(PC) Witkin v. Wise

• Court: District Court, E.D. California
• Decided: February 8, 2022
• Docket: 2:19-cv-00974
• Status: Unknown

Opinion

Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 1 of 43

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

11 MICHAEL WITKIN, No. 2: 19-cv-0974 KJM KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 D. WISE, 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 are cross-motions for summary judgment. (ECF

20 Nos. 90, 94.) For the reasons stated herein, the undersigned recommends that defendants’

21 summary judgment be granted and plaintiff’s summary judgment motion be denied.

22 II. Legal Standard for Summary Judgment

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

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

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

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

27 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis 28 for its motion, and identifying those portions of “the pleadings, 1 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 2 of 43

1 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate 2 the absence of a genuine issue of material fact.

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

4 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need

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

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

7 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory

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

9 burden of production may rely on a showing that a party who does have the trial burden cannot

10 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment

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

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

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

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

15 necessarily renders all other facts immaterial.” Id. at 323.

16 Consequently, if the moving party meets its initial responsibility, the burden then shifts to

17 the opposing party to establish that a genuine issue as to any material fact actually exists. See

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

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

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

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

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

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

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

25 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

26 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return

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

28 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 2 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 3 of 43

1 1564, 1575 (9th Cir. 1990).

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

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

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

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

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

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

8 amendments).

9 In resolving a summary judgment motion, the court examines the pleadings, depositions,

10 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R.

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

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

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

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

15 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from

16 which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224,

17 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a

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

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

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

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

22 By notice provided on February 28, 2020 (ECF No. 26), plaintiff was advised of the

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

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

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

26 ////

27 ////

28 //// 3 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 4 of 43

1 III. Plaintiff’s Claims

2 This action proceeds on plaintiff’s verified second amended complaint as to defendants

3 Wise and Matteson. 1 (ECF No. 49.)

4 Plaintiff alleges that on March 31, 2018, he was sitting in the visiting room at California

5 State Prison-Solano (“CSP-Solano”) with his brother, sister-in-law, niece and two nephews. (Id.

6 at 3.) Officer Airey approached the table where plaintiff and his family sat. (Id.) Officer Airey

7 asked if anyone at the table was “ADA.” (Id.) Plaintiff responded that he and his family were on

8 an “excessive distance” visiting appointment and did not wish to be further disturbed. (Id.)

9 Officer Airey walked away. (Id.)

10 Approximately five minutes later, Officer Airey returned. (Id.) Officer Airey told

11 plaintiff that he was seated at an ADA table that happened to be located in the children’s area and

12 that plaintiff’s lower bunk chrono had expired three days earlier. (Id.) Officer Airey told plaintiff

13 that he had to surrender his table. (Id.) Plaintiff told Officer Airey that he had already requested

14 no further harassment and asked Officer Airey to step away. (Id.) Officer Airey refused to step

15 away, telling plaintiff, “I need that table.” (Id.) Plaintiff saw that there were some “purported

16 ADA visitors” standing off to the side, so plaintiff slid the table over to these visitors. (Id. at 3-4.)

17 Officer Airey stepped away. (Id. at 4.)

18 Five minutes later, Officer Airey returned with a female colleague. (Id.) Officer Airey

19 demanded that plaintiff and his family give up their chairs. (Id.) Plaintiff laughed and responded,

20 “Why would we do that when there are hundreds of the same chairs stacked right there against the

21 wall where anyone can go get some.” (Id.) Plaintiff stated that he would do anything that “CCR”

22 said he was required to do, but nothing else. (Id.)

23 Officer Airey returned five minutes later with a document stating that plaintiff’s visit was

24 terminated. (Id.) Plaintiff was escorted out of the visiting room and his visit was terminated.

25 (Id.) Plaintiff was issued a Rules Violation Report for refusing to obey a direct order. (Id.)

27 1 The remaining defendants and claims in the second amended complaint are dismissed. (ECF 28 No. 65.) 4 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 5 of 43

1 Plaintiff alleges that defendant Wise presided over the disciplinary hearing. (Id.) Plaintiff

2 requested to present the surveillance video from the visiting room as evidence. (Id. at 4-5.)

3 Plaintiff alleges that defendant Wise pretended to make a few calls and then declared the video

4 tape unavailable. (Id.) Plaintiff alleges that he knew defendant Wise was lying because the video

5 tape had already been used to convict other inmates plaintiff knew of various offense involving

6 their activities at the March 31, 2018 visit. (Id.)

7 Plaintiff alleges that defendant Wise denied his request to call inmate Maxwell as a

8 witness. (Id.) Plaintiff also alleges that defendant Wise wrongly declared irrelevant plaintiff’s

9 questions for the reporting employee, i.e. Officer Airey. (Id. at 11.)

10 As legal claims, plaintiff alleges that defendant Wise violated his right to due process and

11 state law during the disciplinary hearing by denying his request to present the surveillance video,

12 denying his request to call inmate Maxwell as a witness, and refusing to allow him to ask the

13 reporting employee certain questions. (Id.)

14 Plaintiff also alleges that defendant Wise violated the Eighth Amendment and state law by

15 imposing a 90-days loss of outdoor exercise after finding plaintiff guilty of the rules violation.

16 (Id. at 9-11.) Plaintiff alleges that defendant Matteson violated the Eighth Amendment and state

17 law by upholding defendant Wise’s decision to impose the 90-days loss of outdoor exercise. (Id.)

18 IV. Defendants’ Summary Judgment Motion

19 A. Undisputed Facts

20 Defendants filed a statement of undisputed facts. (ECF No. 90-3.) Plaintiff filed a

21 response to defendants’ statement of undisputed facts, disputing defendants’ fact nos. 9, 11, 14,

22 15, 17, 18, 20, 25, 26, 29, 31 and 32. (ECF No. 99-1). While the undersigned herein

23 acknowledges these disputed facts, the undersigned addresses the merits of these disputes, where

24 relevant, in the discussion of the claims.

25 1. Undisputed: Plaintiff is a prisoner in the custody of the California Department of

26 Corrections and Rehabilitation (“CDCR”). (ECF No. 90-3 at 1-2.) Plaintiff was

27 housed at CSP-Solano, at times material to the matters at issue. (Id. at 2.)

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1 2. Undisputed: At all relevant times, defendant Wise was employed by CDCR at CSP-

2 Solano as a Correctional Lieutenant. (Id.) At all relevant times, defendant Matteson

3 was employed by CDCR at CSP-Solano as a Chief Deputy Warden. (Id.)

4 3. Undisputed: At all relevant times, plaintiff was housed in Facility C at CSP-Solano,

5 classified as a Level II inmate, and assigned to Privilege Group A1A. (Id.)

6 4. Undisputed: The Level II housing at CSP-Solano has open dormitories with bunk-

7 style sleeping quarters rather than enclosed cells. (Id.)

8 5. Undisputed: Inmates assigned to Privilege Group A1A have the most privileges

9 among all privilege groups within CDCR. (Id.) Inmates in this privilege group have

10 the maximum access to yard, phone calls, visitation, canteen and personal property

11 packages among all CDCR inmates. (Id.)

12 6. Undisputed: Specifically, with respect to yard time, inmates in Privilege Group A1A

13 may access the yard any time the yard is open during the inmate’s non-working hours.

14 (Id.) Access to the yard is generally only limited by security needs. (Id.) Inmates in

15 this privilege group may also access other recreational and entertainment activities any

16 time during the inmate’s non-working hours. (Id.)

17 7. Undisputed: Inmates assigned to Privilege Group A1A may be subject to a temporary

18 loss of privileges when they are subject to a disciplinary imposition following a guilty

19 finding on a rules violation report. (Id.)

20 8. Undisputed: Plaintiff was issued a rules violation report (“RVR”) no. 4855228 in

21 reference to an incident that occurred in the visiting room on March 31, 2018. (Id.)

22 Officer Zuniga served plaintiff with a copy of the RVR on April 10, 2018. (Id.)

23 Plaintiff was charged with disobeying an order in violation of California Code of

24 Regulations, title 15, section 3005(b). (Id. at 2-3.)

25 9. Disputed: Defendants contend that rules violation report no. 4855228 was classified

26 as serious pursuant to California Code of Regulation, title 15, section 3315(a). (Id. at

27 3.) Plaintiff contends that the RVR was incorrectly classified as serious. (ECF No.

28 99-1 at 2.) 6 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 7 of 43

1 10. Undisputed: On April 23, 2018, defendant Wise served as Senior Hearing Officer

2 presiding over a hearing on RVR no. 4855228. (ECF No. 90-3 at 3.)

3 11. Disputed: Defendants contend that plaintiff was given an opportunity to present

4 documentary evidence, call witnesses and cross-examine the officer who issued the

5 rules violation report. (Id.) Plaintiff contends that defendant Wise violated his right to

6 call witnesses and present documentary evidence. (ECF No. 99-1 at 2.)

7 12. Undisputed: Before the hearing, defendant Wise reviewed the evidence plaintiff

8 proposed to present during the hearing. (ECF No. 90-3 at 3.) Inmates have a right

9 under CDCR evidence to present documentary evidence and witness testimony at

10 disciplinary hearings; however the right is not unrestricted, and the hearing officer

11 may deny a request to present documentary evidence or witness testimony when the

12 hearing officer determines it is irrelevant to the proceedings. (Id.) The hearing officer

13 is required to screen all proposed witness questions to ensure they are relevant to the

14 violation charged. (Id.)

15 13. Undisputed: Plaintiff proposed to ask questions of Officer Airey, who issued the

16 RVR, as well as another inmate, inmate Maxwell. (Id.) Plaintiff also proposed to

17 present a written declaration from a non-inmate witness, Beverly Daria. (Id.) In

18 addition, plaintiff requested surveillance footage of the visiting room from March 31,

19 2018. (Id.)

20 14. Disputed: Defendants contend that at plaintiff’s request, defendant Wise attempted to

21 locate any surveillance footage by making a telephone call to the lieutenant assigned

22 to visiting. (Id.) Plaintiff was present when defendant Wise made the phone call.

23 (Id.) No footage was available. (Id.) Plaintiff disputes that defendant Wise made a

24 phone call in an attempt to locate the footage. (ECF No. 99-1 at 3.) Plaintiff contends

25 that defendant Wise pretended to call the lieutenant assigned to visiting. (Id.)

26 15. Disputed: Defendants contend that defendant Wise made individualized

27 determinations regarding each of plaintiff’s proposed witness questions and the

28 proposed defendants. (ECF No. 90-3 at 3.) The disciplinary hearing results reflect 7 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 8 of 43

1 each of defendant Wise’s determinations regarding the proposed evidence. (Id. at 3-

2 4.) Plaintiff argues that the only determinations defendant Wise made were to violate

3 plaintiff’s constitutional rights. (ECF No. 99-1 at 3.)

4 16. Undisputed: Plaintiff’s proposed questions to inmate Maxwell were related to the

5 following topics: whether there were individuals in the visiting room who were sitting

6 in chairs with no table, whether there were empty tables at the relevant time, whether

7 plaintiff’s seating arrangement affected inmate Maxwell’s visit, how many stacks of

8 chairs were against the wall, whether visitors were permitted to get chairs without the

9 assistance of staff, whether inmate Maxwell believed that there was a valid reason for

10 the termination of plaintiff’s visit, and whether inmate Maxwell had previously seen

11 inmates handcuffed in the visiting room. (ECF No. 90-3 at 4.)

