Marroquin v. Fernandez-Carr

          ORDER

          DAVID G. CAMPBELL SENIOR, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         I. Background.

         Plaintiff's 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 1.^[1] 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.^[2]

         On 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.

         II. Summary Judgment Standard and Plaintiff's Motion.

         A party 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).

         Local 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).

         In 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.

         III. Counts 1 and 2: Access to Courts.

         A. Legal Standard.

         Penal 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.

         To 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”).

         B. Relevant Facts.

         Counts 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.^[3] 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.

         Fernandez-Carr 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.

         Pursuant 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)).

         Under 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.

         During 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 47:24-48:2.

         C. Discussion.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         IV. Counts 3 and 4: Medical Care.

         A. Legal Standard.

         To 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.

         “Deliberate 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. 1985).

         B. Relevant Facts.

         1. Defendant Burnett.

         Count 3 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 ...