(PC) Mitchell v. Gonzales

District Court, E.D. California·Decided June 5, 2025·No. 1:23-cv-00062·Unknown

Opinion

JOHN EDWARD PLAINTIFF, No. 1:23-cv-00062-SAB (PC) Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF C. GONZALES, et al., DEFENDANTS Defendants. (ECF No. 47) Plaintiff John Edward Plaintiff is proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Both parties consented to United States Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (ECF No. 25.) Currently before the Court is Defendants’ motion for summary judgment, filed November 15, 2024. (ECF No. 47.) I. This action proceeds on Plaintiff’s First Amendment expression-of-speech claim against Defendants correctional counselors Gonzales and Leyva. Defendants filed an answer to the operative complaint on November 29, 2023. (ECF No. 32.) On January 4, 2024, the Court issued the discovery and scheduling order. (ECF No. 36.) Defendants filed the instant motion for summary judgment on November 15, 2024. (ECF No. 47.) Plaintiff filed an opposition on January 21, 2025 and supplemental opposition on January 22, 2025. (ECF Nos. 53, 54.) After receiving an extension of time, Defendants filed a reply on March 14, 2025. (ECF No. 58.) Plaintiff filed a sur-reply on March 31, 2025.1 (ECF No. 59.) II. A. Summary Judgment Standard Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

1 Neither the Federal Rules of Civil Procedure, nor the Local Rules for the Eastern District of California permit the filing of a sur-reply as a matter of right. See Garcia v. Biter, 195 F.Supp.3d at 1131 (E.D. Ca. July 18, 2016) (noting the plaintiff did not have a right to file a sur-reply under the local rules or under the Federal Rules of Civil Procedure). Courts, however, have discretion to permit, or preclude, a sur-reply. Id. at 1133 (citations omitted); see also U.S. ex rel. Meyer v. Horizon Health Corp., 565 F. 3d 1195, 1203 (9th Cir. 2009) (holding that district court did not abuse discretion in refusing to permit “inequitable sur-reply”). A district court may allow a sur-reply to be filed where there is a valid reason for such additional briefing, such as to prevent unfair prejudice. Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. 2005). “In this Circuit, courts are required to afford pro se litigants additional leniency.” Hester v. Clendenin, 2022 WL 2541632, at *2 (E.D. Cal. Jul. 7, 2022) (citing Wilhelm v. Rotman, 680 F.3dd 1113, 1121 (9th Cir. 2012). While Plaintiff did not first seek leave from the Court to file a sur-reply, the Court will not strike it given Plaintiff’s pro se status and it is only 4 pages in length. See U.S. Equal Employment Opportunity Commission v. Sunshine Raisin Corporation, 2023 WL 4352426 (E.D. Cal. Jun. 13, 2023) (denying motion to strike reply because it exceeded page limits set by the court’s case management and scheduling order) (citation omitted). In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted). A. Summary of Plaintiff’s Complaint On November 3, 2019, Plaintiff sent a staff complaint, KVSP-0-19-04219 (4219) to the Kern Valley State Prison (KVSP) appeals office. On November 5, 2019, Defendant C. Gonzales returned appeal KVSP 4219 instructing Plaintiff to remove the allegation of retaliation for the appeal to be processed. On November 7, 2019, Plaintiff returned KVSP 4219 after he removed the word “retaliation.” On November 14, 2019, Plaintiff sent a complaint against T. Rodriguez for retaliation. On November 18, 2019, C. Gonzales canceled the appeal by way of appeal KVSP-0-19- 4360 (4360). On November 27, 2019, Plaintiff resubmitted KVSP 4360 and it was canceled (erroneously) as duplicative of KVSP 4219. On December 20, 2019, Plaintiff appealed the cancellation of KVSP 4360, which was canceled by C. Gonzalez on December 26, 2019 by way of appeal KVSP-0-19-04814. On December 23, 2019, Plaintiff resubmitted KVSP 4219 for the second level review. A. Leyva returned the appeal as canceled instructing Plaintiff to remove the retaliation allegation before the appeal could be processed. On January 21, 2020, Plaintiff submitted an inmate request for interview. On or about January 22, 2020, Plaintiff submitted a staff complaint against appeals coordinators A. Leyva and C. Gonzalez. On January 24, 2020, C. Gonzalez canceled appeal KVSP-0-20-00277 (KVSP 0277) instructing to remove the word retaliation. On or about January 29, 2020, Plaintiff returned KVSP 0277 to Chief of Appeals R Diaz giving notice that KVSP appeals coordinators were interfering with Plaintiff’s attempt to file a complaint for retaliation against them. On February 10, 2020, the Office of Appeals acknowledged receipt of KVSP 0277. On February 24, 2020, A. Leyva responded to KVSP 00277 against Leyva instructing Plaintiff to follow instructions on CDC 695 form dated January 24, 2020 for further processing wherein it instructed removal of the word retaliation. On February 26, 2020, Plaintiff sent KVSP 00277 for third level review, and it was again returned to Plaintiff to follow instructions. Plaintiff resubmitted the appeal on April 28, 2020, but it was returned on May 13, 2020 by A. Leyva stating, “Be advised that these documents are being returned to you as they are not an appeal.” On or about May 13, 2020, Plaintiff returned the staff complaint against the appeals coordinators. On June 5, 2020, he received a response from C. Gonzalez, which stated to remove the word retaliation. Defendants C. Gonzalez and A. Leyva acting as appeals coordinators refused to process grievances that did not conform to their person

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