Free Motion for Summary Judgment - District Court of California - California

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EDMUND G. BROWN JR. Attorney General of the State of California DAVID S. CHANEY Chief Assistant Attorney General FRANCES T. GRUNDER Senior Assistant Attorney General THOMAS S. PATTERSON Supervising Deputy Attorney General TRACE 0 . MAIORINO, State Bar No. 179749 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5975 Fax: (415) 703-5843 Email: [email protected] Attorneys for Defendants Lemon, Ayers, Tilton, Ebert, Ortiz, Plyrnesser, Robinson, Ratliff, and Grannis

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
GREGORY TABAREZ,

C 07-4920 JF (PR) Plaintiff,
DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MOTION TO DISMISS; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

v.
JAMES TILTON, et al.,

Defendants.

Defs.' Mot. Sumrn. J. &Mot. Dismiss; Supp'g Mem. P. & A .

G. Tabarez v. J. Tilton, et al.
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TABLE OF CONTENTS

Page INTRODUCTION STATEMENT OF THE ISSUES STATEMENT OF THE CASE STATEMENT OF FACTS ARGUMENT I. LEGAL STANDARD. A. B. Summary Judgment. Motion to Dismiss.

11. THERE IS INSUFFICIENT EVIDENCE THAT DEFENDANTS VIOLATED PLAINTIFF'S CONSTITUTIONAL RIGHTS. A. There is No Evidence that Defendants Wrongfully Retaliated Against Plaintiff for Exercising His First Amendment Rights. B. Plaintiff May Not Sustain Claims Against Defendants Tilton, Ayers, Grannis, Ortiz, Ebert, Plyrnesser, Robinson, or Ratliff Because He Has Failed to Show That They Were Directly Involved in His Alleged Deprivation.

.

III. Defendants Tilton, Ayers, Grannis, and Ortiz May Not Be Held Liable for Denying Plaintiffs Grievances Because Inmates Do Not Have a Constitutional Right to the Administrative-Appeals Process.

IV. Even If the Court Were to Find a Constitutional Violation, Defendants Are Entitled to Qualified Immunity Because a Reasonable Officer Could Have Believed that Defendants' Conduct Was Lawhl.
CONCLUSION
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TABLE OF AUTHORITIES

2 3 Cases 4 Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986) 5 Baker v. McCollan 6 443 U.S. 137 (1979) 7 Barnett v. Centoni 31 F.3d 813 (9th Cir. 1994) 8 Buckley v. Barlow 9 997 F.2d 494 (8th Cir. 1993) 10 Celotex Corp. v. Catrett 477 U.S. 317 (1986) 11 Hansen v. Black 12 885 F. 2d 642 (9th Cir. 1978) 13 Harlow v. Fitzgerald 457 U.S. 800 (1982) 14 Hunter v. Bryant 15 502 U.S. 224 (1991) 16 Ivey v. Bd. of Regents of the Univ. of Alaska 673 F. 2d 266 (9th Cir. 1982) 17 Jefers v. Gomez 18 267 F.3d 895 (9th Cir. 2001) 19 Leer v. Murphy 844 F. 2d 628 (9th Cir. 1988) 20 Montanye v. Haymes 21 427U.S.236(1976) 22 Navarro v. Block 250 F.3d 729 (9th Cir. 2001) 23 Pratt v. Rowland 24 65 F.3d 802 (9th Cir. 1995) 25 Ramirez v. Galaza 334 F.3d 850 (9th Cir. 2003) 26 Rhodes v. Robinson 27 408 F.3d 559 (9th Cir. 2005)
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TABLE OF AUTHORITIES (continued) Page

Saucier v. Katz 533 U.S. 194 (2001) Schroeder v. McDonald 55 F.3d 454 (9th Cir. 1995)
Constitutional Provisions

: 11

12

United States Constitution First Amendment
Statutes

United States Code, Title 42 1983
Court Rules

Federal Rule of Civil Procedure rule 12(b)(6) rule 56 rule 56(c) rule 56(e)
Other Authorities

California Code Regulations, Title 15 g 3377

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EDMLTND G. BROWN J . R Attorney General of the State of California DAVID S. CHANEY Chief Assistant Attorney General FRANCES T. GRUNDER Senior Assistant Attorney General THOMAS S. PATTERSON Supervising Deputy Attorney General TRACE 0. MAIORINO, State Bar No. 179749 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5975 Fax: (415) 703-5843 Email: [email protected] Attorneys for Defendants Lemon, Ayers, Tilton, Ebert, Ortiz, Plymesser, Robinson, Ratliff, and Grannis

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
I

SAN JOSE DIVISION
GREGORY TABAREZ,

C 07-4920 JF (PR) Plaintiff,
DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MOTION TO DISMISS; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

v.
JAMES TILTON, et al.,
.

