there was no mention of single-cell in recent notes or treatment. (Id. at 3.)

12 Therefore, no mental health clinician had recommended that plaintiff be single celled or excluded

13 from side-by-side cells when defendant Hinrichs reviewed plaintiff’s grievance in September

14 2013. (Id.)

15 On November 6, 2013, defendant Virga denied grievance no. SAC-S-13-02151 at the

16 second level of review. (ECF No. 80-8 at 8.) Defendant Lynch was designated by defendant

17 Virga to conduct an inquiry into plaintiff’s grievance. (Id.) In his declaration submitted in

18 support of the summary judgment motion, defendant Lynch states that when he was assigned

19 plaintiff’s appeal for review, he determined that the First Level of Review had conducted an

20 appropriate review and that the decision to classify plaintiff as double-celled was appropriate 21 based on the factors provided in CDCR regulations. (Id. at 2.)

22 Defendant Lynch states that as reflected in the Second Level response, a review of

23 plaintiff’s records reflected that all committees had double-celled plaintiff throughout his

24 incarceration at CDCR. (Id.) Defendant Lynch states that no mental health clinician had placed

25 plaintiff on single-cell status or recommended that plaintiff be single-celled or excluded from

26 side-by-side cells when defendant Lynch reviewed plaintiff’s grievance in November 2013. (Id.) 27 Defendant Lynch states, “Accordingly, there was nothing to indicate that any recommendation to

28 single-cell [plaintiff] for mental health reasons had been ignored by either the classification 30 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 31 of 40

1 committee or the First Level Reviewer.” (Id.)

2 In his declaration, defendant Virga states that as indicated in the second level response, he

3 reviewed and signed it. (ECF No. 80-7 at 3.) Defendant Virga states that at the second level, he

4 determined that the first level had conducted an appropriate review and that the decision to

5 classify plaintiff as double-celled was appropriate based on the factors provided in CDCR

6 regulations. (Id.) Defendant Virga states that as reflected in the second level response, a review

7 of plaintiff’s records reflected that all committees had double-celled plaintiff throughout his

8 incarceration with CDCR. (Id.) No mental health clinician had placed plaintiff on single-cell

9 status or recommended that plaintiff be single-celled or excluded from side-by-side cells when he

10 reviewed plaintiff’s grievance in November 2013. (Id.) Defendant Virga states, “Accordingly,

11 there was nothing to indicate that any recommendation to single-cell [plaintiff] for mental health

12 reasons had been ignored by either the classification committee or the first level reviewer.” (Id.)

13 Defendants argue that defendants Hinrichs, Virga and Lynch did not act with deliberate

14 indifference when they denied plaintiff’s grievances requesting single cell status because at the

15 time they denied these grievances, plaintiff’s records contained no recommendations from mental

16 health clinicians that plaintiff receive single-cell status.

17 Plaintiff’s Opposition

18 In his opposition, plaintiff argues that defendants Virga, Lynch and Hinrichs disregarded

19 evidence that plaintiff was severely mentally ill at the time they denied his grievances. (ECF No.

20 84 at 7.) In support of this argument, plaintiff alleges that defendant Virga, as the Warden, had 21 received written notification that plaintiff was to be involuntarily medicated due to his mental

22 illness. (Id.) Plaintiff refers to an exhibit attached to his amended complaint. (Id.) It appears

23 that plaintiff is referring to an exhibit attached to his amended complaint filed September 1, 2017,

24 rather than the operative amended complaint filed September 5, 2017.

25 Attached to plaintiff’s September 1, 2017 amended complaint is an order for plaintiff to be

26 involuntarily medicated, dated July 3, 2013. (ECF No. 12 at 68-77.) The order states that 27 plaintiff suffers from “bipolar mood disorder severe depression.” (Id. at 68.) The report finds

28 that plaintiff is a danger to himself. (Id.) The report states, 31 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 32 of 40

1 The patient was admitted to the CTC because of suicidal intent. He stated he plans to starve himself to death. He has not eaten in nine 2 days. He refused to take mediation, saying that they make him feel worse. He lies in his bed, has refused to come to the door to even talk 3 about this.

4 (Id.)

5 The report states that plaintiff, “is in a severe depressive state where he feels hopeless. He

6 is immersed in perceiving only the difficulties in his life, the only answer to which is to die.” (Id.

