1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY PENTON, No. 2:11-cv-0518 TLN KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 L. JOHNSON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding through counsel. Plaintiff’s motion to certify 18 defendant’s interlocutory appeal as frivolous is before the court. As set forth below, the 19 undersigned recommends that plaintiff’s motion be granted. 20 Governing Standards 21 Under 28 U.S.C. § 1291, “circuit courts generally lack jurisdiction to hear interlocutory 22 appeals from the denial of summary judgement.” Centeno v. City of Fresno, 2018 WL 1305764, 23 at *1 (E.D. Cal. Mar. 13, 2018). But if the movant was denied summary judgement on qualified 24 immunity grounds, there is an exception. Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 25 944 (9th Cir. 2017) (citation omitted). Such exception exists because qualified immunity is “an 26 immunity from suit rather than a mere defense to liability; and like absolute immunity, it is 27 effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 28 511, 512 (1985). As a result, a circuit court has jurisdiction over an interlocutory appeal to 1 “review a denial of qualified immunity where a defendant argues . . . that the facts, even when 2 considered in the light most favorable to the plaintiff, show no violation of a constitutional right, 3 or no violation of a right that is clearly established in law.” Isayeva, 872 F.3d at 945. Therefore, 4 to present a reviewable issue with respect to qualified immunity on interlocutory appeal, “[t]he 5 officials must present the appellate court with a legal issue that does not require the court to 6 consider the correctness of the plaintiff’s version of the facts. . . .” Cunningham v. City of 7 Wenatchee, 345 F.3d 802, 807 (9th Cir. 2003) (internal quotations and citations omitted). 8 Usually an interlocutory appeal of an order denying qualified immunity on summary 9 judgment “divests the district court of jurisdiction to proceed with trial, unless the district court 10 certifies in writing that the appeal is frivolous, in which case it may proceed with trial.” Centeno, 11 2018 WL 1305764, at *1 (quoting Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992)). “An 12 appeal is frivolous if the results are obvious, or the arguments are wholly without merit.” Id. 13 (quoting U.S. v. Kitsap Physicians Serv., 314 F.3d 995, 1003 n.3 (9th Cir. 2002)) (citations 14 omitted). Specifically, “the appeal must be so baseless that it does not invoke appellate 15 jurisdiction such as when the disposition is so plainly correct that nothing can be said on the other 16 side.” Schering Corp. v. First DataBank, Inc., 2007 WL 1747115, at *3 (N.D. Cal. June 18, 17 2007) (internal quotations and citation omitted). 18 The Parties’ Positions 19 Plaintiff’s Motion 20 Plaintiff seeks an order certifying that defendant Johnson’s interlocutory appeal is 21 frivolous, arguing as follows. Because the court’s order denying summary judgment on qualified 22 immunity is premised on disputed material facts, the issue is not immediately appealable. (ECF 23 No. 283 at 3.) This case is similar to Evans v. City of Vallejo, No. 2:17-cv-1619 TLN AC, 2022 24 WL 2160463 (E.D. Cal. June 15, 2022), where the district court certified defendants’ appeal as 25 frivolous based on conflicting versions of one of the defendant’s conduct, finding “factual issues 26 genuinely in dispute preclude[d] summary adjudication of the qualified immunity defense.” Id. at 27 *3. In support, plaintiff cites this court’s finding that “there are material disputes of fact as to the 28 culpability of defendant Johnson as to all three claims.” (ECF No. 256 at 47:7-8.) Specifically, 1 plaintiff points to the following conflicting facts, as identified by this court: 2 Defendant presented evidence that plaintiff’s mail could not be forwarded and notice could not be provided because the mailroom 3 did not have plaintiff’s address, defendant did not handle or process plaintiff’s mail and did not know plaintiff was out to court or that his 4 mail had been held for over seven months. Defendant Johnson also testified that defendant Nunez should not have held plaintiff’s mail 5 for so long, but should have found out where plaintiff was housed while out to court. 6 7 (ECF No. 256 at 47:8-14.) 8 [P]laintiff adduced evidence that it was defendant Johnson’s ongoing and intentional practice of holding mail for inmates who were out to 9 court that directly caused the accumulation of plaintiff’s mail for over seven months, and that such practice violated Title 15 10 regulations requiring that mail be “immediately” forwarded to inmates who are transferred away from the facility. Plaintiff also 11 presented evidence that it was defendant Johnson’s responsibility, as mailroom supervisor, to ensure that plaintiff’s mail was forwarded to 12 him while he was out to court. 