Defendants.

TO PLAINTIFF GREGORY TABAREZ, IN PRO SE: PLEASE TAKE NOTICE that under Federal Rule of Civil Procedure 56, Defendants Lemon, Ayers, Tilton, Ebert, Ortiz, Plymesser, Robinson, Ratliff, and Grannis (Defendants) move for summary judgment because there is no genuine issue of material fact and they are entitled to judgment as a matter of law. In addition, Defendants Tilton, Grannis, Ayers, and Ortiz move f& dismissal under Federal Rule of Civil Procedure 12@)(6)because there is no constitutional right to an administrative-appealsprocess. These motions are based on the memorandum of points and authorities, the supporting declarations, and the pleadings and
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records on file in this case.
INTRODUCTION

The officials are entitled to summary judgment because Plaintiff does nothing more than challenge a legitimate, precautionary measures taken by conscientious correctional staff. Specifically,prison officials transferred Plaintiff fiom one prison to another to ensure that correctional staff had no bearing on Plaintiffs lawsuit against Defendant Lemon and to prevent any possible allegation that officials' actions concerning him were somehow retaliatory. In an
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unrelated lawsuit, Plaintiff sued Defendant Lemon concerning a 2002 incident at Folsom State Prison. Following the 2002 incident, Plaintiff was transferred to California State Prison - San Quentin (San Quentin). In 2006, Defendant Lemon was promoted to Chief Deputy Warden at San Quentin. Soon after, a request was made to transfer Plaintiff from San Quentin as a means to
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protect Plaintiff, maintain the security of the institution, and avoid any negative consequences the lawsuit may have on Plaintiff, other inmates, or correctional staff. Despite Plaintiffs
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contentions, this transfer did not violate his constitutional rights because it sewed a legitimate penological purpose. Consequently, Defendants are entitled to summary judgment.
STATEMENT OF THE ISSUES

1.

To prevail on a claim under 42 U.S.C. 8 1983 for retaliation, Plaintiff must

establish that he was retaliated against for exercising a constitutional right, and that the retaliatory action was not related to a legitimate penological purpose. May Plaintiff hold Defendants liable for retaliation when he was transferred to ensure that Defendant Lemon's role as the Chief Deputy Warden had no bearing on Plaintiffs lawsuit against him and to prevent any possible allegation of perceived retaliation? 2. To state a claim for a constitutional violation, a plaintiff must set forth facts

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connecting each defendant to the loss the plaintiff claims to have suffered. May Plaintiff hold Defendants Tilton, Ayers, Grannis, Ortiz, Ebert, Plyrnesser, Robinson, or Ratliff liable for Claims of retaliation without showing that each defendant acted personally against him?
3.

1
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Qualified immunity protects officials from damages suits as long as their actions

did not violate clearly established federal rights. Could a reasonable official have believed that
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Defendants' conduct was lawful, thus entitling them to qualified immunity? 4. Inmates do not have a constitutional right to file prisoner administrative appeals or

inmate grievances. May Plaintiff hold Defendants Tilton, Grannis, Ayers, and Ortiz liable for denying his inmate appeals?
STATEMENT OF THE CASE

On September 21,2007, Plaintiff, a California state prisoner, filed his complaint pro se under 42 U.S.C. 1983 against prison officials at San Quentin and against officials at the