7 at 69.) The report states that the likely harm plaintiff would suffer if not placed on psychiatric

8 medication would be “continued suicidal ideation, continued refusal to eat because of his stated

9 goal to starve himself to death. Organ damage can occur from such prolonged starvation.” (Id. at

10 71.) The report also states that plaintiff was recently hospitalized twice in the Mental Health

11 Crisis Bed Unit for suicidal ideation. (Id. at 70.) The report also states that plaintiff was not

12 competent to consider treatment. (Id. at 73.) The report states, “He has no understanding of the

13 nature of depression and how it affects one’s judgement. He has no understanding of the role of

14 medication in treating this depression.” (Id. at 73.)

15 Attached to plaintiff’s September 1, 2017 amended complaint is an “Interdisciplinary

16 Progress Note-General Psychiatry,” dated October 27, 2014. (Id. at 81.) This progress note

17 describes plaintiff’s mood as “dysphoric,” plaintiff’s affect as “labile,” and plaintiff’s insight and

18 judgment as “impaired.” (Id.)

19 Plaintiff also argues that the suicide risk evaluation by Dr. Grosse and Dr. Bowerman

20 alerted defendants to plaintiff’s mental health problems. (Id.) A report by Psychologist

21 Bowerman, dated September 30, 2011, is attached to the amended complaint filed September 1,

22 2011. (ECF No. 12 at 44.) This report states that plaintiff was seen for supporting/evaluative

23 session. (Id.) Plaintiff was currently on suicide precautions status and housed in AZZ-alternative

24 housing. (Id.) Plaintiff stated that he was upset about being repeatedly moved to unacceptable

25 cells or with inmates he could not reside with. (Id.) This report contains no recommendation for

26 single cell status. (Id.)

27 Also attached to the September 1, 2011 amended complaint is a progress note dated

28 October 1, 2011. (Id. at 46.) This note states that plaintiff reported that he had several cellies 32 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 33 of 40

1 over the last many months, and the layout of his cell is such that both beds are in close proximity,

2 causing plaintiff panic attacks and anxiety. (Id.) Plaintiff states that he has asked custody to

3 please be housed in one of the other cells where there are bunk beds or another arrangement that

4 will not trigger his anxiety. (Id.) The progress note states, “After discussing with the I/P

5 different approaches to trying to effect a change in cells, he agreed to go back to his housing and

6 talk to custody once more calmly about this request. This clinician will also write a

7 recommendation to that effect in the discharge orders. It was stressed to I/P that the decision to

8 change housing is solely in the discretion of custody.” (Id.)

9 The undersigned cannot locate in the court record any note by a clinician recommending a

10 change in plaintiff’s housing status following issuance of October 1, 2011 progress note.

11 Plaintiff argues that in 2004, a mental health clinician recommended that he receive

12 single-cell status. (ECF No. 84 at 14.) Plaintiff attaches to his opposition a medical record dated

13 January 23, 2004 by Dr. Dias referring plaintiff for evaluation for single-cell status. (Id. at 47.)

14 In the opposition, and in the operative amended complaint, plaintiff also alleges that

15 defendants denied his request for single-cell housing pursuant to a policy that did not require

16 prison officials to consider inmate mental health in making housing decisions. (ECF No. 84 at 8,

17 14.) In support of this argument, plaintiff cites a January 19, 2016 memorandum issued by

18 former CDCR Secretary Kernan addressed to Associate Directors, Divisions of Adult Institutions

19 and Wardens. (ECF No. 80-4 at 97.) This memorandum states, in relevant part,

20 This memorandum reiterates and clarifies the obligations of staff to consider the vulnerability of inmates with medical, mental health 21 condition or developmental disabilities when determining whether to grant single-cell status under the California Department of 22 Corrections and Rehabilitation’s Department Operation Manual (DOM), Chapter 5, Article 46—Inmate Housing Assignments (IHA). 23

24 (Id. at 97.)

25 The memorandum states that an inmate with a medical, mental health condition or

26 developmental disabilities may be so severely disabled they cannot reasonably protect themselves 27 if physically threatened, or may have a condition or disability which increases their vulnerability

28 to attack, threats, or extortion by a cell partner. (Id.) The memorandum states that it is not 33 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 34 of 40

1 necessary that an inmate also demonstrate a history of in cell abuse in order to be approved for

2 single-cell status. (Id.)

3 The memorandum sets forth examples of inmates who should be considered for single-cell

4 status, or other appropriate housing. (Id. at 98.) This includes inmates with mental health

5 conditions that lead to bizarre or disruptive behavior, or psychotic episodes which may increase

6 their vulnerability to attack, threats or extortion by a cell partner. (Id.)

7 The memorandum states that if there is a question whether a medical or mental health

8 condition is present, and consultation with medical or mental health staff is required, custodial

9 staff shall submit a request for review and recommendations related to single-cell consideration.