13 (ECF No. 256 at 47:14-20.) In light of these conflicting facts, defendant Johnson cannot 14 challenge such factual assertions through an interlocutory appeal, and this court should certify 15 that the appeal is frivolous. (ECF No. 283 at 4.) 16 In addition, plaintiff will be unduly prejudiced if trial is delayed until after the appeal; the 17 Ninth Circuit has noted district courts have the power to certify interlocutory qualified immunity 18 appeals as frivolous because of concerns about disrupting and delaying trial court proceedings. 19 (ECF No. 283 at 5, citing Chuman, 960 F.2d at 105.) According to the Ninth Circuit’s website, 20 oral argument on appeals typically occur between 12 and 20 months after a notice of appeal is 21 filed; thereafter, the appellate court’s opinion issues anywhere between 1.5 and 3 years later. 22 (ECF No. 283 at 5.) Such additional delay is unduly prejudicial to plaintiff, who filed this action 23 over ten years ago. Aside from expending time and resources at the appellate court, such 24 “frivolous appeal will negatively impact the ability of witnesses to recall pertinent facts at the 25 trial, would reduce the value of [plaintiff’s] remedies when considering the time value of the 26 delay in trial, and would controvert the public interest in judicial economy and efficient resolution 27 of litigation.” (ECF No. 283 at 5.) 28 //// 1 Defendant Johnson’s Opposition 2 In opposition, defendant argues that the appeal is not frivolous because the appeal does 3 not challenge the factual disputes set forth by plaintiff. Rather, defendant’s appeal is based on an 4 argument that the district court misapplied the law with respect to qualified immunity. Even 5 assuming plaintiff’s factual assertions are true, there is no clearly established law that put 6 defendant on notice that more or different actions were required because it is undisputed that 7 plaintiff was temporarily “out to court,” defendant did not know when plaintiff was to return, and 8 the mailroom computer did not provide plaintiff’s interim location. Moreover, even assuming 9 defendant Johnson’s practice related to out to court inmate mail violated Title 15 and as 10 supervisor defendant was responsible to forward mail, there is no clearly established law to put 11 defendant on notice that such actions or omissions violated the Constitution.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY PENTON, No. 2:11-cv-0518 TLN KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 L. JOHNSON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding through counsel. Plaintiff’s motion to certify 18 defendant’s interlocutory appeal as frivolous is before the court. As set forth below, the 19 undersigned recommends that plaintiff’s motion be granted. 20 Governing Standards 21 Under 28 U.S.C. § 1291, “circuit courts generally lack jurisdiction to hear interlocutory 22 appeals from the denial of summary judgement.” Centeno v. City of Fresno, 2018 WL 1305764, 23 at *1 (E.D. Cal. Mar. 13, 2018). But if the movant was denied summary judgement on qualified 24 immunity grounds, there is an exception. Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 25 944 (9th Cir. 2017) (citation omitted). Such exception exists because qualified immunity is “an 26 immunity from suit rather than a mere defense to liability; and like absolute immunity, it is 27 effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 28 511, 512 (1985). As a result, a circuit court has jurisdiction over an interlocutory appeal to 1 “review a denial of qualified immunity where a defendant argues . . . that the facts, even when 2 considered in the light most favorable to the plaintiff, show no violation of a constitutional right, 3 or no violation of a right that is clearly established in law.” Isayeva, 872 F.3d at 945. Therefore, 4 to present a reviewable issue with respect to qualified immunity on interlocutory appeal, “[t]he 5 officials must present the appellate court with a legal issue that does not require the court to 6 consider the correctness of the plaintiff’s version of the facts. . . .” Cunningham v. City of 7 Wenatchee, 345 F.3d 802, 807 (9th Cir. 2003) (internal quotations and citations omitted). 