California Training Facility (CTF). In his complaint, Plaintiff alleges that Defendants violated his rights under the First Amendment because he was transferred from San Quentin to CTF. (Compl.) At the time of the allegations in the complaint, Defendant Tilton was the Secretary of CDCR, Defendant Ayers was the Warden at San Quentin, and Defendant Lemon served as the Chief Deputy Warden at San Quentin. In addition, Defendant Ebert served as a'correctional Counselor I who sat on the Unit Classification Committee (UCC) that referred Plaintiff for a transfer to CTF. Once at CTF, Defendants Plymesser, Robinson, and Ratliff sat on another UCC, and Defendant Ortiz reviewed an administrative appeal submitted by Plaintiff. Finally, Defendant Grannis served as the Director of the Inmate Appeals Branch that denied Plaintiffs inmate appeals. The Court found that Plaintiff had stated a cognizable claim of retaliation against these Defendants and allowed Plaintiff to proceed with his 1983. (Order of Service at 2.) The Court directed Defendants to file a dispositive motion no later than June 5,2008. (Id.)
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STATEMENT OF FACTS

1.

Plaintiff is a state prisoner, who appeared before a UCC at San Quentin on

December 4,2006. (Decl. Maiorino Ex. A, AGO-149.) The committee referred Plaintiff to the Classification Staff Representative for referral to another prison. (Id.) This referral for a transfer was because Plaintiff named San Quentin's Chef Deputy Warden M. Lemon as a defendant. The request was "to ensure that [Defendant Lemon's] role as the [chief deputy warden] has no
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bearing on the case and [to prevent] any possible allegation of perceived retaliation of any nature by [Plaintiff]." (Id.)
2.

During the classification committee hearing, Plaintiff stated that he opposed the
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transfer from San Quentin, but requested that if he was to be transferred, that it be to California State Prison-Solano or Correctional Training Facility (CTF), because they were near his family. (Id.) Defendant Ebert sewed as a committee member. (Id.) Later that same day, Plaintiff was approved by the Classification Staff Representative to be transferred from San Quentin to CTF, a 1 Level 1 institution. (Decl. Maiorino Ex. A, AGO-150.) 3. Plaintiff was transferred to CTF and appeared before another UCC on December

20,2006 for an initial hearing following his transfer from San Quentin. (Pl.'s Compl. Ex. A at 15.) Although a UCC is typically chaired by the facility captain, he was not present and Defendant Plymesser chaired the UCC instead. (Decl. Plymesser 7 3.) Along with Defendant Plymesser, Defendants Robinson and Ratliff served on the UCC. (Id.) 4. As a recent transfer to CTF, Plaintiff appeared before the UCC to ensure that he

was properly transferred to CTF from San Quentin, that he was properly housed at CTFYs North Facility, that he was placed in the appropriate work-group and privilege-group, and to ensure that he was placed on the waiting list for an appropriate program at CTF. (Id. 5.

7 4.)

CTF is a multi-level facility and may house Level I, 11, or I11 inmates. Qd.

7 7.)

Inmates are classified fiom Level I to Level IVY depending on their need for security, with LEVEL I being a lower level of security and Level IV being a higher level of security. Cal. Code Regs., tit. 15, 5 3377. The classification score of an inmate determines which custody level the inmate requires. (Decl. Plymesser 7 7.) On December 20,2006, Plaintiffs classification score was nineteen, making him a Level I1 inmate. (Id.) At CTF, Plaintiff was housed at CTF-North

1 Facility (CTF-North). (Id. 7 8.)

At the time, CTF-North housed Level I, 1 , and 111inmates and a 1

1 majority of the inmates housed in CTF-North were Level I1 inmates. (Id.)

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ARGUMENT

I.

LEGAL STANDARD.

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A.

Summary Judgment.

5 that "there is no genuine issue as to any material fact and that the moving party is entitled to 6 judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that may affect the 7 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute 8 concerning a material fact is genuine if there is sufficient evidence for a reasonable jury to return 9 a verdict for the nonmoving party. Id. at 249. Entry of summary judgment is mandated when the 10 responding party "fails to make a showing sufficient to establish the existence of an element 11 essential to that party's case, and on which that party will bear the burden of proof at trial." 12 Celotex Corp. v. Catrett, 477 U.S. 3 17,322 (1986). When the moving party will have the burden 13 of proof on an issue at trial, he must affirmatively demonstrate that no reasonable trier of fact 14 could find other than for the moving party. Id. at 322-23. 15 However, on an issue for which his opponent will have the burden of proof at trial, the

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Summary judgment is appropriate where the pleadings, discovery, and affidavits show

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16 moving party can prevail merely by pointing out to the c o w that there is an absence of evidence 17 to support the nonmoving party's case. Id. at 325. If the moving party meets its initial burden, 18 the opposing party must then set forth specific facts showing that there is a genuine issue for trial

I fails to make this showing, the moving party is entitled to judgment as a matter of law. Celotex 20
19 to defeat the motion. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at.250. If the nonmoving party 21 Corp., 477 U.S. at 323.
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B.