12 17. Disputed: Defendants contends that defendant Wise denied plaintiff’s request to ask

13 the proposed questions of inmate Maxwell at the disciplinary hearing because they

14 were irrelevant to whether plaintiff disobeyed an order. (Id.) Plaintiff argues that his

15 questions of inmate Maxwell were relevant to showing that Officer Airey’s order was

16 unlawful, unauthorized and absurd. (ECF No. 99-1 at 3-4.)

17 18. Disputed: Defendants contend that plaintiff’s proposed exhibit, the declaration of

18 Beverly M. Daria, was purportedly authored and signed by another inmate’s mother

19 who witnessed the events on March 31, 2018. (ECF No. 90-3 at 4.) This individual

20 was not identified in the RVR and was not seated at plaintiff’s visiting table at the

21 time of the incident. (Id.) The declaration does not provide any relevant information.

22 (Id.) Plaintiff contends that Daria’s testimony was relevant to whether he disobeyed

23 an order. (ECF No. 99-1 at 4.)

24 19. Undisputed: Defendant Wise denied plaintiff’s request to admit the declaration of

25 Beverly M. Daria as evidence at the disciplinary hearing. (ECF No. 90-3 at 4.)

26 20. Disputed: Defendants contend that plaintiff was permitted to cross-examine Officer

27 Airey at the hearing regarding the order plaintiff allegedly violated. (Id.) Plaintiff

28 contends that defendant Wise improperly denied his request to ask Officer Airey 8 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 9 of 43

1 questions 4, 5, 6 and 8. (ECF No. 99-1 at 4.)

2 21. Undisputed: Defendant Wise screened out plaintiff’s fourth and fifth proposed

3 questions to Officer Airey. (ECF No. 90-3 at 4.) Plaintiff’s proposed fourth question

4 to Airey requested that Airey identify a section and subsection of the California Code

5 of Regulations requiring plaintiff to move to a different table. (Id.) Plaintiff’s

6 proposed fifth question to Airey was, “Did inmate Witkin at any point tell you to stop

7 harassing him and his visitors?” (Id.)

8 22. Undisputed: Defendant Witkin screened out plaintiff’s sixth and eighth questions to

9 Officer Airey because they were already answered in the body of the RVR Officer

10 Airey issued to plaintiff. (Id. at 5.) They were also duplicative of plaintiff’s proposed

11 first question to Officer Airey, which plaintiff was permitted to ask during the hearing.

12 (Id.) Plaintiff’s sixth proposed question of Officer Airey asked, “Does your report

13 confirm that inmate Witkin obeyed every lawful and comprehensible order you gave?”

14 (Id.) Plaintiff’s proposed eighth question of Officer Airey asked, “What lawful order

15 of yours was not obeyed by inmate Witkin to leave the visiting floor?” (Id.)

16 23. Undisputed: Following the hearing, defendant Wise found plaintiff guilty of the

17 alleged offense. (Id.) Defendant Wise assessed losses of daytime yard privileges and

18 visiting privileges for a period of ninety days. (Id.) Plaintiff was provided with a

19 copy of the disciplinary hearing results. (Id.) Plaintiff was also provided with a loss

20 of privileges worksheet. (Id.)

21 24. Undisputed: Despite the temporary loss of privileges associated with the disciplinary

22 action, plaintiff remained assigned to Privilege Group A1A. (Id.)

23 25. Disputed: Defendants contend that during the relevant time period, the Facility C yard

24 was generally open for use for nine hours per day, from approximately 8:30 a.m. to 12

25 p.m., 12:30 p.m. to 4:00 p.m., and 7:00 p.m. to 9:00 p.m. (Id.) This schedule as

26 modified on some occasions to accommodate facility operations or to address security

27 concerns. (Id.) Plaintiff disputes defendants’ claims regarding when the yard was

28 open. Plaintiff contends that the yard book shows that the yard always closed at 2050, 9 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 10 of 43

1 i.e., 8:30 p.m. (ECF No. 99-1 at 4.) Plaintiff contends that the yard often opened at

2 1910, 1920 and 1925, but almost never at all at 1900, i.e., 7:00 p.m. (Id.)

3 26. Disputed: Defendants contend that plaintiff’s disciplinary imposition restricted

4 plaintiff’s access to the yard during daytime hours. (ECF No. 90-3 at 5.) Thus, during

5 the ninety-days disciplinary period, plaintiff would have been permitted to access the

6 yard during the evening (7:00 p.m. to 9:00 p.m.), subject to his work schedule. (ECF

7 No. 90-3 at 5.) During the relevant time period, plaintiff worked as a building porter

8 from 2:00 p.m. to 9:00 p.m. Monday through Friday. (Id.) Therefore, plaintiff would

9 have been able to access the yard from 7:00 p.m. to 9:00 p.m. on Saturdays and

10 Sundays. (Id.) Plaintiff disputes defendants claim that the yard was open from 7:00 to

11 9:00 p.m. (ECF No. 99-1 at 4.) Plaintiff contends that it is undisputed that he was

12 offered, on average, 2 hours and 16 minutes of outdoor exercise per week during the

13 90 days disciplinary period. (Id.)

14 27. Undisputed: Building porters perform a variety of duties that involve physical

15 movement. (ECF No. 90-3 at 5.) For example, porters are tasked with sweeping and

16 mopping the floors of the tiers and the day room. (Id.) Porters also clean the shower

17 areas and wipe off equipment in the day room, including the phones and televisions.

18 (Id. at 5-6.) Porters also empty trash receptacles and, on some occasions, clean the

19 staff offices in the housing unit. (Id. at 6.) When meals are served in the housing unit,

20 porters assist with passing out meal trays and collecting empty meal trays to be placed

21 back on a cart. (Id.)

22 28. Undisputed: Because plaintiff maintained his assignment to Privilege Group A1A,

23 plaintiff’s privileges with respect to canteen and personal property packages,

24 telephone access, and access to other recreation and entertainment activities remained

25 the same during the disciplinary period. (Id.)

26 29. Disputed: Defendants contend that after the hearing, plaintiff sent defendant Wise a

27 CDCR Form 22 in which plaintiff expressed dissatisfaction with the results of the

28 hearing on April 23, 2018, including the loss of daytime yard privileges. (Id.) 10 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 11 of 43

1 Defendant Wise replied to plaintiff using the CDCR Form 22 on May 9, 2018, and

2 advised plaintiff to use the formal inmate-appeals process. (Id.) Plaintiff disputes

3 defendants’ undisputed fact no. 29. (ECF No. 99-1 at 5.) Plaintiff claims that on May

4 5, 2018, he and defendant Wise had a face-to-face conversation. (Id.)

5 30. Undisputed: Inmates in Level II Privilege Group A1A who are not subject to a

6 disciplinary imposition are generally permitted to use the yard time when it is offered,

7 subject to their work assignment schedule and/or other required programming or

8 institutional security needs; however, inmates may choose not to engage in outdoor

9 exercise. (ECF No. 90-3 at 6.)

10 31. Disputed: Defendants contend that during non-working hours throughout the

11 disciplinary period, plaintiff was permitted to walk about the facility, use the showers,

12 use the phone and access the day room for watching TV or other activities, such as

13 playing chess. (Id.) In his response to defendants’ undisputed fact no. 31, plaintiff

14 contends that his ability to use showers, etc. is not relevant to whether he was allowed

15 outdoor exercise. (ECF No. 99-1 at 5.) Plaintiff contends that he was only permitted

16 to “walk about the facility” on Saturday and Sunday evenings when the yard was

17 open. (Id.)

18 32. Disputed: Defendants contend that during the disciplinary period, plaintiff used the

19 yard during one or two of the evening sessions offered to him each week. (ECF No.

20 90-3 at 6.) Plaintiff contends that defendants misconstrued his deposition testimony.

21 (ECF No. 99-1 at 5.)

22 33. Undisputed: Plaintiff’s daytime yard privileges were reinstated on July 22, 2018 after

23 ninety days. (ECF No. 90-3 at 6.)

24 34. Undisputed: The only government claim plaintiff has submitted to the Government

25 Claims Program alleging negligence, denial of adequate outdoor exercise or violations

26 of procedural due process rights by defendants is Claim No. 18009022. (Id.)

27 35. Undisputed: Plaintiff signed his government claim form on October 2, 2018 and the

28 Government Claims Program received plaintiff’s government claim form on October 11 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 12 of 43

1 5, 2018. (Id. at 7.)

2 36. Undisputed: The Government Claims Program rejected plaintiff’s government claim

3 on October 25, 2018, and the rejection letter was deposited in the mail on the same

4 day. (Id.)

5 37. Undisputed: In his government claim, plaintiff disputed an RVR issued on May 7,

6 2018, and a bunk search that purportedly occurred on that day. The claim also alleged

7 that defendant Wise violated plaintiff’s due process rights, without further

8 information. The government claim does not discuss any alleged injuries caused by

9 the restrictions on plaintiff’s outdoor exercise or negligence committed by defendants.

10 (Id.)

11 B. Due Process Claim Against Defendant Wise

12 Legal Standard

13 A prisoner is entitled to certain due process protections when he is charged with a

14 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing Wolff v.

15 McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights to call

16 witnesses, to present documentary evidence and to have a written statement by the fact-finder as

17 to the evidence relied upon and the reasons for the disciplinary action taken.” Id. at 1077-78.

18 Prison officials may, however, disallow evidence on the ground it is irrelevant or

19 unnecessary or because doing so would present hazards under the circumstances of the case.

20 Wolff, 418 U.S. at 566.

21 Background/Clarification of Due Process Claim

22 To put plaintiff’s due process claim in context, the undersigned sets forth herein the

23 circumstances of plaintiff’s offense as described by Officer Airey in the RVR:

24 On March 31, 2018 at approximately 1130 hours while performing my duties as the Level II visiting floor Officer I was approached by 25 two visitors who had high table passes and Doctors notes stating that they needed to be seated at a high table. I identified the ADA 26 (Americans with Disability Act) table area and observed Inmate Witkin (F08703) who was positively identified by his issued CDCR 27 Identification Card sitting with his visitors at a ADA approved table. I approached Witkin and his guest and asked if anyone was ADA, 28 and if not I needed the sitting area for people who were ADA 12 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 13 of 43

1 approved. Inmate Witkin acknowledged he was not ADA by stating, “No, why.” I informed inmate Witkin that the table he was sitting at 2 was a ADA approved table, which are clearly marked “ADA ONLY” on all the high tables in the area. I again informed inmate Witkin that 3 if no one in his party was ADA that they would have to find seating in the general seating area. Inmate Witkin proceeded to tell me that 4 he was ADA. I conducted a review of SOMS in order to check the status of inmate Witkin’s claim. I returned to the table and informed 5 inmate Witkin that he is not ADA and that he would have to move. Inmate Witkin became upset and told his guests to give me the table. 6 Inmate Witkin proceeded to push the table out into the walk isle area and retain all of the chairs in a small circle. I informed inmate Witkin 7 that the chairs belonged to the table and that he and his guest would have to move to the general seating area. Inmate Witkin refused and 8 stated that I need to show him where it says the chairs belong to the table in writing. I informed inmate Witkin again that he was not 9 ADA and that he cannot make up his own seating arrangements, as there was seating for his group in the general visiting area. I 10 informed Witkin that his refusal to follow my orders of moving to an area not marked ADA would result in his visit being terminated for 11 the day. Inmate Witkin continued to ignore my orders and continued to talk over me and would not move. I went to the podium and 12 completed the Warning/Termination notice (CDCR Form 887-B) and proceeded to give inmate Witkin his copy notifying him of 13 terminating his visit.