8 Usually an interlocutory appeal of an order denying qualified immunity on summary 9 judgment “divests the district court of jurisdiction to proceed with trial, unless the district court 10 certifies in writing that the appeal is frivolous, in which case it may proceed with trial.” Centeno, 11 2018 WL 1305764, at *1 (quoting Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992)). “An 12 appeal is frivolous if the results are obvious, or the arguments are wholly without merit.” Id. 13 (quoting U.S. v. Kitsap Physicians Serv., 314 F.3d 995, 1003 n.3 (9th Cir. 2002)) (citations 14 omitted). Specifically, “the appeal must be so baseless that it does not invoke appellate 15 jurisdiction such as when the disposition is so plainly correct that nothing can be said on the other 16 side.” Schering Corp. v. First DataBank, Inc., 2007 WL 1747115, at *3 (N.D. Cal. June 18, 17 2007) (internal quotations and citation omitted). 18 The Parties’ Positions 19 Plaintiff’s Motion 20 Plaintiff seeks an order certifying that defendant Johnson’s interlocutory appeal is 21 frivolous, arguing as follows. Because the court’s order denying summary judgment on qualified 22 immunity is premised on disputed material facts, the issue is not immediately appealable. (ECF 23 No. 283 at 3.) This case is similar to Evans v. City of Vallejo, No. 2:17-cv-1619 TLN AC, 2022 24 WL 2160463 (E.D. Cal. June 15, 2022), where the district court certified defendants’ appeal as 25 frivolous based on conflicting versions of one of the defendant’s conduct, finding “factual issues 26 genuinely in dispute preclude[d] summary adjudication of the qualified immunity defense.” Id. at 27 *3. In support, plaintiff cites this court’s finding that “there are material disputes of fact as to the 28 culpability of defendant Johnson as to all three claims.” (ECF No. 256 at 47:7-8.) Specifically, 1 plaintiff points to the following conflicting facts, as identified by this court: 2 Defendant presented evidence that plaintiff’s mail could not be forwarded and notice could not be provided because the mailroom 3 did not have plaintiff’s address, defendant did not handle or process plaintiff’s mail and did not know plaintiff was out to court or that his 4 mail had been held for over seven months. Defendant Johnson also testified that defendant Nunez should not have held plaintiff’s mail 5 for so long, but should have found out where plaintiff was housed while out to court. 6 7 (ECF No. 256 at 47:8-14.) 8 [P]laintiff adduced evidence that it was defendant Johnson’s ongoing and intentional practice of holding mail for inmates who were out to 9 court that directly caused the accumulation of plaintiff’s mail for over seven months, and that such practice violated Title 15 10 regulations requiring that mail be “immediately” forwarded to inmates who are transferred away from the facility. Plaintiff also 11 presented evidence that it was defendant Johnson’s responsibility, as mailroom supervisor, to ensure that plaintiff’s mail was forwarded to 12 him while he was out to court. 13 (ECF No. 256 at 47:14-20.) In light of these conflicting facts, defendant Johnson cannot 14 challenge such factual assertions through an interlocutory appeal, and this court should certify 15 that the appeal is frivolous. (ECF No. 283 at 4.) 16 In addition, plaintiff will be unduly prejudiced if trial is delayed until after the appeal; the 17 Ninth Circuit has noted district courts have the power to certify interlocutory qualified immunity 18 appeals as frivolous because of concerns about disrupting and delaying trial court proceedings. 19 (ECF No. 283 at 5, citing Chuman, 960 F.2d at 105.) According to the Ninth Circuit’s website, 20 oral argument on appeals typically occur between 12 and 20 months after a notice of appeal is 21 filed; thereafter, the appellate court’s opinion issues anywhere between 1.5 and 3 years later. 22 (ECF No. 283 at 5.) Such additional delay is unduly prejudicial to plaintiff, who filed this action 23 over ten years ago. Aside from expending time and resources at the appellate court, such 24 “frivolous appeal will negatively impact the ability of witnesses to recall pertinent facts at the 25 trial, would reduce the value of [plaintiff’s] remedies when considering the time value of the 26 delay in trial, and would controvert the public interest in judicial economy and efficient resolution 27 of litigation.” (ECF No. 283 at 5.) 28 //// 1 Defendant Johnson’s Opposition 2 In opposition, defendant argues that the appeal is not frivolous because the appeal does 3 not challenge the factual disputes set forth by plaintiff. Rather, defendant’s appeal is based on an 4 argument that the district court misapplied the law with respect to qualified immunity. Even 5 assuming plaintiff’s factual assertions are true, there is no clearly established law that put 6 defendant on notice that more or different actions were required because it is undisputed that 7 plaintiff was temporarily “out to court,” defendant did not know when plaintiff was to return, and 8 the mailroom computer did not provide plaintiff’s interim location. Moreover, even assuming 9 defendant Johnson’s practice related to out to court inmate mail violated Title 15 and as 10 supervisor defendant was responsible to forward mail, there is no clearly established law to put 11 defendant on notice that such actions or omissions violated the Constitution. 