Motion to Dismiss.

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal

24 sufficiency of a claim. A claim may be dismissed only if it appears beyond doubt that the 25 Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Navarro 26 v. Block, 250 F.3d 729,732 (9th Cir. 2001). 27 / I / 28 I / /
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11.

THERE IS INSUFFICIENT EVIDENCE THAT DEFENDANTS VIOLATED PLAINTIFF'S CONSTITUTIONAL RIGHTS. A. There is No Evidence that Defendants Wrongfully Retaliated Against Plaintiff for Exercising His First Amendment Rights.

Plaintiff has alleged that Defendants retaliated against him for exercising his First Amendment rights. Plaintiff contends that he was wrongfully transferred because of a lawsuit filed against Defendant Lemon related to a 2002 incident at Folsom State Prison. (Pl.'s Compl.) But, as detailed below, Plaintiff was properly transferred for legitimate penological interests that sought to avoid any allegation of undue influence or retaliation against correctional staff. To prevail on a claim under 42 U.S.C. 8'1983 for retaliation, the prisoner must establish that he was retaliated against for exercising a constitutional fight, and that the retaliatory action was not related to a legitimate penological purpose, such as preserving institutional security. See Barnett v. Centoni, 3 1 F.3d 8 13, 815-16 (9th Cir. 1994). In meeting this standard, the prisoner must submit evidence establishing a specific link between the alleged retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802,807 (9th Cir. 1995). Thus, the prisoner plaintiff must establish the following to prevail on a retaliation claim: (1) Prison officials took adverse action against the inmate; (2) the adverse action was taken because the inmate engaged in protected conduct; (3) the adverse action had a chlling effect on the inmate's First Amendment rights; and (4) the adverse action did not serve a legitimate penological purpose. See Rhodes v. Robinson, 408 F.3d 559,569-70 (9th Cir. 2005). It is the prisoner's burden to establish that there was no legitimate penological purpose motivating the actions of which he complains. See Pratt, 65 F.3d at 808. Plaintiff cannot meet his burden because his transfer fi-om San Quentin served legitimate penological interests, in that it sought to protect Plaintiff, correctional staff, and the institution itself. Plaintiffs transfer from San Quentin was a precautionary measure that sought to protect him and eliminate any potential allegation of wrongdoing. Specifically, the request to transfer Plaintiff to a different prison was to ensure that Defendant Lemon's role as the Chief Deputy Warden had no bearing on a prior lawsuit filed by Plaintiff against him and to prevent any possible allegation of perceived retaliation of any nature. (Pl.'s Compl. Ex. A at 5.) By
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removing Plaintiff fiom San Quentin, the potential for any adverse action taken against him because of the lawsuit against Defendant Lemon was eliminated. Had Plaintiff remained at San Quentin, any administrative action taken by Defendant Lemon as part of his duties as Chief Deputy Warden might potentially be perceived as adversely affecting Plaintiff because of his lawsuit, even if the action had nothing to do with Plaintiff. However, once Plaintiff was transferred fi-om San Quentin, administrative acts by Defendant Lemon were ineffective against Plaintiff, thereby, eliminating any potential perception that they were intended to adversely affect Plaintiff. Thus, by transferring Plaintiff, he was fiee to litigate lus lawsuit without interference, perceived or otherwise. Moreover, had Plaintiff remained at San Quentin, there was the potential threat that Plaintiff and other inmates may be led to believe that Plaintiffs lawsuit against Defendant Lemon would cause prison officials to be less likely to enforce prison discipline to avoid allegations of retaliation.. As a result, the authority of the prison officials would be undermined. Once undermined, the potential for a breach in security increases and subjects correctional staff and inmates to an unnecessary level of danger. Moreover, prison officials could sense an incentive act, or fail to\act, because of the pending lawsuit and in an attempt to avoid an allegation of retaliation. Thus, Plaintiff was properly transferred fiom San Quentin because it served legitimate penological interests and Defendants may not be held liable for violating Plaintiffs constitutional rights. Finally, Plaintiff cannot show that his transfer fiom San Quentin violated any policies or procedures of CDCR or adversely affected him. During the inmate-grievance process, Plaintiff took his appeal to the Warden's level, complaining that he was inappropriately transferred. (Pl.'s Compl. Ex. A at 6-7.) But, his appeal was denied because his transfer was in compliance with all appropriate CDCR policies and procedures. (Id.) Further, Plaintiff has not shown that any CDCR employee had acted inappropriately. (Id.).Moreover, the transfer was not adverse in nature and was based on a reasonable penological interests. (Id.) There is no evidence that Plaintiff suffered adversely to support his claim of retaliation because there is nothing detrimental about changing prisons within CDCR. Because Plaintiffs transfer sought to
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eliminate any potential undue influence, was in compliance with CDCR policies and procedures, and sewed penologaical interests, Defendants are entitled to judgment against Plaintiff.
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B.