14 I told inmate Witkin that due to his refusal to obey a direct order that his visitation was terminated for his actions and not his guests. I 15 informed inmate Witkin that his guests would have the opportunity to visit him the following day. Inmate Witkin continued to argue 16 with me and told me that I couldn’t terminate his visit because I didn’t give him a verbal warning. I told inmate Witkin that I did give 17 him a warning but he chose not to listen and now his visit was terminated. Inmate Witkin continued to be unreceptive to my 18 counseling and said that he was refusing to leave and that I couldn’t make him go. I informed inmate Witkin that if he refused to go that 19 I would place him in handcuffs and escort him out of the visiting room. Once again inmate Witkin stated that he wasn’t leaving. I 20 ordered inmate Witkin to stand up and “cuff up” for failure to comply with a direct order. Inmate Witkin stood up and complied with my 21 orders and placed him in handcuffs escorting him out to the level II rear strip area. As I escorted inmate Witkin to the rear strip door he 22 tried to intimidate me by asking if I know what was in his words were “AN AMERICAN GANGSTER.” I told inmate Witkin that I didn’t 23 care. Inmate Witkin then stated, “WELL YOUR ABOUT TO BECAUSE I AM ONE.” I was not threatened by inmate Witkin’s 24 attempts to escalate the situation and placed him in the rear strip room. Lt. J. Rubalcaba arrived to speak with inmate Witkin and 25 continued to be unreceptive to counseling and was informed that he would be receiving 115 rules violation report for “Disobeying a 26 Direct Order.” Witkin was given several verbal warnings about his seating status and was afforded the opportunity to have a visit the 27 following day, but due to his continued disrespect and failure to comply with my orders he was informed that his visits would be 28 suspended until adjudication of this RVR in accordance with Title 15 13 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 14 of 43

1 section 3176.4(a). Inmate Witkin was processed out of the rear strip and was sent back to his housing unit and I returned to the visiting 2 floor and resumed my duties. This concludes my report.

3 (ECF No. 90-6 at 10.)

4 The RVR indicates that plaintiff disobeyed two orders, i.e., the order to leave the ADA

5 table and the order to leave the visiting room when plaintiff’s visit was terminated. At the

6 disciplinary hearing, Officer Airey also testified that plaintiff disobeyed two orders: 1) the order

7 to leave the ADA table and use open low tables in the general visiting area by the glass windows

8 near the patio area; and 2) the order to leave the visiting room floor after plaintiff’s visit was

9 terminated. (ECF No. 90-6 at 15.)

10 The section of the Disciplinary Hearing Results report discussing defendant Wise’s

11 decision does not clearly state that he found plaintiff guilty of disobeying both of Officer Airey’s

12 orders. (Id. at 16-18.) In his declaration submitted in support of the summary judgment motion,

13 defendant Wise also does not address whether he found plaintiff guilty of disobeying both of

14 Officer Airey’s orders. (Id. at 1-8.) However, because the Disciplinary Hearing Results report

15 indicates that defendant Wise relied on Officer Airey’s RVR in finding plaintiff guilty, it appears

16 that defendant Wise found plaintiff guilty of disobeying both orders. (See ECF No. 90-6 at 16.)

17 In the second amended complaint, plaintiff appears to challenge only his ability to present

18 evidence in defense of the charge that he disobeyed Officer Airey’s first order. Plaintiff does not

19 dispute the validity of Officer Airey’s second order and nor does not dispute his failure to obey

20 the second order. In his cross-motion for summary judgment, plaintiff also does not argue that

21 the alleged due process violations concerned his ability to present a defense to the charge of

22 disobeying Officer Airey’s second order. Accordingly, the undersigned herein considers plaintiff

23 due process claim only in connection with Officer Airey’s first order. 2

24 2 Whether defendant Wise found plaintiff guilty of disobeying one or two orders may have made a difference in the punishment he imposed. In his declaration, defendant Wise states that there 25 may be an imposition of discipline of up to 90 days loss of privileges for an inmate found guilty 26 of a serious rules violation. (ECF No. 90-6 at 6.) Defendant Wise states, “Due to the severity of the offense and the fact that it occurred in the presence of other inmates and members of the 27 public, I assessed losses of daytime yard privileges and visiting privileges for a period of 90 days.” (Id.) If plaintiff was found guilty of disobeying only one order, it is possible that 28 defendant Wise may have imposed less punishment. 14 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 15 of 43

1 Questions Addressed to Inmate Maxwell

2 Defendants argue that defendant Wise properly disallowed plaintiff’s questions to inmate

3 Maxwell because they were not relevant to determining whether plaintiff failed to obey an order.

4 As discussed above, the parties do not dispute that plaintiff’s proposed questions to inmate

5 Maxwell were related to the following topics: whether there were individuals in the visiting room

6 who were sitting in chairs with no table, whether there were empty tables at the relevant time,

7 whether plaintiff’s seating arrangement affected inmate Maxwell’s visit, how many stacks of

8 chairs were against the wall, whether visitors were permitted to get chairs without the assistance

9 of staff, whether inmate Maxwell believed that there was a valid reason for the termination of

10 plaintiff’s visit, and whether inmate Maxwell had previously seen inmates handcuffed in the

11 visiting room.

12 In his declaration submitted in support of defendants’ motion, defendant Wise states that

13 he denied plaintiff’s request to ask these questions of inmate Maxwell because they were not

14 relevant to whether plaintiff disobeyed an order. (ECF No. 90-6 at 5.)

15 In his opposition, plaintiff argues that inmate Maxwell’s testimony was relevant to his

16 defense that Officer Airey’s order was unlawful. (ECF No. 99 at 20.) Plaintiff argues that there

17 are no areas or chairs in the visiting room marked ADA or “not ADA.” (Id. at 19.) Plaintiff

18 suggests that he could not comply with the order to move to a “not-ADA” section of the visiting

19 room because there was no section with this designation. (Id.) Plaintiff suggests that the only

20 order he could comply with was the order to surrender the ADA table, which he did. (Id.)

21 After reviewing the record, it appears that plaintiff is correct that there are tables in the

22 visiting room marked ADA, but no specific areas or chairs marked ADA or “not ADA.” In

23 response to special interrogatory no. 16, defendant Wise stated, “It is visiting room policy that

24 tables designated for ADA inmates and visitors be reserved for inmates and visitors in need of

25 ADA accommodations. Plaintiff and his visitors did not require ADA accommodations.” (ECF

26 No. 94-3 at 101.)

27 However, the undersigned finds (as argued by defendants in the opposition) that even if

28 there were no areas or chairs in the visiting room marked ADA or “not ADA,” any reasonable 15 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 16 of 43

1 person would have understood Officer Airey’s first order as an order to vacate the ADA table and

2 its chairs and to move to a table that was not marked ADA. Plaintiff’s claim that he was unable

3 to comply with Officer Airey’s order because the visiting room did not have areas or chairs

4 marked ADA or non-ADA is without merit.

5 Plaintiff also argues that Officer Airey’s order to give up the chairs was illegal because

6 there were many chairs stacked against the wall. This argument is without merit. Even if there

7 were many chairs stacked against the wall, plaintiff was still required to obey Officer Airey’s

8 order to leave the chairs and move to a table not marked ADA. See Cal. Code Regs. title 15,

9 § 3005(b) (inmates must promptly and courteously obey written and verbal orders); Lopez v.

10 Galaza, 2006 WL 3147686, at *11 (E.D. Cal. Nov. 1, 2006) (Section 3005(b) contains no

11 exception to the requirement that inmates promptly and courteously obey written and verbal

12 orders from staff); Lewis v. Downey, 581 F.3d 467, 476 (7th Cir. 2009) (quoting Soto v. Dickey,

13 744 F.2d 1260, 1267 (7th Cir. 1984) (“Orders given must be obeyed. Inmates cannot be

14 permitted to decide which orders they will obey, and when they will obey them.... Inmates are and

15 must be required to obey orders. When an inmate refuse[s] to obey a proper order, he is

16 attempting to assert his authority over a portion of the institution and its officials. Such refusal

17 and denial of authority places the staff and other inmates in danger.”).

18 As discussed above, the proposed questions to inmate Maxwell did not disprove that

19 plaintiff disobeyed Officer Airey’s first order. The proposed questions to inmate Maxwell went

20 to the validity of Officer Airey’s first order, which was not a valid defense. Accordingly, the

21 undersigned finds that defendant Wise correctly found that the proposed questions to inmate

22 Maxwell were not relevant and the exclusion of these questions did not violate plaintiff’s due

23 process rights. 3

24 ////

25 ////

26 3 Had plaintiff’s due process claim included Officer Airey’s second order, the undersigned would 27 find that the questions to inmate Maxwell were not relevant to this charge. As discussed above, plaintiff does not dispute that he disobeyed the second order. In addition, the questions to inmate 28 Maxwell do not disprove that he disobeyed the second order. 16 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 17 of 43

1 Daria Declaration

2 Defendants argue that defendant Wise properly denied plaintiff’s request to present the

3 declaration of Beverly M. Daria because the declaration presented no relevant information.

4 Although plaintiff does not clearly raise a claim regarding the Daria declaration, the undesigned

5 addresses this argument raised in defendants’ summary judgment motion herein.

6 In his declaration, defendant Wise states that plaintiff’s proposed exhibit, the declaration

7 of Beverly M. Daria, was purportedly authored and signed by a non-inmate witness to the events

8 on March 31, 2018. (ECF No. 90-6 at 5.) Defendant Wise states that Beverly M. Daria was not

9 identified in the RVR and was not seated at plaintiff’s visiting table at the time of the incident.

10 (Id.) Defendant Wise also states that the information in the declaration was not relevant to

11 whether plaintiff disobeyed an order. (Id.) For these reasons, defendant Wise denied plaintiff’s

12 request to admit the declaration as evidence at the hearing. (Id.)

13 Plaintiff argues that the Daria declaration was relevant to his defense that he did not

14 disobey any lawful orders. (ECF No. 99 at 20.) In support of this argument, plaintiff cites the

15 Daria declaration which states,

16 The facts stated herein are true of my own personal knowledge:

17 1. I was in the SOL Level II visiting room on March 31, 2018. From where I was seated I could see inmate Witkin (F08703) 18 visiting with his family members. 19 2. A Correctional Officer named Airey kept going to the table where Inmate Witkin was visiting with his family. 20 3. From my vantage point it appeared that Airey was harassing 21 Witkin and his family. He seemed bent on terminating their visit. 22 4. Every time Airey told Witkin and his family to do something 23 they did it, but he kept coming back to their family’s table and making up other things for them to do. It was very 24 unprofessional and uncalled for. 25 5. Eventually Airey told Witkin to stand up and handcuffed him. As soon as Witkin was handcuffed Airey tried unsuccessfully to 26 manhandle Witkin. 27 6. It was very disturbing, offensive and inappropriate to see an inmate handcuffed, not only in the visiting area, but in the 28 children’s area especially. Exhibiting that negativity and abuse 17 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 18 of 43

1 of authority in front of those small children was degrading and distressing. 2 7. C/O Airey’s conduct was a discredit to CDCR and case SOL 3 staff in a very unprofessional and unreasonable light.