12 Further, there is no clearly established law that sets forth “what a mailroom supervisor is 13 constitutionally required to do with inmate mail when (1) an inmate is out to court from his 14 permanent institution, and (2) the institution lacked readily ascertainable information about his 15 location.” (ECF No. 284 at 3, citing ECF No 256 at 14, 15, 17-18.) The lack of such applicable 16 case law is set forth in detail in Norton v. Hallock, 2018 U.S. Dist. LEXIS 185951, at *19, 2018 17 WL 5629345, at *5-6 (N.D. Cal. Oct. 29, 2018). Similarly, plaintiff failed to cite any authority in 18 opposition to summary judgment that squarely governed the set of facts at issue here -- none of 19 the cases cited discussed a mailroom supervisor’s constitutional obligations when an out to court 20 inmate receives mail and his current address is not readily ascertainable, or what steps are 21 required to determine the inmate’s whereabouts. Also, the district court failed to resolve the 22 questions of fact in plaintiff’s favor and then determine whether the law was so clearly 23 established that the defendant would know that his actions or omissions would violate the 24 Constitution. (ECF No. 284 at 3, citing Isayeva, 872 F.3d at 945-46.) “If it had, it would have 25 concluded that the law is not settled and there was no clear direction to guide defendant when 26 determining what investigation was required in order to avoid a constitutional violation.” (ECF 27 No. 284 at 3.) Thus, appellate review is appropriately sought. 28 //// 1 Finally, defendant contends plaintiff will not be unduly prejudiced by defendant’s appeal 2 because all relevant witnesses have been deposed, preserving their testimony for trial. On the 3 other hand, defendant will be prejudiced if the issue of qualified immunity is not decided on the 4 interlocutory appeal because it will deprive him of his immunity from trial. Mitchell, 472 U.S. at 5 526 (“the immunity is effectively lost if a case is erroneously permitted to go to trial.”). 6 Plaintiff’s Reply 7 First, plaintiff objects that defendant’s opposition fails to address key, material facts that 8 are in dispute, choosing instead to focus on only the very few facts on which the parties agree. 9 Plaintiff identifies disputes of fact that are not questions over whether defendant Johnson’s 10 conduct was reasonable under existing case law: 11 (1) was it Defendant Johnson’s “ongoing and intentional practice of holding mail” that directly caused the accumulation of Mr. Penton’s 12 mail for over seven months or was it Defendant Jolene Nunez’s responsibility as she “should have found out where [Mr. Penton] was 13 housed while out to court;” (2) was Mr. Penton’s mail withheld because Defendant Johnson’s practice violated Title 15 regulations 14 or could his mail “not be forwarded and notice could not be provided because the mailroom did not have [Mr. Penton]’s address;” and (3) 15 did Defendant Johnson’s mailroom policies ensure that Mr. Penton’s mail was not forwarded to him while he was out to court or does 16 Defendant Johnson lack culpability because he “did not know [Mr. Penton] was out to court.” 17 18 (ECF No. 286 at 2, quoting ECF No. 256 at 47:8-20.) Because such disputes involve defendant 19 Johnson’s specific conduct, plaintiff contends the district court’s order is not subject to an 20 interlocutory appeal. (ECF No. 286 at 3, citing Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 21 2009). 22 Second, plaintiff argues that defendant cannot provide any tenable basis to overturn the 23 district court’s decision, ignoring the cases cited by both plaintiff and the court concerning the 24 delivery of mail to prisoners, and “retreads” Norton, which was rejected by the district court. 25 (ECF No. 286 at 3, citing ECF No. 256 at 41:15 (“The undersigned is not persuaded that Norton, 26 2018 WL 5629345, is dispositive.”).) “Defendant Johnson’s narrow insistence that there must be 27 controlling authority that ‘squarely govern[s] the set of facts at issue here’ [ECF No. 284 at 3:9] 28 misconstrues the precise qualified immunity analysis required by the Supreme Court.” (ECF No. 1 286 at 3.) The Supreme Court does not require a plaintiff to find a case where the exact actions 2 taken by the defendant were found to violate the constitution; rather, it is only required “that ‘a 3 reasonable official would understand that what he is doing violates that right’ based on existing 4 case law.” (ECF No. 286 at 4, quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987). 