Plaintiff May Not Sustain Claims Against Defendants Tilton, Ayers, Grannis, Ortiz, Ebert, Plymesser, Robinson, or Ratliff Because He Has Failed to Show That They Were Directly Involved in His Alleged Deprivation.

To state a claim for a constitutional violation, a plaintiff must set forth facts proximately connecting the individual defendants to the loss the plaintiff claims to have suffered. Leer v. Murphy, 844 F. 2d 628,633 (9th Cir. 1988). Vague and conclusory allegations concerning involvement of personnel in civil-rights violations are insufficient to survive. Ivey v. Bd. o f Regents o the Univ. ofAlaska; 673 F. 2d 266,268 (9th Cir. 1982): A plaintiff must establish the f personal involvement of each defendant in the alleged constitutional deprivation or a "causal connection" between each defendant's wrongful conduct and the deprivation. Hansen v. Black, 885 F. 2d 642, 646 (9th Cir. 1978). In his complaint, Plaintiff failed to state any factual basis for his allegations against Defendants. (Compl.) Plaintiff cannot hold Defendants Tilton, Grannis, Ortiz, Plymesser, Robinson, Ratliff, and Ebert liable because they had no personal involvement concerning Plaintiffs transfer or merely classified him once he arrived at the new prison. Thus, there is insufficient evidence that each personally deprived Plaintiff of his constitutional rights.

In his complaint, Plaintiff makes conclusory allegations that Defendants Tilton and
Grannis "repudiated" clearly established CDCR rules when his inmate appeal concerning his transfer was denied. (Pl.'s Compl. 7 11.) But, Plaintiff has identified no personal act by them in support of his claim that they denied him his constitutional right, and there is no evidence of any
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such act or that they were involved at all. Thus, Defendants Tilton and Grannis are entitled to judgment against Plaintiff because there is no evidence that each personally deprived him of any constitutional right. Further, Defendants Plymesser, Robinson, and Ratliff had no authority or responsibility to recommend Plaintiff be transferred back to San Quentin or prevent his transfer to CTF. (Decl. Plymesser 7 5.) They served in a very limited role. Defendants Plymesser, Robinson, and Ratliff
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served on the UCC committee at CTF after Plaintiff was transferred fi-om San Quentin. (Id. 1 3.) Plaintiffs appearance before the UCC at CTF was for a limited purpose. (Id. 7 4.) One purpose was to ensure that procedural requirements were met for Plaintiff to be transferred to CTF. (Id. 7 5.) Defendant Plpesser confirmed that procedural requirements were satisfied by confirming that Plaintiff had received an endorsement fi-om a Classification Staff Representative on December 4,2006. (Id.) Once confirmed, Defendants Plyrnesser, Robinson, and Ratliff had no authority or responsibility to investigate or question Plaintiffs transfer to CTF. (Id.) Thus, Defendants Plyrnesser, Robinson, and Ratliff did not transfer Plaintiff to CTF and may not be held-constitutionallyliable for it. Finally, although Defendant Ebert served on the UCC at San Quentin, she did not have the authority to prevent Plaintiffs transfer to CTF. At the UCC, Defendant Ebert's duties required her to record the most pertinent information and to prepare a document, a CQC 128-G, following the hearing. (Decl. Ebert 7 3.) She did not have the authority or responsibility to reject or prevent Plaintiffs transfer fi-om San Quentin. (Id. 7 8.) Accordingly, Defendant Ebert may not be held liable.
111. Defendants Tilton, Ayers, Grannis, and Ortiz May Not Be Held Liable for Denying Plaintiffs Grievances Because Inmates Do Not Have a Constitutional Right to the Administrative-AppealsProcess.