4 8. If something like this was every done at my family’s visit I would not only file an appeal with the Warden, I would contact 5 the California Legislature in regards to the extreme abuses of discretion being perpetrated in the People’s institutions. 6

7 (Id.)

8 The Daria declaration is purportedly signed by Beverly Daria, under penalty of perjury,

9 and contains her telephone number. (Id.)

10 In her declaration, Ms. Daria does not describe the “things” Officer Airey kept “making

11 up” for plaintiff and his family to do. Based on the vague and conclusory statements in this

12 declaration, the undersigned finds that the Daria declaration did not disprove that plaintiff

13 disobeyed Officer Airey’s order. In addition, plaintiff does not dispute that he failed to obey the

14 order to give up the chairs and move to the general seating area. For these reasons, the

15 undersigned finds that defendant Wise correctly excluded this declaration as not relevant to

16 whether plaintiff disobeyed Officer Airey’s first order. Accordingly, the exclusion of this

17 declaration did not violate plaintiff’s due process rights. 4

18 Questions Addressed to Officer Airey

19 Defendants argue that defendant Wise properly screened out plaintiff’s fourth, fifth, sixth

20 and eighth questions to Officer Airey. In support of this argument, defendants refer to defendant

21 Wise’s declaration.

22 Defendant Wise states that plaintiff was permitted to cross-examine Officer Airey at the

23 disciplinary hearing. (ECF No. 90-6 at 5.) Plaintiff’s fourth question requested Officer Airey to

24 identify a section and subsection of Title 15 requiring him to move to a different table. (Id. at

25 15.) Plaintiff’s fifth question to Officer Airey asked, “Did Inmate Witkin at any point tell you to

26 4 Had plaintiff’s due process claim included Officer Airey’s second order, the undersigned would 27 find that the Daria declaration was not relevant to this charge. As discussed above, plaintiff does not dispute that he disobeyed the second order. In addition, the Daria declaration does not 28 disprove that he disobeyed the second order. 18 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 19 of 43

1 stop harassing him and his visitors?” (Id.) Defendant Wise found that questions fours and five

2 were not relevant to the inquiry of whether plaintiff disobeyed an order. (Id.)

3 Defendant Wise screened out questions six and eight because they were already answered

4 in the body of the RVR. (Id.) They were also duplicative of plaintiff’s first proposed question to

5 Officer Airey, which plaintiff was permitted to ask during the hearing. (Id.) Question six asked,

6 “Does your report confirm that Inmate Witkin obeyed every lawful and comprehensible order you

7 gave?” (Id. at 15.) Question eight asked, “What lawful order of ours was not obeyed by Inmate

8 Witkin to leave the visiting floor?” (Id.) Question one asked, “Which order did you give that

9 was not followed?” (Id.)

10 In his opposition, plaintiff cites his deposition testimony where he testified that questions

11 4, 5, 6 and 8 went to the lawfulness of Officer Airey’s orders. (ECF No. 99-1 at 4.)

12 As discussed above, the law did not permit plaintiff to disobey Officer Airey’s orders

13 because plaintiff thought they were unlawful. In addition, plaintiff does not dispute that he

14 disobeyed Officer Airey’s orders to give up the chairs and move to the general seating area. For

15 these reasons, the undersigned finds that defendant Wise correctly found that questions four and

16 five were not relevant to whether plaintiff disobeyed Officer Airey’s orders. The undersigned

17 also finds that defendant Wise properly screened out questions six and eight as duplicative of

18 question one and addressed in the body of the RVR.

19 For the reasons discussed above, the undersigned finds that the exclusion of questions 4,

20 5, 6 and 8 addressed to Officer Airey did not violate plaintiff’s due process rights. 5

21 Video Evidence

22 Defendants move for summary judgment as to plaintiff’s claim that he was not allowed to

23 present the surveillance video from the visiting room on the grounds that the video could not be

24 located. In his declaration, defendant Wise states that he attempted to locate the surveillance

25 footage plaintiff requested by making a telephone call to the lieutenant assigned to visiting.

26 5 Had plaintiff’s due process claim included Officer Airey’s second order, the undersigned would 27 find that defendant Wise’s decision to exclude these questions did not violate plaintiff’s right to due process based on the same reasoning discussed above regarding the relevance of the 28 questions to Officer Airey’s first order. 19 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 20 of 43

1 (ECF No. 90-6 at 5.) Plaintiff was present when defendant Wise made this telephone call. (Id.)

2 The lieutenant told defendant Wise that the footage was not available. (Id.)

3 In his opposition, plaintiff argues that defendant Wise knew that the Investigative Services

4 Unit (“ISU”) managed the storage of video surveillance recordings, rather than the lieutenant

5 assigned to visiting. (ECF No. 99-1 at 3.) In support of this argument, plaintiff cites defendant

6 Wise’s response to interrogatory no. 14, set four. (Id.) Interrogatory no. 14 asked defendant

7 Wise to describe the procedures for the presentation and storage of video surveillance recordings

8 at SOL, including who is responsible for such procedures. (ECF No. 82 at 28.) Without waiving

9 objections, defendant Wise responded that the storage of video surveillance recordings is

10 managed by the ISU. (Id.) Plaintiff argues that during the disciplinary hearing, defendant Wise

11 “pretended” to call the Lieutenant assigned to visiting, knowing that the videos were actually

12 maintained by the ISU. (ECF No. 99-1 at 3.)

13 In the reply, defendants argue that plaintiff provides no admissible evidence

14 demonstrating that the lieutenant assigned to visiting would not know whether the footage existed

15 or would be able to obtain it for use in plaintiff’s disciplinary hearing. (ECF No. 107 at 5, n.3.)

16 While this may be true, plaintiff has presented evidence demonstrating that the person defendant

17 Wise called to ask for the video footage, i.e., the lieutenant assigned to the visiting room, did not

18 maintain this video footage. Plaintiff has also presented evidence that defendant Wise knew that

19 the footage was maintained by the ISU. The undersigned finds that plaintiff has presented

20 sufficient evidence to create a dispute regarding whether the surveillance video was available and

21 whether defendant Wise made a good faith attempt to locate the surveillance video during the

22 disciplinary hearing.

23 Despite the dispute regarding the availability of the surveillance video, the undersigned

24 finds that plaintiff’s inability to present the surveillance video as evidence at his disciplinary

25 hearing did not violate his due process rights.

26 Plaintiff has a due process right to present relevant documentary evidence. Wolff, 418

27 U.S. at 567 (emphasis added). As discussed above, plaintiff does not dispute that he disobeyed

28 Officer Airey’s orders to leave the chairs and move to a table not marked ADA. For this reason, 20 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 21 of 43

1 the surveillance video was not relevant to whether plaintiff disobeyed Officer Airey’s orders. The

2 surveillance video would not disprove that plaintiff disobeyed Officer Airey’s orders to give up

3 the chairs and move to a table not marked ADA. Accordingly, defendant Wise’s failure to

4 produce the surveillance video did not violate plaintiff’s right to due process. 6

5 Some Evidence

6 In his opposition, plaintiff argues that defendants failed to address whether sufficient

7 evidence supported defendant Wise’s decision finding plaintiff guilty of the RVR. (ECF No. 99

8 at 8-9.) However, plaintiff’s second amended complaint does not raise a due process claim

9 alleging that his disciplinary conviction was not supported by sufficient evidence. Plaintiff may

10 not raise a new claim in his opposition. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1291-

11 93 (9th Cir. 2000); Ziptronix, Inc. v. Omnivision Technologies, Inc., 71 F.Supp.3d 1090, 1099

12 (N.D. Cal. Oct. 21, 2014) (a plaintiff cannot raise a claim for the first time in response to a motion

13 for summary judgment). Accordingly, the undersigned need not address this argument further.

14 C. Eighth Amendment Claims

15 Legal Standard

16 The Eighth Amendment’s prohibition against cruel and unusual punishment protects

17 prisoners not only from inhumane method of punishment but also from inhumane methods of

18 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v.

19 Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981). To

20 maintain an Eighth Amendment claim, a prisoner must show that prison officials were

21 deliberately indifferent to a substantial risk of harm to his health or safety. Farmer, 511 U.S. at

22 847. This requires the prisoner to demonstrate (1) the existence of an objectively serious risk of

23 harm, and (2) that subjectively, prisoner officials knew of and disregarded that risk. Farmer, 511

24 U.S. at 834, 847.

26 6 27 Had plaintiff’s due process claim included Officer Airey’s second order, the undersigned would find that the surveillance video was not relevant to this charge because plaintiff does not dispute 28 that he disobeyed the second order. 21 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 22 of 43

1 The deprivation of a single identifiable human need such as exercise may violate the

2 Eighth Amendment. Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010). The right to

3 outdoor exercise is not absolute or indefeasible, Norwood v. Vance, 591 F.3d 1062, 1068 (9th

4 Cir. 2010), but “ordinarily the lack of outside exercise for extended periods is a sufficiently

5 serious deprivation” for Eighth Amendment purposes. LeMaire v. Maass, 12 F.3d 1444, 1457

6 (9th Cir. 1993).

7 “’[T]he Constitution requires jail officials to provide outdoor recreation opportunities, or

8 otherwise meaningful recreation, to prison inmates.’” Norbert v. City and County of San

9 Francisco, 10 F.4th 918, 931 (2021) (quoting Shorter v. Baca, 895 F.3d 1176, 1185 (9th Cir.

10 2018)). Indoor recreational opportunities may satisfy constitutional standards. Id. at 929-30. For

11 example, access to a dayroom designed for exercise may be adequate recreation. Id. at 931.

12 In Norbert, the Ninth Circuit noted that there is no bright line to test to determine if and

13 when inmates are entitled to outdoor exercise. Id. at 933. In Norbert, the Ninth Circuit

14 considered the totality of circumstances in determining whether jail officials provided

15 constitutionally adequate exercise time, including opportunities for indoor recreation, the length

16 of time the inmate is held under the conditions, whether the inmate has contact with others,

17 whether disciplinary measures impact the conditions, and whether the inmate has opportunities

18 for training or rehabilitation programs. Id. at 929-34.

19 Clarification of Disputed and Undisputed Facts Regarding Eighth Amendment Claim

20 At the outset, the undersigned observes that the parties dispute the number of hours per

21 week plaintiff was permitted outdoor exercise during the disciplinary period. Defendants contend

22 that plaintiff had yard access 4 hours per week, i.e., when the yard was open from 7:00 to 9:00

23 p.m. on Saturday and Sunday evenings. Plaintiff contends that he had yard access, on average,

24 only 2 hours and 16 minutes per week on Saturday and Sunday evenings due to irregular yard

25 hours.

26 The undersigned also addresses defendants’ claim that during the disciplinary period,

27 plaintiff used the yard during only one of the two sessions offered to him each week. In support

28 of this claim, defendants cite plaintiff’s deposition testimony at pp. 66:23-67:7. (ECF No. 90-3 at 22 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 23 of 43

1 6 (undisputed fact no. 32).) After reviewing the pages from plaintiff’s deposition cited by

2 defendants, the undersigned does not find that plaintiff testified that he used the yard during one

3 of the two sessions offered:

4 Q: Did you do anything to stay in shape during the disciplinary period? 5 A: Yeah. I tried to workout on one of those weekend evenings when 6 I was able to go to the yard. I tried to do one workout every week, but I’m not into doing –I’m not into doing the same muscle groups 7 on back to back days. So I wasn’t gonna repeat my workout Saturday and Sunday, but I tried to do a workout every weekend on those time 8 that I was allowed to go to yard. 9 Plaintiff’s deposition at pp. 66:23-25—67: 1-7.)