5 Finally, plaintiff contends defendant failed to rebut the Ninth Circuit’s concern that if 6 district courts fail to check interlocutory appeals, “such appeals “could significantly disrupt and 7 delay trial court proceedings.” Chuman, 960 F.2d at 105. In addition, “live testimony better 8 enables the jury to adjudge the credibility of a witness and therefore to determine the weight and 9 import ascribed to the witness’s testimony.” Planned Parenthood of the Columbia/Willamette, 10 Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1118 (9th Cir. 2002). Plaintiff contends that if 11 trial is delayed for up to three years, witnesses could be difficult to locate and memories could 12 fade; such delay would unduly prejudice plaintiff. (ECF No. 286 at 5.) 13 Discussion 14 The undersigned is persuaded that defendant’s appeal is frivolous. Defendant attempts to 15 very narrowly define the specific context of this case for purposes of evaluating qualified 16 immunity. But such a narrow definition is inappropriate. See Ashcroft v. al-Kidd, 563 U.S. 731, 17 741 (2011) (“We do not require a case directly on point, but existing precedent must have placed 18 the statutory or constitutional question beyond debate.”) Gordon v. Cnty. of Orange, 6 F.4th 961, 19 969 (9th Cir. 2021) (“a regime under which rights are deemed clearly established only if the 20 precise fact pattern has already been condemned”). 21 It is clearly established law that prisoners have a right to receive mail, a right to access the 22 courts, and a right to notice if their mail is being withheld. Thornburgh v. Abbott, 490 U.S. 401, 23 407 (1989) (prisoners have a First Amendment right to send and receive mail); Lewis v. Casey, 24 518 U.S. 343, 346 (1996) (under the First and Fourteenth Amendments to the Constitution, state 25 prisoners have a right of access to the courts); Procunier v. Martinez, 416 U.S. 396, 417-18 26 (1974) (holding “that the decision to censor or withhold delivery of a particular letter must be 27 accompanied by minimum procedural safeguards.”); Frost v. Symington, 197 F.3d 348, 353-54 28 (9th Cir. 1999) (a prisoner “has a Fourteenth Amendment due process liberty interest in receiving 1 notice that his incoming mail is being withheld by prison authorities.”) Before the court is able to 2 identify the contours of all three of plaintiff’s claims for purposes of qualified immunity, there are 3 material disputes of fact as to the culpability of defendant Johnson in his role as mailroom 4 supervisor that the jury must determine before the court can rule on qualified immunity. 5 As argued by plaintiff, this court already identified such clearly established law in 6 evaluating all three of plaintiff’s claims (ECF No. 256 at 22-24, 25, 31.) As to the right to receive 7 mail, if defendant Johnson’s practice was responsible for withholding plaintiff’s mail, defendant’s 8 actions constituted deliberate indifference. (ECF No. 256 at 22-24.) If defendant Johnson is 9 responsible for failing to provide plaintiff notice that his mail was withheld, defendant “violated 10 plaintiff’s due process right to notice.” (ECF No. 256 at 25:17-18.) Finally, if defendant 11 Johnson’s practice was “the proximate cause of” plaintiff’s inability to access the courts, 12 defendant’s “intentional conduct violate[d] the prisoner’s right of access to the courts.” (ECF No. 13 256 at 31:10-17.) Thus, the culpability of defendant Johnson must be determined before the issue 14 of qualified immunity can be assessed. 15 Finally, the undersigned agrees that plaintiff will be prejudiced by the further delay 16 involved in defendant’s interlocutory appeal. This action was filed in 2011, and awaiting 17 resolution of the interlocutory appeal would significantly delay trial in this matter. 18 Accordingly, IT IS HEREBY RECOMMENDED that: 19 1. Plaintiff’s motion to certify defendant’s appeal as frivolous (ECF No. 283) be granted; 20 2. Defendant’s interlocutory appeal (ECF No. 279) be certified as frivolous; 21 3. The Clerk of the Court be directed to serve a copy of this order on the United States 22 Court of Appeals for the Ninth Circuit, referencing Case No. 22-15665; and 23 4. This matter be remanded to the undersigned for further scheduling. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 1 | objections shall be filed and served within fourteen days after service of the objections. The 2 || parties are advised that failure to file objections within the specified time may waive the right to 3 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 4 | Dated: September 13, 2022 Foci) Aharon 6 KENDALL J. NE /pent0'518.app.friv UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28