10 (Id.) The memorandum states that the screening authority should consider the recommendations

11 of medical and mental health staff regarding the most appropriate housing for the inmate given

12 the vulnerability that may be created by their medical or mental health conditions. (Id.)

13 Plaintiff argues that the January 19, 2016 memorandum was issued because prison

14 officials, like defendants, failed to consider inmate mental health when considering whether

15 inmates qualified for single-cell status.

16 Discussion

17 At the outset, the undersigned clarifies that plaintiff’s claims against defendants Virga,

18 Hinrichs and Lynch are based on their denials of grievance no. SAC-13-02151. (See Plaintiff’s

19 deposition at 18, 53-56). Plaintiff alleges that defendants’ denials of grievance no. SAC-13-

20 02151, denying his request for single-cell status and upholding the July 3, 2013 ICC decision to 21 double-cell plaintiff, violated his Eighth Amendment rights because defendants enforced a policy

22 which failed to consider inmate mental health when determining cell status.

23 In the summary judgment motion, defendants do not directly address plaintiff’s claim that

24 they enforced a policy of failing to consider inmate mental health when determining cell status at

25 the time they denied his grievances. Instead, they argue that they considered plaintiff’s mental

26 health when denying his grievances requesting single-cell status. 27 For the reason discussed herein, the undersigned first finds that plaintiff’s claim that in

28 2013, a policy existed that permitted prison officials to disregard inmate mental health when 34 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 35 of 40

1 making housing decisions is without merit.

2 Section 54046.8 of the California Department of Corrections and Rehabilitation

3 Department Operations Manual (“DOM”) provides criteria for Single-Cell status. This section

4 states in relevant part, that single-cell status shall be considered for those inmates who

5 demonstrate a history of in-cell abuse, significant in-cell violence towards a partner, verification

6 of predatory behavior towards a cell partner, or who have been victimized in-cell by another

7 inmate. DOM, Article 5, § 54046.8 (2012).

8 DOM Section 54046.10 addresses recommendations for single-cells status due to mental

9 health concerns:

10 In cases where single-cell status is recommended by clinical staff due to mental health or medical concerns, a classification committee shall 11 make the final determination of an inmate’s cell assignment. The classification committee shall consider the clinical recommendations 12 made by the evaluating clinician with assistance from the clinician who participates in the committee and review the inmate’s case 13 factors when determining the housing assignment. Single-cell status based upon clinical recommendation is usually a temporary short- 14 term measure and must be periodically reviewed… 15 DOM, Article 5, § 54046.10 (2012).

16 DOM Sections 54046.8 and 54046.10 were in effect in 2013.

17 DOM § 54046.10 specifically provides that the ICC shall consider recommendations by

18 clinical staff for single-cell status due to mental health concerns. Therefore, at the time

19 defendants denied plaintiff’s grievances, the regulations permitted the ICC to consider inmate

20 mental health if clinical staff had made a recommendation for single-cell status. 21 In his opposition, plaintiff argues that former Secretary Kernan issued the January 19,

22 2016 memorandum because CDCR had a policy to disregard inmate mental health when making

23 housing assignments. However, in the January 19, 2016 memorandum, former Secretary Kernan

24 expanded the circumstances under which custody staff could consider inmate mental health when

25 making housing decisions, beyond consideration of recommendations from mental health staff as

26 provided for in DOM § 54046.10. Former Secretary Kernan created a new policy pursuant to 27 which custody staff were required to submit requests for review of single-cell consideration when

28 they had a question regarding whether a medical or mental health condition was present 35 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 36 of 40

1 warranting single-cell housing. This policy was not in effect at the time defendants considered

2 grievance no. SAC-S-13-02151. (See ECF No. 80-6 at 3 (defendant Hinrichs’s declaration: “The

3 January 19, 2016 memorandum Coleman has referenced in this action could not have applied to

4 my review of the appeal because the appeal was submitted and decided in 2013.”)

5 The January 19, 2016 memorandum suggests that the procedures contained in DOM

6 § 54046.10 did not provide for adequate consideration of inmate mental health by custody staff

7 when making housing decisions. However, the undersigned does not find that this memorandum

8 demonstrates that prior to January 19, 2016, CDCR had a policy to disregard inmate mental

9 health when making housing decisions, as alleged by plaintiff.

10 The undersigned next considers whether defendants properly considered plaintiff’s mental

11 health when they denied plaintiff’s request for single-cell status and upheld the July 3, 2013 ICC

12 decision finding plaintiff eligible for double-celling.

