United States District Court, D. Arizona
Armando A. Marroquin, Plaintiff,
Yolanda Fernandez-Carr, et al., Defendants.
G. CAMPBELL SENIOR, UNITED STATES DISTRICT JUDGE.
Armando A. Marroquin brought this civil rights action
pursuant to 42 U.S.C. § 1983. Doc. 14. Defendants move
for summary judgment. The Court provided notice to Plaintiff
of the response requirements pursuant to Rand v.
Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc).
Doc. 80. The motion is fully briefed (Docs. 78, 85) and no
party requests oral argument. For the following reasons, the
Court will grant Defendants' motion in part.
claims arose while he was confined at CoreCivic's La
Palma Correctional Center (“LPCC”) in Eloy,
Arizona, pursuant to a contract between the California
Department of Corrections and Rehabilitation
(“CDCR”) and CoreCivic. Doc. 14 at
In his six-count Second Amended Complaint, Plaintiff brought
claims against the following LPCC employees: Law Library
Supervisor and Education Principal Yolanda Fernandez Carr,
Law Library and Education Supervisor Kyle Prince, Case
Manager Cosby, Correctional Counselor P. Kelly, Health
Services Administrator (“HSA”) E. Burnett, and
Doctor P. Matranga. Doc. 14 at 1-3.
screening under 28 U.S.C. § 1915A(a), the Court
determined that Plaintiff asserted First Amendment
access-to-courts claims against Defendants Fernandez-Carr and
Prince in Counts 1 and 2, respectively; Eighth Amendment
medical care claims against Defendants Burnett and Matranga
in Counts 3 and 4, respectively; and First Amendment
retaliation and Eighth Amendment conditions of confinement
claims against both Defendants Cosby and Kelly in Counts 5
and 6, respectively. Doc. 16 at 3-6. The Court directed
Defendants to answer. Id. Dr. James Giovino was
later substituted for Defendant Matranga. Doc. 36. Defendants
move for summary judgment on all claims. Doc. 78.
Summary Judgment Standard and Plaintiff's
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Summary judgment is
appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, shows “that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Summary judgment is also appropriate against a party
who “fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322. Only
disputes over facts that might affect the outcome of the suit
will preclude summary judgment, and the disputed evidence
must be “such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Rule of Civil Procedure 56.1 requires a party opposing
summary judgment to submit a statement of facts citing
“a specific admissible portion of the record where the
fact finds support.” LRCiv 56.1(b). “General
references without page or line numbers are not sufficiently
specific.” S. Cal. Gas Co. v. City of Santa
Ana, 336 F.3d 885, 889 (9th Cir. 2003). As the Ninth
Circuit has noted, a district court “need not examine
the entire file for evidence establishing a genuine issue of
fact, where the evidence is not set forth in the opposing
papers with adequate references so that it could conveniently
be found.” Carmen v. S.F. Unified Sch. Dist.,
237 F.3d 1026, 1031 (9th Cir. 2001); Keenan v.
Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (the district
court has no responsibility on summary judgment to
“scour the record in search of a genuine issue of
triable fact”); see also Independent Towers of
Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).
opposition to Defendants' motion, Plaintiff attached to
his Statement of Facts ten exhibits totaling 124 pages,
referring only to exhibits without specific page or line
citations. Doc. 85. Plaintiff's wholesale citation to
documents without identifying the relevant portions is
inadequate. The Court has nonetheless conducted a general
review of Plaintiff's exhibits and will consider that
evidence to the extent that he cites specific portions within
his exhibits. But the Court will not consider any asserted
fact if the supporting evidence is not readily found.
Counts 1 and 2: Access to Courts.
institutions may not actively interfere with inmates'
attempts to prepare or file legal documents, and must provide
prisoners “a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to
the courts.” Lewis v. Casey, 518 U.S. 343,
350-51 (1996); see also Hebbe v. Pliler, 627 F.3d
338, 342 (9th Cir. 2010). The right of access to the courts
is only a right to bring petitions or complaints to federal
court and not a right to discover such claims or litigate
effectively once filed. Lewis, 518 U.S. at 354. The
right “guarantees no particular methodology but rather
[confers] the capability [to challenge] sentences or
conditions of confinement before the courts.”
Id. at 356.
succeed on a “backward-looking” access claim, a
plaintiff must show: “(1) the loss of a non-frivolous
or arguable underlying claim; (2) the official acts that
frustrated the litigation; and (3) a remedy that may be
awarded as recompense but that is not otherwise available in
a future suit.” Arellano v. Blahnik, No.:
16-cv-2412-CAB (DHB), 2017 WL 2833117, at *8 (S.D. Cal. June
30, 2017) (discussing Christopher v. Harbury, 536
U.S. 403, 413-14 (2002)). The first element “is not
satisfied by just any type of frustrated legal claim.”