Inmates do not have a constitutional right to file prisoner administrative appeals or inmate grievances. Ramirez v. Galaza, 334 F.3d 850,860 (9th Cir. 2003) A prison grievance procedure is a procedural right only, and it does not confer any substantive right upon the inmates. Buckley v. Barlow, 997 F.2d 494,495 (8th Cir. 1993). Federal Rule of Civil Procedure 12(b)(6) provides the means to dispose of a claim against a defendant solely based on the denial of an inmate's appeal. A dismissal under Rule 12(b)(6) is proper when there is either a "lack of cognizable legal theory" or "the absence of specific facts alleged under a cognizable legal theory." Id. at 699. Where there are no facts that show the violation of a federally protected right, defendants are entitled to prevail as a matter of law. See Baker v. McCollan, 443 U.S. 137, 140 (1979). Plaintiff alleges in his complaint that he sustained a constitutional violation because his inmate appeal was denied at various stages. For example, he contends that Defendants Tilton

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and Grannis "repudiated" clearly established CDCR rules by denying his inmate appeal. (Pl.'s Compl. 7 11.) But, nowhere does he state the basis for this contention. Conversely, the Director's Level Appeal Decision clearly states that Plaintiffs appeal concerning his transfer was denied because the precautionary transfer was taken to ensure that Plaintiffs constitutional rights were maintained and that the transfer was meant to protect, not hann, Plaintiff. (Pl.'s Compl. Ex. A.) Moreover, Defendant Ayers denied Plaintiffs inmate appeal (Log No. SQ 07-718) grieving his transfer from San Quentin. (Pl.'s Compl. Ex. A at 6-7.) Nowhere in his complaint, does Plaintiff provide the necessary evidence to show how this denial denied him his constitutional rights. Finally, as to Defendant Ortiz, Plaintiff has failed to proffer any evidence in support of his broad allegations. Plaintiff merely attaches a response to Plaintiffs inmate appeal signed by Defendant Ortiz. (Id! Ex. B.) This shows that Defendant Ortiz's only interaction with Plaintiff was when Defendant Ortiz prepared a second level response to Plaintiffs inmate appeal (Log No. CTF-N 06-04251) dated February 28,2007. (Id., Pl.'s Compl. Ex. E.) But the inmate appeal that Defendant Ortiz responded to did not deal with Plaintiffs transfer from San Quentin. (Id.) It merely dealt with Plaintiffs complaint that he was not receiving adequate privileges and had not been given a job assignment. (Id.) In fact, Defendant Ortiz was not even working at CTF in December 2006. (Decl. Ortiz 7 2.) Moreover, Defendant Ortiz is not familiar with Defendant Lemon and did not know that Plaintiff had filed a previous lawsuit against Defendant Lemon. (Id.

7 4.)

In sum, Defendant Ortiz had no involvement with Plaintiffs transfer from San

Quentin. (Id. 17 2,4.) As such, Defendant Ortiz may not be held liable because he was employed at CTF and had no responsibility or authority to prevent his transfer to CTF. Accordingly, Plaintiff may not sustain t h s action against these Defendants because of their actions during the appeals process. In the absence of any evidence of wrongdoing, these Defendants may not be held liable for their actions taken as part of the appeals process and must be dismissed under Federal Rule of Civil Procedure 12(b)(6).
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IV.

Even If the Court Were to Find a Constitutional Violation, Defendants Are Entitled to Qualified Immunity Because a Reasonable Officer Could Have Believed that Defendants' Conduct Was Lawful.