13 The undersigned is puzzled by the July 3, 2013 ICC’s failure to acknowledge plaintiff’s

14 mental decompensation occurring at that time. As discussed above, plaintiff has provided

15 evidence that on July 3, 2013, an order was issued for plaintiff to be involuntarily medicated. The

16 order stated that plaintiff was in the CTC, i.e., Correctional Treatment Center, because of suicidal

17 ideation. Therefore, plaintiff did not “refuse” to appear at the July 3, 2013 classification

18 committee hearing, as stated by defendant Virga in his declaration and in the Classification

19 Committee Summary. Although the ICC report states that a treating clinician presented the ICC

20 with a Mental Health Assessment, the report suggests that the ICC was unaware of plaintiff’s 21 mental state on the date of the hearing.

22 Nevertheless, for the reasons stated herein, the undersigned finds that defendants did not

23 act with deliberate indifference when they denied grievance no. SAC-13-02151.

24 As stated above, defendants state that in reviewing grievance no. SAC-13-02151, they

25 reviewed the decision of the July 3, 2013 ICC to make sure all regulations were followed. While

26 the ICC report suggests that the committee was unaware of plaintiff’s mental state on the date of 27 the hearing, DOM § 54046.10 provides that single-cell status may be granted if there is a

28 recommendation from mental health staff. The record contains no evidence demonstrating that 36 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 37 of 40

1 mental health staff had recommended single-cell status for plaintiff at the time of the July 3, 2013

2 ICC hearing or at the times defendants reviewed plaintiff’s grievances.

3 Plaintiff’s evidence that a mental health clinician recommended that he receive single-cell

4 status in 2004 does not demonstrate that he required single-cell status in 2013. While plaintiff

5 provided an October 2, 2011 progress note stating that the clinician would write a

6 recommendation for plaintiff to be housed in a cell with bunk beds or “another arrangement” that

7 would not trigger plaintiff’s anxiety caused by housing in a cell with side-by-side beds, there is no

8 evidence that this recommendation was ever made.

9 Defendant Hinrichs denied plaintiff’s grievance on the grounds that there was no chrono

10 in plaintiff’s file for single-cell status. Defendant Hinrichs also stated that in reviewing plaintiff’s

11 grievance in September 2013, he contacted mental health staff to review plaintiff’s records

12 regarding single-cell status and they reported that on plaintiff’s “most recent treatment plan” “no

13 recommendation” for housing was marked and there was no mention of single-cell in recent notes

14 or treatment. This record demonstrates that defendant Hinrichs, a custody official, upheld the

15 July 3, 2013 ICC decision finding plaintiff suitable for double-cell status, and denied plaintiff’s

16 request for single-cell status, because he could not find any recommendation from clinical staff

17 for plaintiff to have single-cell status. Based on this evidence, the undersigned finds that

18 defendant Hinrichs did not act with deliberate indifference to plaintiff’s mental health needs when

19 he denied grievance no. SAC-13-02151. Accordingly, defendant Hinrichs should be granted

20 summary judgment as to this claim. 21 As discussed above, when defendant Lynch reviewed plaintiffs’ second level appeal in

22 October 2013, he found that no mental health clinician had recommended that plaintiff have

23 single-cells status for mental health reasons. He also reviewed defendant Hinrichs’s response to

24 the first level grievance, which stated that defendant Hinrichs contacted mental health staff who

25 reported that there was no recommendation for single-cell status. Based on this information, the

26 undersigned does not find that defendant Lynch acted with deliberate indifference to plaintiff’s 27 mental health needs when he prepared the proposed decision denying plaintiff’s second level

28 grievance no. SAC-13-02151. 37 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 38 of 40

1 In his declaration, defendant Virga states that he denied plaintiff’s second level grievance

2 based on the proposed decision submitted to him by defendant Lynch. The undersigned finds that

3 defendant Virga did not act with deliberate indifference when he adopted the proposed decision

4 submitted to him by defendant Lynch because the proposed decision stated that no mental health

5 staff recommended plaintiff for single-cell status.

6 Accordingly, for the reasons discussed above, the undersigned recommends that

7 defendants Hinrichs, Lynch and Virga be granted summary judgment as to plaintiff’s Eighth

8 Amendment claim.

9 G. Qualified Immunity

10 Defendants Hinrichs, Lynch and Virga also move for summary judgment on the grounds

11 that they are entitled to qualified immunity.

12 In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-pronged test to

13 determine whether qualified immunity exists. First, the court asks: “Taken in the light most

14 favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated

15 a constitutional right?” Id. at 201. If “a violation could be made out on a favorable view of the

16 parties’ submissions, the next, sequential step is to ask whether the right was clearly established.”