10 In the testimony above, plaintiff explained that he worked out on one weekend evening

11 because he did not want to work out on “back to back” days. Plaintiff did not testify that he did

12 not go to the yard on the evening he did not work out. Defendants claim that plaintiff testified

13 that he did not use the yard every time it was available to him is incorrect.

14 The undersigned also addresses the activities available to plaintiff during the disciplinary

15 period. It is undisputed that during the disciplinary period, plaintiff was housed in an open

16 dormitory with bunk-style quarters rather than in an enclosed cell. It is undisputed that during the

17 disciplinary period, plaintiff worked as a building porter from 2:00 to 9:00 p.m. Monday through

18 Friday. 7 It is undisputed that plaintiff’s privileges with respect to canteen and personal property

19 packages, telephone access, and access to other recreation and entertainment activities remained

20 the same during the disciplinary period. It is undisputed that during non-working hours during

21 the disciplinary period, plaintiff was permitted to use the showers, use the phone and access the

22 dayroom for watching TV or other activities such as playing chess. 8

23 7 In undisputed fact no. 26, defendants state, in part, that during the disciplinary period, plaintiff 24 worked as a porter from 2:00 p.m. to 9:00 p.m. (ECF No. 90-3 at 5.) While plaintiff disputes other statements in defendants’ undisputed fact no. 26, plaintiff does not dispute that he worked 25 as a porter during the times alleged. (ECF No. 99-1 at 4-5.) 26 8 In undisputed fact no. 31, defendants state that during the disciplinary period, plaintiff was 27 permitted to use showers, use the phone and access the day room for watching TV or other activities. (ECF No. 90-3 at 6.) In response to defendants’ undisputed fact no. 31, plaintiff states 28 that these activities are not relevant to whether he received constitutionally adequate exercise. 23 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 24 of 43

1 Although disputed by plaintiff, the undersigned also finds that plaintiff’s RVR was

2 properly classified as serious. In his declaration, defendant Wise states that the RVR was

3 classified as serious because the violation occurred in front of members of the public and other

4 inmates during visiting hours. (ECF No. 90-6 at 4.) Defendant Wise states that the classification

5 of the RVR as serious is justified by several subdivisions of California Code of Regulations, Title

6 15, § 3315, including but not limited to, subdivisions (a)(2)(B) [hazard to facility security];

7 (a)(2)(C) [disruption of facility operations]; (a)(2)(E) [attempt to cause hazard to facility security

8 or disrupt facility operations]; and (a)(3)(H) [act of disobedience or disrespect having the

9 potential for violence or mass disruption]. (Id.)

10 Analysis

11 Defendants argue that the amount of outdoor exercise plaintiff received during the

12 disciplinary period did not violate the objective component of the Eighth Amendment.

13 The undersigned first addresses the arguments raised in plaintiff’s opposition.

14 Plaintiff argues that he suffered medical injury as a result of inadequate outdoor exercise

15 during the disciplinary period. (ECF No. 99 at 12.) Plaintiff cites his second amended complaint

16 where he alleges that he suffered back and neck pain, stiffness, soreness, muscle atrophy, energy

17 loss, shortness of breath, headaches, lethargy and loss of muscle range, humiliation, degradation,

18 emotional distress, mental distress and depression due to inadequate exercise. (ECF No. 49 at

19 10.)

20 The determination of the medical causes of plaintiff’s symptoms described in the second

21 amended complaint involve matters that are scientific, technical or require specialized

22 knowledge. Accordingly, the court cannot consider plaintiff’s opinion as a lay witness that the

23 symptoms described above were caused due to inadequate exercise. See Fed. R. Evid. P. 701.

24 In support of his claim that he suffered injuries due to inadequate exercise, plaintiff also

25 cites medical records attached to his opposition as exhibit B. On June 19, 2018, plaintiff

27 (ECF No. 99-1 at 5.) However, plaintiff does not dispute that he was permitted to engage in the activities described in defendants’ undisputed fact no. 31. Accordingly, the undersigned finds 28 these facts undisputed. 24 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 25 of 43

1 complained of joint pain. (ECF No. 99-2 at 5.) The medical record describes the “mechanism of

2 injury” as, “I lost privileges in April and the lack of my favorite activity is causing back pain,

3 neck stiffness and headaches and would like some motrin renewed.” (Id.) The report by Nurse

4 Kromann states no follow-up required, no protocol meds given and plaintiff encouraged to drink

5 2 liters of water a day and submit a 7362 as needed. (Id.) The report also described plaintiff’s

6 mode of disposition as “ambulatory.” (Id.) An entry in the records by Nurse Kromann also

7 states, “Pain Present: No actual or suspected pain.” (Id. at 8.) The report also states that plaintiff

8 reported, “still taking motrin as needed for pain.” (Id.)

9 Also attached to the opposition as exhibit B is a medical record from May 30, 2018. (Id.

10 at 6.) In this record, plaintiff complained of back, neck and head pain. (Id.) Plaintiff was

11 prescribed “OTC Motrin.” (Id. at 7.)

12 Plaintiff also includes a record from July 9, 2020, where plaintiff reported, “I don’t have

13 normal program yet and it feels like am weighing weight and like my whole body is ha[v]ing

14 muscle atrophy. And my upper back was bur[n]ing a lot Sunday morning from somebody

15 accidentally elbowing me.” (Id. at 9.)

16 The medical records discussed above contain plaintiff’s opinion that he suffered pain and

17 other symptoms due to inadequate exercise. The records do not state that the nurse or other

18 medical provider found that plaintiff’s pain and/or other symptoms were caused by inadequate

19 exercise. The undersigned cannot consider plaintiff’s opinion as a lay witness that the symptoms

20 described above were caused due to inadequate exercise. See Fed. R. Evid. 701. For these

21 reasons, the undersigned finds that the medical records attached to the opposition do not

22 demonstrate that plaintiff suffered pain and other physical symptoms due to inadequate outdoor

23 exercise during the disciplinary period.

24 In his opposition, plaintiff cites Zaiza v. Clark, 2021 WL 632607 (E.D. Cal. Feb. 18,

25 2021), in support of his Eighth Amendment claim. In Zaiza, the court found that plaintiff stated a

26 potentially colorable Eighth Amendment claim for relief based on the allegation that plaintiff

27 received approximately two hours of out-of-cell exercise per week while he was on a modified

28 lockdown from September 28, 2018 through July 9, 2019. 2021 WL 632607, at *3, *10. During 25 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 26 of 43

1 the modified lockdown, the plaintiff in Zaiza also alleged that he was subject to restrictions for

2 work/education, attending self-help programming, restriction of canteen, dayroom telephone

3 calls, visits, family visits, packages, and other restrictions. Id. at *2. The plaintiff was allowed

4 one shower every third day. Id.

5 The facts of Zaiza are different from the facts alleged by plaintiff in the instant action.

6 The plaintiff in Zaiza suffered more restrictions than plaintiff in the instant action, including

7 being on a modified lockdown. In the instant action, during the disciplinary period, plaintiff lived

8 in dorm-style housing, worked at his job, had dayroom access, etc. For these reasons, the

9 undersigned is not persuaded by plaintiff’s citation to Zaiza.

10 In his opposition, plaintiff also cites Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000). In

11 Lopez, the plaintiff alleged that he was denied access to outdoor exercise during six-and-one-half

12 weeks following an injury. Id. at 1132. The Ninth Circuit held that plaintiff’s allegations met the

13 objective component of an Eighth Amendment claim, citing Allen v. Sakai, 48 F.3d 1082, 1087-

14 88 (9th Cir. 1994). Id. at 1134.

15 In Allen v. Sakai, the plaintiff alleged that during a six-week period during his

16 confinement in the Security Housing Unit (“SHU”) he received only 45 minutes per week of

17 outdoor exercise. 48 F.3d at 1086. During this time, he was confined to his cell for almost

18 twenty-four hours per day. Id. at 1087. The Ninth Circuit concluded that the plaintiff met the

19 objective element of the Eighth Amendment analysis. Id.

20 The undersigned is not persuaded by plaintiff’s citation to Lopez. The plaintiff in Lopez

21 received no outdoor exercise based on an injury, whereas plaintiff in the instant action allegedly

22 received 2 hours and 16 minutes of outdoor exercise per week based on a serious rules violation

23 conviction. The undersigned also observes that the instant action is distinguishable from Allen.

24 The plaintiff in Allen was confined to his cell for almost twenty-four hours per day and received

25 only 45 minutes of outdoor exercise per week, whereas plaintiff in the instant action was not

26 confined to his cell twenty-four hours per day and allegedly received 2 hours and 16 minutes of

27 outdoor exercise per week.

28 //// 26 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 27 of 43

1 In his opposition, plaintiff argues that in Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979),

2 the Ninth Circuit held that inmates are entitled to 5 hours of outdoor exercise per week. (ECF

3 No. 99 at 11.) Plaintiff is incorrect. In Spain, the Ninth Circuit affirmed the district court order

4 directing defendants to provide plaintiffs with outdoor exercise, one hour per day, five days a

5 week, unless inclement weather, unusual circumstances or disciplinary needs made that

6 impossible. Id. at 199. In affirming the district court regarding exercise, the Ninth Circuit noted

7 the district court’s exhaustive examination of all the conditions to which the plaintiffs were

8 subjected including continuous segregation, spending virtually 24 hours per day in their cells with

9 only meager out-of-cell movements and corridor exercise, minimal contact with other people, etc.

10 Id. The Ninth Circuit in Spain did not hold that the Constitution guarantees all inmates 5 hours of

11 outdoor exercise per week.

12 In their summary judgment motion, defendants cite Pierce v. County of Orange, 526 F.3d

13 1190 (9th Cir. 2008). In Pierce, a Fourteenth Amendment case involving pretrial detainees, the

14 Ninth Circuit held that providing ninety minutes of exercise per week to inmates in administrative

15 segregation who spent twenty-two hours or more in their cells was unconstitutional. Id. at 1208,

16 1212. In Pierce, the Ninth Circuit also observed that the County provided nothing more to justify

17 the almost complete denial of exercise than a generalized reference of institutional security

18 concerns. Id. at 1212-13. The Ninth Circuit “declined to ‘hold that there is a specific minimum

19 of weekly exercise that must be afforded to detainees who spend the bulk of the time inside their

20 cells,’ but ordered that the inmate must be permitted to exercise at least two times each week for

21 at least two hours per week.” Id. at 1212-13. The undersigned observes that the Ninth Circuit in

22 Pierce did not specify whether the exercise was indoor or outdoor.

23 Defendants argue that plaintiff claims he received the same amount of exercise as the

24 Ninth Circuit ordered in Pierce.

25 Assuming that plaintiff received 2 hours and 16 minutes of outdoor exercise per week

26 during the disciplinary period, as alleged by plaintiff in the opposition, plaintiff received the same

27 amount of outdoor exercise as the Ninth Circuit ordered in Pierce. Plaintiff received the

28 restriction on his daytime yard access as punishment for his conviction for a serious rule 27 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 28 of 43

1 violation. Unlike the detainees in Pierce, plaintiff was not confined to his cell for twenty-two

2 hours or more during the disciplinary period. During the disciplinary period, plaintiff lived in a

3 dorm setting rather than a cell, worked at his job, and had access to the dayroom, the phone and

4 showers. 9 Considering the totality of the circumstances, the undersigned finds that plaintiff’s

5 alleged access to outdoor exercise for two hours and 16 minutes per week during the 90 days

6 disciplinary period did not violate the Eighth Amendment. Accordingly, defendants’ motion for

7 summary judgment on these grounds should be granted.