Qualified immunity shields an official fiom civil-damages liability unless his conduct violated clearly established law, of which a reasonable official would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, it gives officials "ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bvyant, 502 U.S. 224,229 (1991) (internal quotes and citation omitted). Constitutional requirements are not always clear-cut at the time that action is required by officials. Saucier v. Katz, 533 U.S. 194,205-06 (2001). But qualified immunity ensures that officials are on notice that their conduct is unlawful before they are subjected to suit. Id. It therefore prevents officials from being distracted fiom their governmental duties or inhibited fiom taking necessary discretionary action. Harlow, 457 U.S. at 816. It also prevents "deterrence of able people fiom public service." Id. And in reference to prisons, it allows officials to utilize their expertise-based on years of observation and practice-to maintain order without fear of liability

for doing what seemed "reasonable" at the time. See Jefers v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001). In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a particular sequence of questions to be considered in determining whether qualified immunity exists. A court must first consider this threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201. 1f no constitutional right was violated, the inquiry ends and defendants prevail. Id. at 204. If, however, "a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id. at 201-02. "The contours of the right must be sufficiently clear that a reasonable official 1 would understand that what he is doing violates that right." Id. The Supreme Court also held that the goal of qualified immunity would be undermined if a court denied summary judgment each time a material issue of fact remains on a claim. Saucier, 533 U.S. at 202. As detailed above, the evidence does not show that Defendants violated Plaintiffs
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constitutional rights. But, if the Court were to find such a violation, Defendants would still be entitled to qualified immunity because the law in effect at the time did not show that Defendants' actions were clearly unlawful. First, Plaintiff has no constitutional right to his prison of choice. Montanye v. Haymes, 427 U.S. 236,243 (1976). Second, correctional officers have been granted qualified immunity for their decision to transfer a prisoner to preserve internal order and discipline and to maintain internal security. Schroeder v. McDonald, 55 F.3d 454,461-62 (9th Cir. 1995). Thus, even if Plaintiff choice was to remain at San Quentin, that alone would not be enough to prevent a transfer. As detailed above, Plaintiff was transferred to ensure .that any potential for adverse action against him because of a lawsuit he had filed was eliminated. (Pl.'s Compl. Ex. A at 5.) Additionally, he was transferred as a means to avoid any perception that prison authorities' potential adverse actions against him were because of a pending lawsuit. (Id.) Additionally, Defendants involved in Plaintiffs administrative appeal would not have known that by denying his inmate appeal, they were violating his constitutional rights. Thus, for these reasons, a reasonable officer could believe that Defendants were not violating Plaintiffs constitutional rights. Accordingly, Defendants are entitled to qualified immunity. CONCLUSION For the reasons stat6d above, the undisputed evidence shows that Defendants did not retaliate against Plaintiff in violation of his constitutional rights. Even if Plaintiff were to show that there was a triable issue of fact that a constitutional violation had occurred, Defendants would still be entitled to qualified immunity because no reasonable officer would have believed that transferring Plaintiff to another prison would have resulted in a violation his constitutional rights. Further, Plaintiff has failed to show that Defendants Tilton, Grannis, Plymesser,
,

Robinson, Ratliff, or Ebert personally deprived him of h s constitutional rights. Finally,
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/I/

Defs.' Mot. Summ. J. &Mot. Dismiss; Supp'g Mem. P. &A.

G. Tabarez v. J. Tilton, et al. C 07-4920 JF (PR)

Case 5:07-cv-04920-JF

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Filed 06/05/2008

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Defendants Tilton, Grannis, Ayers, and Ortiz should be dismissed fiom this lawsuit because there is no constitutional right to an administrative appeals process. Dated: June x 2 0 0 8 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DAVID S. CHANEY Chief Assistant Attorney General FRANCES T. GRUNDER Senior Assistant Attorney General THOMAS S. PATTERSON Supervising Deputy Attorney General

TRACE 0.MAIORINO Deputy Attorney General Attorneys for Defendants Lemon, Ayers, Tilton, Ebert, Ortiz, Plymesser, Robinson, Ratliff, and Grannis

Defs.' Mot. Summ. J. &Mot. Dismiss; Supp'g Mem. P. & A .

G. Tabarez v. J. Tilton, et al. C 07-4920 JF (PR)

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