(PC) Machado v. Bustamante

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 OSCAR MACHADO, Case No. 2:18-cv-02943-JDP (PC)

12 Plaintiff, ORDER THAT THE CLERK OF COURT

ASSIGN A DISTRICT JUDGE TO RULE ON

13 v. THESE FINDINGS AND

RECOMMENDATIONS

14 A. BUSTAMANTE AND K. YOUNG,

FINDINGS AND RECOMMENDATIONS

15 Defendants. THAT:

16 DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT BE DENIED

17

ECF No. 31

18

PLAINTIFF’S MOTIONS FOR IMMEDIATE

19 TRANSFER BE DENIED AS MOOT

20 ECF No. 40

21 OBJECTIONS DUE IN 14 DAYS

22

23

24 Plaintiff Oscar Machado alleges that he assisted another inmate in filing a lawsuit against

25 correctional officers at Mule Creek State Prison. In retaliation and in violation of his First

26 Amendment rights, he claims that officers A. Bustamante and K. Young searched and ransacked

27 his cell. Defendants have moved for summary judgment and raise three arguments in support.

28 First, they argue that plaintiff knowingly omitted assets from his application to proceed in forma

1 pauperis. They argue that the proper remedy for such an omission is dismissal with prejudice.

2 Second and in the alternative, they argue that defendant Young is entitled to summary judgment

3 because the evidence shows that he did not retaliate against plaintiff. Third, they argue that

4 Young is protected by qualified immunity. None of these arguments is persuasive, and I

5 recommend that defendants’ motion for summary judgment be denied. I also recommend that

6 plaintiff’s motion for transfer, ECF No. 40, be denied as moot.

7 Motion for Transfer

8 On December 14, 2020, plaintiff filed a motion asking that the court order him transferred

9 back to Mule Creek State Prison (“MCSP”) from the Los Angeles County Jail. ECF No. 40.

10 Before I addressed the motion, plaintiff was sent back to MCSP. ECF No. 43. Accordingly, the

11 motion should be denied as moot.

12 Motion for Summary Judgment

13 A. Legal Standards

14 1. Summary Judgment Standard

15 Summary judgment is appropriate where there is “no genuine dispute as to any material

16 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington

17 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine

18 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party,

19 while a fact is material if it “might affect the outcome of the suit under the governing law.”

20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818

21 F.2d 1422, 1436 (9th Cir. 1987).

22 Rule 56 allows a court to grant summary adjudication, also known as partial summary

23 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim.

24 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule

25 56 authorizes a summary adjudication that will often fall short of a final determination, even of a

26 single claim . . . .”) (internal quotation marks and citation omitted). The standards that apply on a

27 motion for summary judgment and a motion for summary adjudication are the same. See Fed. R.

28 Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

1 Each party’s position must be supported by (1) citations to particular portions of materials

2 in the record, including but not limited to depositions, documents, declarations, or discovery; or

3 (2) argument showing that the materials cited do not establish the presence or absence of a

4 genuine factual dispute or that the opposing party cannot produce admissible evidence to support

5 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court can consider other

6 materials in the record not cited by the parties, but it is not required to do so. See Fed. R. Civ. P.

7 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see

8 also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

9 “The moving party initially bears the burden of proving the absence of a genuine issue of

10 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the

11 moving party must either produce evidence negating an essential element of the nonmoving

12 party’s claim or defense or show that the nonmoving party does not have enough evidence of an

13 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins.

14 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this

15 initial burden, the burden shifts to the non-moving party “to designate specific facts

16 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d

17 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than

18 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477

19 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material

20 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to

21 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W.

22 Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987).

23 The court must apply standards consistent with Rule 56 to determine whether the moving

24 party has demonstrated there to be no genuine issue of material fact and that judgment is

25 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993).

26 “[A] court ruling on a motion for summary judgment may not engage in credibility

27 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

28 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the

1 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party.

2 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc.,

3 198 F.3d 1130, 1134 (9th Cir. 2000).

4 2. First Amendment Retaliation Claims

5 The First Amendment guarantees prisoners the right to file prison grievances and to bring

6 civil rights suits in court. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). A prison

7 official who retaliates against an inmate for these protected activities violates the First

8 Amendment. See, e.g., Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995). To succeed on

9 a First Amendment retaliation claim, a plaintiff must show that: (1) a state actor took an adverse

10 action against him (2) because of (3) his protected conduct, and that such action (4) chilled his

11 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

12 correctional goal. See Rhodes, 408 F.3d at 567-68.