17 Id. To be “clearly established,” “[t]he contours of the right must be sufficiently clear that a

18 reasonable official would understand that what he is doing violates that right.” Id. at 202 (internal

19 quotation marks and citation omitted). Accordingly, for the purposes of the second prong, the

20 dispositive inquiry “is whether it would be clear to a reasonable officer that his conduct was 21 unlawful in the situation he confronted.” Id. Courts have the discretion to decide which prong to

22 address first, in light of the particular circumstances of each case. See Pearson v. Callahan, 555

23 U.S. 223, 236 (2009).

24 As for the first prong of the qualified immunity analysis, for the reasons discussed above,

25 the undersigned finds that defendants Hinrichs, Lynch and Virga did not violate plaintiff’s Eighth

26 Amendment rights when they denied plaintiff’s grievance. 27 For the following reasons, the undersigned also finds that defendants are entitled to

28 qualified immunity as to the second prong of the qualified immunity analysis. As stated above, at 38 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 39 of 40

1 the time defendants denied plaintiff’s grievance, DOM § 54046.10 provided that single-cell status

2 may be granted if there is a recommendation from mental health staff. Defendants denied

3 plaintiff’s grievances on the grounds that no mental health staff had recommended single-cell

4 status for plaintiff. Thus, it is clear that defendants relied on this regulation when denying

5 plaintiff’s grievance.

6 Plaintiff may be arguing that defendants should have asked mental health staff to evaluate

7 his request for single-cell status, or asked the ICC to submit such a request, as suggested by the

8 2016 memorandum. However, at the time defendants reviewed plaintiff’s grievance in 2013,

9 DOM § 54046.10 provided for single-cell status if there was a recommendation by mental health

10 staff. In other words, DOM § 54046.10 did not require custody staff to request mental health

11 staff to evaluate an inmate for single-cell status.

12 The undersigned finds that defendants reasonably relied on DOM § 54046.10 when they

13 denied plaintiff’s request for single-cell status in 2013 and upheld the July 3, 2013 ICC decision

14 finding plaintiff eligible for double-cells status. In other words, it would not have been clear to

15 reasonable correctional staff in 2013 that reliance on the procedures set forth in § 54046.10 for

16 evaluating requests for single-cell status was unlawful. On these grounds, defendants Hinrichs,

17 Lynch and Virga are entitled to qualified immunity.

18 H. Plaintiff’s Eighth Amendment Claim Against Defendant Haring

19 Defendants move for summary judgment on the grounds that defendant Haring did not

20 violate plaintiff’s Eighth Amendment rights when he refused to move plaintiff from the cell with 21 side-by-side beds in September 2011. As discussed, the undersigned recommends that defendant

22 Haring be granted summary judgment as to this claim on the grounds that it is barred by the

23 statute of limitations and on the grounds that plaintiff released this claim in the settlement

24 agreement reached in Coleman v. CDCR, 2: 13-cv-1021 JAM KJN P (E.D.). For these reasons,

25 the undersigned need not consider whether defendant Haring violated plaintiff’s Eighth

26 Amendment rights. 27 ////

28 //// 39 Case 2:17-cv-00851-KJM-KJN Document 98 Filed 01/11/21 Page 40 of 40

1 Accordingly, IT IS HEREBY ORDERED that:

2 1. Defendants’ motion to strike plaintiff’s sur-reply (ECF No. 90) is granted, except for

3 plaintiff’s declaration attached to the sur-reply;

4 2. Plaintiff’s motion for sanctions, motion for appointment of counsel and motion for

5 appointment of an expert witness (ECF No. 92) are denied;

6 3. Plaintiff’s supplemental motion for sanctions (ECF No. 93) is denied;

7 4. Plaintiff’s motion to amend the evidence (ECF No. 94) is denied; and

8 IT IS HEREBY RECOMMENDED that:

9 1. Plaintiff’s cross-motion for summary judgment (ECF No. 84) be stricken as untimely;

10 2. Defendants’ summary judgment motion (ECF No. 80) be granted.

11 These findings and recommendations are submitted to the United States District Judge

12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

13 after being served with these findings and recommendations, any party may file written

14 objections with the court and serve a copy on all parties. Such a document should be captioned

15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

16 objections shall be filed and served within fourteen days after service of the objections. The

17 parties are advised that failure to file objections within the specified time may waive the right to

18 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

19 Dated: January 8, 2021

20 21

25 Cole851.57 26 27

28 40