Lewis, 518 U.S. at 354. The right of access
“does not guarantee inmates the wherewithal to
transform themselves into litigating engines capable of
filing everything from shareholder derivative actions to
slip-and-fall claims.” Id. at 355. The
nonfrivolous claim must be a direct or collateral attack on
the inmate's sentence or a challenge to his confinement
conditions. Id. “Impairment of any
other litigating capacity is simply one of the
incidental (and perfectly constitutional) consequences of
conviction and incarceration.” Id. (emphasis
in original); see also Hebbe, 627 F.3d at 342-43
(prisons must provide the “tools” that
“inmates need in order to attack their sentences,
directly or collaterally, and in order to challenge the
conditions of their confinement”).
1 and 2 allege that on thirteen days between May 25, 2011,
and January 31, 2015, Defendants Fernandez-Carr and Prince
instructed their subordinates to deny Plaintiff's
requests for photocopies of his legal paperwork, resulting in
the dismissal of his criminal and civil cases in June 2011,
September 2012, January 2015, October and November 2014, and
January 2015. Doc. 14 at 4, 6. Plaintiff also alleges that
Defendants denied him access to Spanish-language books, case
law, and legal data that were necessary to prepare his habeas
corpus petition. Id. at 5, 7.
is the Principal of the Education Department at the LPCC and
is responsible for overseeing the education program there,
including at the facility's two libraries. Doc. 79 (Defs.
Statement of Facts ¶¶ 2-3). When Plaintiff's
claims arose, Prince was an LPCC Instructor Supervisor and
responsible for supervising LPCC teachers under the direction
of Fernandez-Carr. Id. ¶¶ 4-5. Plaintiff
was assigned to the LPCC education program from May 9, 2011
to July 8, 2015. Id. ¶ 8. Plaintiff was paid
$0.25 per hour to attend class, and his wages were deposited
monthly into his inmate trust account. Id. ¶ 9.
to Title 15 of the California Code of Regulations
(“CCR”) - which governs the rules and regulations
for CDCR facilities - legal photocopying services may be
provided without charge to unrepresented indigent inmates.
Id. at ¶ 11 (citing 15 CCR § 3162). An
indigent inmate is one “who currently has, and for the
previous 30 consecutive days has maintained, $1.00 or less in
his inmate trust account.” Id. ¶ 12
(citing 15 CCR § 3162(a)). All other inmates must pay
for photocopying services. Id. ¶ 16 (citing 15
CCR § 3162(b)). Photocopies of legal documents are
“limited to the maximum number of pages needed for the
filing, not to exceed 50 pages in total length, except when
necessary to advance litigation.” Id. ¶
19 (quoting 15 CCR § 3162(c)).
the LPCC Printing and Duplication Procedure,
“[r]equests for duplication of documents exceeding 50
pages in length shall be granted when accompanied by a
reasonable written explanation of the need.”
Id. ¶ 20. But “[i]n no event shall staff
be required to duplicate legal documents exceeding 100 pages
in length without a court order directing the duplication to
take place.” Id. If a non-indigent LPCC inmate
has insufficient funds in his inmate trust account to pay for
photocopies, or the request exceeds 50 pages, law library
staff must deny the request and forward it to the Assistant
Warden for approval. Id. ¶ 22. The Assistant
Warden always authorizes photocopies for legal forms and
documents, even if the inmate has a zero balance in his trust
account. In such a case, the requested copies are made, and a
hold is placed on the inmate's account for the unpaid
balance. Id. ¶¶ 24-25. For indigent
inmates, the charges expire unless the inmate is removed from
indigent status within 30 days of incurring the charges. For
non-indigent inmates, the hold remains until the balance is
paid or the inmate is transferred to a non-CoreCivic
facility. Id. ¶¶ 14-15, 25-26. Around 2010
or 2011, Plaintiff had a hold on his account for
approximately $400 due to making previous photocopies without
sufficient funds in his trust account. Id. ¶
33; see Doc. 79-3 (Pl. Depo.) at 18:17-19:12.
his deposition, Plaintiff was asked about each of the dates
on which he asserts Defendants denied his requests for
photocopies and Spanish-language legal materials. Doc. 79-3
at 25:7-51:5. For each date, Plaintiff could not recall what
documents he attempted to photocopy or in which cases or
courts those documents were filed. Id. Plaintiff
testified that when he asked library staff for photocopies,
the staff members would call their “boss, ” who
would deny the request telephonically. Id. Plaintiff
did not personally participate in the phone calls and assumed
that the “boss” was either Fernandez-Carr or
Prince, but he did not know which Defendant denied his
requests. Id. When asked what specific
Spanish-language materials he requested, Plaintiff responded:
“[b]ooks and - legal books in Spanish and
Spanish/English dictionaries.” Id. at
asserts that Defendants denied his requests for photocopies,
case law, Spanish-language books, and other legal data. Doc.