8 Defendants also move for summary judgment on the subjective component of plaintiff’s

9 Eighth Amendment claim. Defendants argue that they did not act with deliberate indifference

10 because there was a penological justification for plaintiff’s temporary loss of daytime yard

11 privileges. The undersigned need not reach this argument because defendants are entitled to

12 summary judgment on the objective component of plaintiff’s Eighth Amendment claim.

13 D. Qualified Immunity

14 Defendants move for summary judgment on the grounds that they are entitled to qualified

15 immunity as to plaintiff’s constitutional claims.

16 In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-pronged test to

17 determine whether qualified immunity exists. First, the court asks: “Taken in the light most

18 favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated

19 a constitutional right?” Id. at 201. If “a violation could be made out on a favorable view of the

20 parties’ submissions, the next, sequential step is to ask whether the right was clearly established.”

21 Id. To be “clearly established,” “[t]he contours of the right must be sufficiently clear that a

22 reasonable official would understand that what he is doing violates that right.” Id. at 202 (internal

23 quotation marks and citation omitted). Accordingly, for the purposes of the second prong, the

24 dispositive inquiry “is whether it would be clear to a reasonable officer that his conduct was

25 unlawful in the situation he confronted.” Id. Courts have the discretion to decide which prong to

26 9 27 While the record contains no evidence demonstrating that the day room was designed for exercise, plaintiff’s access to the day room is still relevant to the undersigned’s determination of 28 plaintiff’s Eighth Amendment claim. 28 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 29 of 43

1 address first, in light of the particular circumstances of each case. See Pearson v. Callahan, 555

2 U.S. 223, 236 (2009).

3 Because the undersigned finds no violation of plaintiff’s Eighth and Fourteenth

4 Amendment rights, the undersigned need not address qualified immunity any further.

5 E. Plaintiff’s State Law Claims

6 Plaintiff raises negligence claims based on the allegations alleged in support of his Eighth

7 Amendment and Fourteenth Amendment due process claims discussed above. (ECF No. 49 at

8 11-12.) Defendants move for summary judgment as to plaintiff’s state law claims on three

9 grounds: 1) the claims are barred by the statute of limitations; 2) the claims were not adequately

10 raised in the state tort claim; and 3) the claims are not actionable.

11 In his opposition, plaintiff states that defendants are entitled to summary judgment as to

12 his state law claim based on inadequate outdoor exercise because he did not include this claim in

13 his state tort claim. (ECF No. 99 at 7.) Accordingly, the undersigned recommends that

14 defendants’ be granted summary judgment as to this state law claim on these grounds.

15 The undersigned herein finds that plaintiff failed to adequately raise his state law claim

16 based on the alleged due process violations in his state tort claim. For this reason, the

17 undersigned need not address defendants’ arguments that this claim is not actionable and barred

18 by the statute of limitations.

19 Legal Standard for Complying with California Government Claims Act

20 “The Tort Claims Act requires that any civil complaint for money or damages first be

21 presented to and rejected by the pertinent public entity.” Munoz v. California, 33 Cal.App.4th

22 1767, 1776 (1995). The purpose of this requirement is “to provide the public entity sufficient

23 information to enable it to adequately investigate claims and to settle them, if appropriate, without

24 the expense of litigation,” City of San Jose v. Superior Court, 12 Cal.3d 447, 455 (1974)

25 (citations omitted), and “to confine potential governmental liability to rigidly delineated

26 circumstances: immunity is waived only if the various requirements of the Act are satisfied,”

27 Nuveen Mun. High Income Opportunity Fund v. City of Alameda, Cal., 730 F.3d 1111, 1125 (9th

28 Cir. 2013). Compliance with this “claim presentation requirement” constitutes an element of a 29 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 30 of 43

1 cause of action for damages against a public entity or official. State v. Superior Court (Bodde),

2 32 Cal.4th 1234, 1244 (2004). In the state courts, “failure to allege facts demonstrating or

3 excusing compliance with the claim presentation requirement subjects a claim against a public

4 entity to a demurrer for failure to state a cause of action.” Id. at 1239 (fn.omitted).

5 Federal courts likewise must require compliance with the California Government Claims

6 Act for pendant state law claims that seek damages against state public employees or entities.

7 Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir.1995). State tort

8 claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may proceed only if the

9 claims were first presented to the state in compliance with the claim presentation requirement.

10 Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 9th Cir.1988).

11 Substantive Requirements of Government Claims Act

12 “’[A tort] claim served on a governmental entity must fairly describe what that entity is

13 alleged to have done.’” Fleeman v. County of Kern, 2021 WL 5514498, at *2 (E.D. Cal. Nov. 24,

14 2021) (quoting Shoemaker v. Myers, 2 Cal.App.4th 1407, 1426 (1992)).

15 The written claim must include a “general description” of the alleged injury “so far as it

16 may be known at the time of presentation of the claim.” See Cal. Gov’t Code §§ 910, 945.4. It is

17 “not necessary that the claim comply with formal pleading standards” so long as it includes (1)

18 “the date, place and other circumstances of the occurrence or transaction which gave rise to the

19 claim,” (2) a “general description” of the “injury, damage, or loss incurred,” and (3) the “name or

20 names of the public employee or employees causing the injury,” if known. Blair v. Superior

21 Court, 218 Cal. App. 3d 221, 224 (1990).

22 In the relevant tort claim, i.e., Claim No. 18009022, plaintiff named the employees against

23 whom the suit was filed as defendant Wise, Sergeant Pierscinski, Correctional Officer

24 Broadstone, Officer Zuniga and Warden Neuschmid. (ECF No. 90-4 at 29.) Plaintiff described

25 the date of the incident as April 23, 2018 to May 7, 2018. (Id.) Plaintiff described the damage or

26 injury as, “Property damage to personal property, violation of First and Fourteenth Amendment

27 rights, retaliation, infliction of emotional distress, etc.” (Id. at 30.) Plaintiff described the

28 circumstances that led to his injuries as follows: 30 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 31 of 43

1 At a disciplinary hearing complainant expressed to Wise that he would be exercising his 14th Amendment procedural due process 2 rights. Wise called Pierscinski. Broadstone, and Zuniga into the [sic] as backup. They sat in on the remainder of the hearing at which Wise 3 denied the procedural rights that were due. The defendants reached a meeting of the minds to retaliate for the attempted exercise of those 4 rights which culminated May 7 when Zuniga drafted a false RVR against complainant, and Broadstone violently ransacked his 5 personal belongings. Administrative defendants then sanctioned the illegal conduct on direct administrative appeal. 6

8 Claim No. 18009022 alleged that defendant Wise violated plaintiff’s right to due process

9 at the same disciplinary hearing challenged in the instant action. However, in his tort claim,

10 plaintiff did not allege how defendant Wise allegedly violated his due process rights. “[A] claim

11 filed in anticipation of litigation must set forth all the legal and factual bases that will be asserted

12 in any subsequent lawsuit.” Doe 1 v. City of Murrieta, 102 Cal.App.4th 899, 920 (2002),

13 disapproved on other grounds by deVillers v. County of San Diego, 156 Cal.App.4th 238 (2007)

14 and Brown v. USA Taekwondo, 276 Cal.Rptr.3d 434 (2021); Watson v. State of California, 21

15 Cal.App.4th 836, 845 (1993) (the claims statute can be satisfied only by a timely writing setting

16 forth the factual basis of the purported liability of the public entity).

17 The undersigned finds that Claim No. 18009022 did not meet the requirements of the Tort

18 Claim Act because it alleged no facts regarding how defendant Wise allegedly violated plaintiff’s

19 due process rights. For this reason, defendants should be granted summary judgment as to

20 plaintiff’s negligence claim against defendant Wise based on the alleged due process violations at

21 the disciplinary hearing.

22 V. Plaintiff’s Summary Judgment Motion

23 A. Undisputed Facts

24 Plaintiff’s summary judgment motion contains a statement of 105 undisputed facts. (ECF

25 No. 94-2.) In the section of the findings and recommendations addressing the merits of plaintiff’s

26 summary judgment motion, the undersigned will address the disputed facts, where relevant.

27 1. Undisputed: Plaintiff, a prisoner in the custody of the CDCR, at all relevant times to this action was house at CSP-Sol. (ECF No. 28 107-3 at 2.) 31 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 32 of 43

1 2. Undisputed: As a prisoner, plaintiff is “subject to the rules and regulations of the Secretary, and to the procedures established 2 by the warden, superintendent, or regional parole administrator, responsible for the operation of that facility.” Cal. Code Regs. 3 tit. 15, § 3001. (Id.)

4 3. Disputed. (Id.)

5 4. Undisputed: Defendant Wise was employed by CDCR as a Correctional Lieutenant at all relevant times to this action. (Id.) 6 5. Undisputed: Defendant Wise’s duty included “maintaining 7 order and discipline in accordance with established procedures.” (Id.) 8 6. Undisputed: Defendant Wise’s duty included “[d]irect 9 supervision of …the maintenance of proper physical and sanitary conditions and [Wise] otherwise sees to the well-being 10 of inmates. (Id. at 3.)

11 7. Undisputed: Defendant Wise’s duties included being a member of the institutional disciplinary committee. (Id.) 12 8. Undisputed: Defendant Matteson was employed by CDCR as 13 Chief Deputy Warden of SOL at all times relevant to this action. (Id.) 14 9. Undisputed: Subject to the approval of the Secretary of 15 Corrections and Rehabilitation wardens, superintendents and parole region administrators will establish such operational 16 plans and procedures as are required by the Secretary for implementation of regulations and as may otherwise be required 17 for their respective operations. Such procedures will apply only to the inmates, parolees and personnel under the administrator. 18 (Id.)

19 10. Disputed. (Id.)

20 11. Disputed. (Id.)

21 12. Disputed. (Id. at 4.)

22 13. Disputed. (Id. at 4-5.)

23 14. Disputed. (Id. at 5.)

24 15. Undisputed: In a subsequent administrative grievance, Associate Warden S. Jackura characterized Officer Airey’s order 25 as “a direct order to move to an area not marked ADA” in the first level response to appeal log number CSP-S-18-00862. (Id. 26 at 6.)

27 16. Disputed. (Id.)

28 17. Disputed. (Id. at 7.) 32 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 33 of 43

1 18. Disputed. (Id. at 8.)

2 19. Undisputed: CO Airey authored a document saying that plaintiff’s visit was terminated and ordered plaintiff to be 3 handcuffed. 10 (Id. at 9.)

4 20. Undisputed: Plaintiff complied by submitting to handcuffs. (Id.) 5 21. Undisputed: Plaintiff was issued a RVR in connection with the 6 events in the visiting room on March 31, 2018. (Id. at 10.)