16 at 3. His response cites a declaration by a fellow inmate
and pages of an education progress report, but neither
exhibit appears to describe Defendants' denial of
Plaintiff's requests. Docs. 85 at 4; 85-3 at 12. Indeed,
around 2010 or 2011, Plaintiff had a hold on his account for
about $400 from being permitted to make photocopies without
sufficient funds. Plaintiff's response does not rebut
this or Defendants' other asserted facts. See
Doc. 85 at 3. Plaintiff refers to his exhibits A and B
without specific citations. Id. These exhibits
include over 60 pages, many of which are illegible, and
Plaintiff offers no explanation of their relevance to his
claims. Docs. 85-1 at 2-38; 85-2 at 1-18; 85-3 at 1-10.
Plaintiff identifies no other evidence of Defendants'
alleged actions which frustrated the litigation of his
underlying claims. See Harbury, 536 U.S. at 415.
also fails to “identify a nonfrivolous, arguable
underlying claim” that he lost because of
Defendants' actions. Id. (internal quotations
omitted). Plaintiff fails to identify the underlying cases at
issue, in which courts they were pending, what documents he
was unable to file, and the consequences in each case. Doc.
79-3 at 8-21, 24-34. His response discusses no underlying
actions giving rise to his current access claims, making
impossible the Court's task of determining whether his
“claim for relief underlying the access-to-courts
plea” is nonfrivolous and arguable, Harbury,
536 U.S. at 417, and what remedy “may be awarded as
recompense but that is not otherwise available in a future
suit” Arellano, 2017 WL 2833117, at *8.
See Doc. 85.
fails to establish elements essential to his access-to-courts
claims. See Celotex, 477 U.S. at 323. The Court will
grant Defendants' motion on Counts 1 and 2.
Counts 3 and 4: Medical Care.
state a § 1983 claim based on prison medical treatment,
a plaintiff must show (1) a “serious medical
need” by demonstrating that “failure to treat a
prisoner's condition could result in further significant
injury or the unnecessary and wanton infliction of pain,
” and that (2) “the defendant's response to
the need was deliberately indifferent.” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing
Estelle v. Gamble, 429 U.S. 97, 104 (1976))
(internal quotations omitted). The requirement of deliberate
indifference “is satisfied by showing (a) a purposeful
act or failure to respond to a prisoner's pain or
possible medical need and (b) harm caused by the
indifference. Indifference ‘may appear when prison
officials deny, delay or intentionally interfere with medical
treatment, or it may be shown by the way in which prison
physicians provide medical care.'” Id.
(citations omitted); Estelle, 429 U.S. at 104-05.
indifference is a high legal standard.” Toguchi v.
Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). A prison
official must both know of and disregard an excessive risk to
inmate health - he must “be aware of facts from which
the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825,
837 (1994). A plaintiff must show more than negligence or
lack of ordinary due care for the prisoner's safety.
Farmer, 511 U.S. at 835; see also Broughton v.
Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980)
(indifference, negligence, or medical malpractice are
insufficient under § 1983). “A difference of
opinion does not amount to deliberate indifference to [a
plaintiff's] serious medical needs.” Sanchez v.
Vild, 891 F.2d 240, 242 (9th Cir. 1989). Nor is mere
delay in medical care, without more, sufficient to state a
claim against prison officials. See Shapley v. Nevada Bd.
of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.
alleges that Defendant Burnett was deliberately indifferent
in failing to provide Plaintiff with adequate pain medication
for his back and head pain, refusing to order his prescribed
orthopedic shoes, and failing to treat his testicular tumor.
Docs. 14 at 8-9; 16 at 4. Burnett's HSA responsibilities
included overseeing “the administrative aspects of the
medical unit, [and] ensuring that medical staff and inmates
complied with CoreCivic policy regarding the provision of
medical care.” Doc. 79-4 (Burnett Decl.) ¶ 3. He
asserts that he did not perform any clinical duties or have
authority to prescribe or cancel medications, prescribe
courses of treatment, or order orthopedic shoes. Id.
¶¶ 3, 5. He was not a licensed independent