7 22. Undisputed: Defendant Wise presided over the hearing of the charges on April 23, 2018. (Id.) 8 23. Undisputed: Plaintiff requested to present the video surveillance 9 recordings from the SOL visiting room in defense of the charges at the April 23 hearing. (Id.) 10 24. Undisputed: Plaintiff may present documentary evidence in 11 defense or mitigation of charges. 11 (Id.)

12 25. Undisputed: According to defendant Wise, visiting was contacted regarding plaintiff’s request and no video was 13 available for this incident per visiting Lt. Rubalcaba on April 23, 2018. (Id.) 14 26. Undisputed: The ISU manages the storage of video surveillance 15 recordings. (Id.)

16 27. Undisputed: In response to plaintiff’s request for production of documents, defendant Wise stated that, after conducting a 17 search, he could not locate the March 31, 2018 video footage. (Id.) 18 28. Disputed. (Id.) 19 29. Undisputed: Plaintiff requested to call inmate Maxwell as a 20 witness at the disciplinary hearing. (Id. at 11.)

21 30. Undisputed: Defendant Wise determined that plaintiff’s questions for inmate Maxwell were irrelevant. (Id.) 22 31. Undisputed: Inmates may request witnesses attend a 23 disciplinary hearing and the requested witnesses shall be called

24 10 In undisputed fact no. 19, plaintiff contends that, “CO Airey authored a document saying that plaintiff’s visit was terminated and ordered plaintiff to be handcuffed.” (ECF No. 107-3 at 9.) 25 Defendants state that they do not dispute plaintiff’s undisputed fact no. 19, per Officer Airey’s 26 RVR. (Id.) 11 27 In undisputed fact no. 24, plaintiff contends that he has a “procedural right” to present documentary evidence, whereas defendants cite Cal. Code Regs. tit. 15, § 3320(l) as the source of 28 the authority for plaintiff to present documentary evidence. (ECF No. 107-3 at 10.) 33 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 34 of 43

1 unless the hearing officer denies the request for one of the following reasons: 1) the appearance would endanger the 2 witness; 20 the official determines that the witness has no relevant information; or 3) the witness is unavailable. (Id.) 3 32. Undisputed: Plaintiff explained to defendant Wise that his 4 defense was based upon the regulation that he is only subject to orders authorized by law. (Id.) 5 33. Undisputed: In the evidence section of plaintiff’s RVR, 6 defendant Wise commented, “Per Title 15 General Visiting Section 3170(f) reasonable accommodation shall be afforded 7 visitors and inmates with disabilities to facilitate their full participation in contact, non-contact, or family visiting as 8 provided in these rules. All ADA table are spray painted with lettering indicating ADA only on them. Inmate Witkin was 9 preventing the aforementioned by occupying the ADA table with his visitors when no ADA accommodation was needed and 10 therefore required Officer to give a direct order to move from the ADA table which Inmate Wilkin did not comply. (Id. at 11-12.) 11 34. Disputed. (Id. at 12.) 12 35. Undisputed: Defendant Wise deemed plaintiff’s question no. 4 13 irrelevant. (Id.)

14 36. Disputed. (Id.)

15 37. Disputed. (Id.)

16 38. Undisputed: Defendant Wise denied the presentation of the declaration testimony Beverly M. Daria deeming that she did not 17 have “any information relevant to the charge.” (Id.)

18 39. Disputed. (Id. at 13.)

19 40. Undisputed: Defendant Wise wrote by hand on the “Loss of Privileges” worksheet “loss of Day yard due to inmate work 20 schedule.” (Id.)

21 41. Undisputed: Defendant Wise did not assess loss of evening yard instead of day yard “[b]ecause plaintiff was scheduled to be 22 working during evening yard hours five days per week, a disciplinary imposition of a loss of evening privileges would not 23 have been proportionate to the severity of plaintiff’s rules violation.” (Id.) 24 42. Undisputed: The disciplinary disposition created by defendant 25 Wise left plaintiff with evening yard on his days off , Saturday and Sunday. (Id.) 26 43. Disputed. (Id.) 27 44. Undisputed: Plaintiff was not placed into Privilege Group C. 28 (Id. at 14.) 34 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 35 of 43

1 45. Undisputed: Plaintiff wrote a CDCR Form 22 stating that defendant Wise, “violated all his due process rights” and “issued 2 illegal punishment.” (Id. at 14.)

3 46. Undisputed: In the form 22 plaintiff wrote that, “as a third watch worker, I cannot lose day yard as that would deprive me of all 4 outdoor exercise in violation of the Eighth Amendment.” (Id.)

5 47. Disputed. (Id.)

6 48. Disputed. (Id.)

7 49. Disputed. (Id.)

8 50. Undisputed: Plaintiff received his April 24 CDCR 22 form back from defendant Wise, which was signed by Wise on May 9, and 9 stated “you are to address the issues above via inmate appeals process 602 as I informed you.” (Id.) 10 51. Disputed. (Id. at 15.) 11 52. Disputed. (Id.) 12 53. Disputed. (Id.) 13 54. Undisputed: The Building 14 log book shows “the yard opening 14 and closing times for the requested time frame for plaintiff’s building.” (Id.) 15 55. Disputed. (Id. at 15-16.) 16 56. Disputed. (Id. at 16.) 17 57. Undisputed: Institutional Operations Plan (IOP) CSPS-L3-18- 18 114 governs the minimum amount of outdoor exercise for SOL inmates placed into Privilege Group C as a result of the 19 disciplinary process. (Id. at 16-17.)

20 58. Undisputed: IOP CSPS-L3-19-114 applies to all SOL inmates and personnel. (Id. at 17.) 21 59. Undisputed: Defendant Matteson reviewed and signed IOP 22 CSPS-L3-18-114 which took effect on February of 2018. (Id.)

23 60. Undisputed: Defendant Wise is “responsible for the daily adherence to the policies and procedures defined in [IOP CSPS- 24 L3-18-114].” (Id.)

25 61. Undisputed: “CCR, Title 15, § 3044 authorizes the following privileges for inmates assigned to Privilege Group C: 26 …[o]ffered no less than ten hours of exercise in an outdoor or covered/enclosed setting each week. Dayroom access shall not 27 be counted towards the ten hours of exercise.” (Id.)

28 62. Disputed. (Id.) 35 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 36 of 43

1 63. Disputed. (Id.)

2 64. Disputed. (Id. at 18.)

3 65. Disputed. (Id. at 18-19.)

4 66. Undisputed: On April 4, 2018, plaintiff submitted an administrative appeal CSPS-18-862, which was received by the 5 SOL appeals office April 5, 2018. (Id. at 19.)

6 67. Undisputed: In CSPS 18-862 plaintiff alleged “Staff misconduct” regarding the performance of CO Airey at his 7 March 31, 2018 social visit. Plaintiff requested disciplinary action against Airey and reimbursement of his “excessive 8 distance” visitor’s travel and lodging.” (Id.)

9 68. Disputed. (Id.)

10 69. Undisputed: Defendant Matteson had the responsibility to decide whether or not to process CSPS 18-862 as a staff 11 complaint or a routine appeal. (Id.)

12 70. Disputed. (Id.)

13 71. Undisputed: Defendant Matteson refused to process CSPS 18- 862 as a staff complaint on April 6, 2018 and plaintiff’s appeal 14 was rejected. (Id.)

15 72. Undisputed: Plaintiff resubmitted CSPS-18-862 and it was again not processed as a staff complaint. (Id. at 20.) 16 73. Undisputed: Plaintiff resubmitted CSPS-18-862 on April 25, 17 2018. (Id.)

18 74. Undisputed: On April 27, 2013, CSPS-18-862 was rejected a third time. (Id.) 19 75. Undisputed: Plaintiff resubmitted CSPS-18-862 on June 2, 2018 20 with the “misconduct” allegations lined out. On June 5 it was again rejected with a screening form stating that “[t]he Warden 21 has already reviewed your 602 and has determined that this 602 will not be filed as a staff complaint. The Warden has the final 22 determination and that is not appealable. You will need to make some clarifications for this 602 to be processed. (Id.) 23 76. Undisputed: Plaintiff resubmitted CSPS-18-862 on July 5, 24 2018, it was received by the SOL appeals office on July 5 and accepted and assigned for review on July 9, 2018. (Id.) 25 77. Undisputed: The First Level Response (FLR) characterized the 26 issue presented as “[t]he ADA table was given back, but Officer Airey also requested the chairs. The appellant claims to be 27 harassed by visiting Officer Airey and states that his authority is limited to enforcing the rules and the appellant was willing to do 28 whatever was in the Title 15. (Id. at 21.) 36 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 37 of 43

1 78. Undisputed: Officer Airey was interviewed in connection with the FLR. (Id.) 2 79. Disputed: (Id.) 3 80. Disputed. (Id.) 4 81. Disputed. (Id.) 5 82. Disputed. (Id. at 22.) 6 83. Undisputed: Plaintiff’s appeal to the FLR in CSPS 18-862 was 7 denied on July 28, 2018 the same day plaintiff was interviewed in connection with the appeal. (Id.) 8 84. Undisputed: Plaintiff appealed the CSPS 18-862 FLR to the 9 Second Level of review (SLR) on September 11, 2018 and it was accepted for review and assigned on September 12. (Id.) 10 85. Undisputed: The Assigned reviewer of CSPS 18-852 at the SLR 11 was defendant Matteson. (Id.)

12 86. Undisputed: In CSPS 18-862, plaintiff stated that “[t]he FLR is a discredit to the CDCR and the People of California. The FLR 13 is incapable of understanding the limited scope of staff authority. CCR § 3001. At no time in the history of this Nation have state 14 officers been granted rule making authority, and that continues to be the case.” (Id.) 15 87. Undisputed: Plaintiff stated in CSPS 18-862 SLR appeal that 16 “[s]taff’s ongoing refusal to review the surveillance video is prima facie evidence that they know of Airey’s guilt and 17 appellant’s factual innocence. It was also a violation of his 14th Amendment rights under Wolff v. McDonnell, 418 U.S. 539 18 (1974) to refuse to introduce the tape in the disciplinary context. If your [sic] in the right why the cover-up (the same tape was 19 used to convict numerous inmates).” (Id.)

20 88. Undisputed: Plaintiff stated in CSPS 18-362 SLR appeal that “[s]taff’s reliance on DOM is unavailing. The DOM does not 21 purport to give C/O’s rulemaking authority, nor could it. The section cited by the FLR authorizes enforcement of ‘laws 22 …CDCR policies or regulations.’ In other words, a mere C/O only has the authority to order an inmate to do something 23 required by properly promulgated legal authority.” (Id. at 23.)

24 89. Undisputed: Defendant Matteson identified the issue presented in CSPS 18-862 as the “scope of staff authority citing CCR 25 section 3001” and acknowledged plaintiff’s allegation that “staff is refusing to review the surveillance video and is covering up 26 the incident.” Matteson further stated that “[t]he appellant believes Officer Airey has no authority to make his own rules.” 27 (Id.)

28 90. Undisputed: In the “Discussion” section of the CSPS 18-862 37 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 38 of 43

1 SLR defendant Matteson stated that “[t]he appellant stated in his own words that he refused to relinquish the chairs for the ADA 2 table by stating that Officer Airey did not need to claim the chairs appellant and visitors were using when a stack of chairs 3 were unused and available in the area.” (Id.)

4 91. Disputed. (Id.)

5 92. Undisputed: Defendant Matteson denied CSPS 18-862 at the SLR stating that “Officer Airey did not violate any policies in 6 the handling of this matter.” (Id. at 24.)

7 93. Undisputed: CDCR adopted defendant Matteson’s SLR decision, in which she was acting as the Warden, as the Third 8 Level Response (TLR) which exhausted plaintiff’s administrative remedies. (Id.) 9 94. Undisputed: On May 25, 2018 plaintiff submitted 10 administrative appeal CSPS 18-1331 which was received by the SLR appeals office on May 29, 2018. (Id.) 11 95. Undisputed: In CSPS 18-1331 defendant Matteson was 12 reviewing a set of issues stemming from a March 31, 2019 incident in the SOL visiting room, which she had initially been 13 put on notice on April 6, 2018 by CSPS 13-862. (Id.)

14 96. Undisputed: In CSPS 18-1331, plaintiff alleged that he had been subjected to “U.S./California Constitutional Violations” as well 15 as violations of 15 CC § 3001, 3320(1), and “Unlawful discipline/disciplinary hearing procedures” and “Illegal 16 punishments” in connection with RVR 4855228. (Id.)

17 97. Undisputed: In CSPS 18-1331, plaintiff stated that defendant Wise was “intentionally denying [him] all outdoor exercise even 18 after [plaintiff] explained to him that it was illegal.” (Id.)

19 98. Undisputed: At his disciplinary hearing, plaintiff sought to present witnesses and surveillance video. (Id.) 20 99. Undisputed: Defendant Wise determined that the video 21 evidence was unavailable and decided to proceed without it. (Id.) 22 100. Disputed. (Id. at 25.) 23 101. Undisputed: Defendant Wise knew that the disciplinary 24 disposition he created offered plaintiff a potential maximum of 3 hours and 40 minutes of weekly outdoor exercise. (Id.) 25 102. Disputed. (Id.) 26 103. Disputed. (Id.) 27 104. Disputed. (Id. at 25-26.) 28 38 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 39 of 43

1 105. Disputed. (Id. at 26.)

2 B. Plaintiff’s Due Process Claims

3 In analyzing plaintiff’s due process claim, the undersigned considers the legal standard for

4 due process in disciplinary hearings set forth above in the section addressing defendants’

5 summary judgment motion as to this claim.

6 Although plaintiff did not present a copy of the RVR or defendant Wise’s Disciplinary

7 Hearing Results report in support his summary judgment motion, plaintiff submitted several

8 grievances describing the RVR and defendant Wise’s report. The descriptions in the grievances

9 of the RVR and defendant Wise’s report are consistent with the RVR and Disciplinary Hearing

10 Results report submitted by defendants and discussed above.

11 In his summary judgment motion, plaintiff argues that Officer Airey’s order to “give up

12 your chairs” and “move to an area not marked ADA” was unlawful. 12 (ECF No. 94-1 at 11-12.)

13 As he did in his opposition to defendants’ summary judgment motion, plaintiff contends that he

14 could not comply with Officer Airey’s order to move because there were no chairs or areas

15 marked ADA or “not ADA” in the visiting room. (Id. at 12.)

16 As discussed above, plaintiff’s argument that he could not comply with Officer Airey’s

17 order to move to the general seating area because no area or chairs in the visiting room were

18 designated ADA or “not ADA” is without merit. A reasonable person would understand Officer

19 Airey’s order to be to move to a table not marked ADA.

20 Plaintiff argues, as he did in his opposition to defendants’ summary judgment motion, that

21 Officer Airey’s order to give up the chairs was illegal because there were many chairs stacked

22 against the wall. (Id.) The undersigned again finds that even if there were many chairs stacked

23 against the wall, plaintiff was required to obey the order to leave the chairs and move to a table

24 not marked ADA. Cal. Code Regs. title 15, § 3005(b) (inmates must promptly and courteously

25 obey written and verbal orders); Lopez v. Galaza, 2006 WL 3147686, at *11 (E.D. Cal. Nov. 1,

26 12 27 As discussed above, in his summary judgment motion plaintiff does not argue that defendant Wise violated his due process rights in connection with his ability to present evidence regarding 28 his compliance with Officer Airey’s second order. 39 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 40 of 43

1 2006) (Section 3005(b) contains no exception to the requirement that inmates promptly and

2 courteously obey written and verbal orders from staff); Lewis v. Downey, 581 F.3d 467, 476 (7th

3 Cir. 2009).

4 In his summary judgment motion, plaintiff argues that defendant Wise wrongly excluded

5 his questions to inmate Maxwell and Officer Airey, the Daria declaration and the surveillance

6 video. (Id. at 12-13.) Plaintiff argues that this evidence was relevant to his defense that he

7 complied with Officer Airey’s lawful order to give up the ADA table. (Id.) Plaintiff’s arguments

8 are based on the same evidence cited in his opposition to defendants’ summary judgment motion.

9 (Id.)

10 In the opposition, defendants argue that the excluded evidence was not relevant because it

11 concerned plaintiff’s defense that Officer Airey’s first order was unlawful. (ECF No. 107 at 5-6.)

12 Plaintiff does not dispute that he disobeyed Officer Airey’s orders to give up the chairs

13 and move to a table that was not designated ADA. The excluded evidence did not disprove

14 plaintiff’s failure to comply with these orders. Therefore, defendant Wise properly excluded this

15 evidence on the grounds that it was not relevant to whether plaintiff disobeyed Officer Airey’s

16 order. For these reasons, plaintiff’s motion for summary judgment as to his due process claim

17 against defendant Wise should be denied.

18 C. Plaintiff’s Eighth Amendment Claim

19 In analyzing plaintiff’s summary judgment motion as to his Eighth Amendment claim, the

20 undersigned considers the legal standard set forth above in the section addressing defendants’

21 summary judgment motion as to this claim.

22 Plaintiff moves for summary judgment on the objective and subjective requirements of an

23 Eighth Amendment claim. In support of his motion based on the subjective requirements,

24 plaintiff argues that defendant Wise knew that he violated federal law when he imposed the

25 limitations on plaintiff’s access to the day yard following the disciplinary hearing. (ECF No. 94-1

26 at 11.) Plaintiff argues that defendant Matteson knew that he violated federal law when he upheld

27 defendant Wise’s decision limiting plaintiff’s access to the day yard. (Id.)

28 //// 40 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 41 of 43

1 The undersigned need not address plaintiff’s arguments regarding whether defendants met

2 the subjective requirements for an Eighth Amendment claim because, for the reasons stated

3 herein, plaintiff is not entitled to summary judgment based on the objective requirements.

4 Plaintiff argues that defendants Wise and Matteson denied his constitutional right to

5 outdoor exercise by offering him an average of 2 hours and 16 minutes per week during the 90

6 days disciplinary period. (ECF No. 94-1 at 6.) Plaintiff’s arguments and evidence in support of

7 this claim are largely the same as those submitted in support of his opposition to defendants’

8 summary judgment motion.

9 In his summary judgment motion, plaintiff cites his second amended complaint as

10 evidence of the physical ailments he suffered as a result of the alleged inadequate exercise. 13

11 (ECF No. 94-2 at 9 (plaintiff’s undisputed facts nos. 64, 65).)

12 In the second amended complaint, plaintiff alleged that he suffered back and neck pain,

13 stiffness, soreness, muscle atrophy, energy loss, shortness of breath, headaches, lethargy, loss of

14 range of motion, humiliation, degradation, emotional distress, mental distress and depression due

15 to inadequate exercise. (ECF No. 49 at 10.)

16 As discussed above, the determination of the medical causes of plaintiff’s symptoms

17 described in the second amended complaint involve matters that are scientific, technical or

18 require specialized knowledge. Accordingly, the court cannot consider plaintiff’s opinion as a lay

19 witness that the symptoms described above were caused due to inadequate exercise. See Fed. R.

20 Evid. P. 701.

21 In his summary judgment motion, plaintiff again argues that in Spain v. Procunier, 600

22 F.2d 189 (9th Cir. 1979), the Ninth Circuit held that the constitution requires that inmates receive

23 no less than five hours of outdoor exercise per week. (ECF No. 94-1 at 13.) As discussed above,

24 in Spain v. Procunier, the Ninth Circuit did not hold that inmates are constitutionally entitled to

25 no less than five hours per week of outdoor exercise.

27 13 Plaintiff did not submit the medical records he submitted with his opposition to defendants’ 28 summary judgment motion. 41 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 42 of 43

1 In the opposition, defendants argue that plaintiff’s claim of 2 hours and 16 minutes per

2 week of outdoor exercise during the 90 days disciplinary period did not violate the Eighth

3 Amendment. (ECF No. 107 at 2.) In support of this argument, defendants cite Pierce v. County

4 of Orange, 526 F.3d 1190 (9th Cir. 2008), where the Ninth Circuit found that two hours of

5 exercise per week for pretrial detainees who spent twenty-two hours or more in their cells was

6 constitutional. Id. at 1212-13. In Pierce, the Ninth Circuit also observed that the County

7 provided nothing more to justify the almost complete denial of exercise than a generalized

8 reference of institutional security concerns. Id. at 1212-13.

9 In the opposition, defendants do not address the other activities available to plaintiff

10 during the disciplinary period, discussed in their summary judgment motion. As discussed above,

11 during the disciplinary period plaintiff lived in an open dormitory, continued his work as a porter,

12 had access to the dayroom, etc.

13 Despite the lack of evidence regarding plaintiff’s access to other activities during the

14 disciplinary period, the undersigned does not find that the plaintiff’s access to 2 hours and 16

15 minutes of outdoor exercise per week for 90 days as punishment for committing a serious rules

16 violation violated the Eighth Amendment. Pierce, supra. Accordingly, plaintiff’s motion for

17 summary judgment as to his Eighth Amendment claim should be denied.

18 D. State Law Claims

19 Plaintiff moves for summary judgment as to his state law negligence claims against

20 defendant Wise. (ECF No. 94-1 at 14.) Plaintiff argues that he has a procedural right under

21 California law to present documentary evidence, present witness testimony and to question

22 witnesses. (Id. at 12.) Plaintiff argues that defendant Wise breached his duty to allow plaintiff to

23 present the surveillance video and Daria declaration and to ask inmate Maxwell and Officer Airey

24 questions. (Id.)

25 As discussed above, defendants should be granted summary judgment as to this claim

26 because plaintiff failed to present the factual basis of this claim in his tort claim. For this reason,

27 plaintiff may not proceed on his negligence claim against defendant Wise. Accordingly,

28 plaintiff’s motion for summary judgment as to his negligence claim against defendant Wise 42 Case 2:19-cv-00974-KJM-KJN Document 112 Filed 02/08/22 Page 43 of 43

1 should be denied.

2 Accordingly, IT IS HEREBY RECOMMENDED that:

3 1. Defendants’ summary judgment motion (ECF No. 90) be granted; and

4 2. Plaintiff’s summary judgment motion (ECF No. 94) be denied.

5 These findings and recommendations are submitted to the United States District Judge

6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

7 after being served with these findings and recommendations, any party may file written

8 objections with the court and serve a copy on all parties. Such a document should be captioned

9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

10 objections shall be filed and served within fourteen days after service of the objections. The

11 parties are advised that failure to file objections within the specified time may waive the right to

12 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

13 Dated: February 7, 2022

20 Wit974.sj(4) 21

28 43