13 B. Background

14 In 2016, an inmate named Kahaku asked plaintiff to help him bring First Amendment

15 retaliation claims against several officials at MCSP. ECF No. 1 at 4-5. Kahaku’s lawsuit was

16 filed in 2016 and settled in early 2018. Id. at 5. Plaintiff alleges that defendant Bustamante

17 learned of the settlement at some time in February 2018 and then began harassing plaintiff and

18 Kahaku. Id. at 5-6. That harassment culminated when, on February 17, 2018, defendants

19 searched and trashed the cell shared by plaintiff and Kahaku. Id. at 6. Plaintiff approached

20 Bustamante afterwards and asked why the search had been conducted. Id. The latter referenced

21 the settlement and stated “yeah, you guys may have been able to collect from us but get used to

22 this . . . [s]omebody wanted us to pay you guys a visit to clean your house.” Id.

23 C. Analysis

24 1. False Allegation of Poverty

25 Defendants argue that this case should be dismissed because plaintiff misrepresented his

26 assets on his application to proceed in forma pauperis. Specifically, they claim that he omitted

27 two categories of assets: those held by his wife, and funds transferred to his inmate account from

28 the families of other prisoners who, defendants claim, are seeking to avoid paying restitution.

1 ECF No. 31-2 at 4. Under 28 U.S.C. § 1915(e)(2)(A), courts “shall dismiss the case at any time if

2 [it] determines that the allegation of poverty is untrue.” The Ninth Circuit has held that dismissal

3 under this provision is appropriate only where there is a showing of bad faith. See Escobedo v.

4 Applebees, 787 F.3d 1226, 1236 n.8 (9th Cir. 2015) (“To dismiss Escobedo’s complaint pursuant

5 to § 1915(e)(2), a showing of bad faith is required, not merely inaccuracy.”). I am not persuaded

6 that plaintiff’s omissions were made in bad faith, and I decline to recommend that this action be

7 dismissed under § 1915(e)(2).

8 The assets held by plaintiff’s wife are modest. Defendants describe them as: (1) a bi-

9 weekly salary of $2,287 dollars; (2) a vehicle valued at $6,200 dollars; and (3) $159 in a checking

10 or savings account.1 ECF No. 31-2 at 4. Plaintiff and his wife have been married since 1992 and

11 she regularly sends him money. Id. Defendants argue that plaintiff’s omission of these assets

12 must have been made in bad faith because he is an experienced litigator who “is familiar with the

13 need for truthful and complete pleadings.” ECF No. 42 at 4. But that argument can just as easily

14 be turned on its head: If plaintiff is knowledgeable about the mechanics of litigation, it is unlikely

15 that he would have tried to hide assets that were already disclosed in another action, especially

16 when the omitted assets were relatively small and thus unlikely to disrupt a finding of poverty.

17 Finally, although the Machados have a long-standing marriage, it probably should not be ignored

18 that plaintiff is a prisoner and lacks ready access to his wife’s assets. A plaintiff, even a savvy

19 one, could conceivably overlook the need to list assets not at his ready disposal.

20 I am also unpersuaded that plaintiff’s acceptance of “JPAY” transfers from the families of

21 other inmates shows that his allegation of poverty was false. The allegation that plaintiff has used

22 his inmate account to help others avoid restitution fees is a serious one, but it is not at issue in this

23 case. As plaintiff argues in his opposition, he appears to have understood that all assets in his

24 prisoner trust fund account would be shown in the separately filed trust fund account statement.

25

1 These figures come from an in forma pauperis application filed by Mrs. Machado in a

26

separate case. See Juanita Machado v. Lizarraga, et al., No. 2:17-cv-02430-TLN-CKD (PC),

27 ECF No. 2. Defendants ask that I take judicial notice of this document, but I find it unnecessary

to do so. For the purposes of this motion, I will accept the figures as true. They do not alter my

28 analysis.

1 ECF No. 41 at 15. Such a belief would have been reasonable, and the record does not otherwise

2 show that plaintiff acted in bad faith in omitting previous “JPAY” transfers from his application.

3 2. Defendant K. Young

4 In the alternative, defendant Young raises two separate arguments for summary judgment.

5 First, he broadly argues that the undisputed facts show that he did not retaliate against plaintiff.

6 He contends that he did not take adverse action against plaintiff because he did not personally

7 search plaintiff’s cell. ECF No. 31-2 at 9. Instead, he only stood watch near the outside of the

8 cell to ensure Bustamante’s safety. Id. Young also argues that there is no evidence that he had

9 any intent to retaliate against plaintiff for his protected conduct, and he contends that standing

10 guard outside plaintiff’s cell while it was searched served a legitimate correctional goal. Id.

11 This argument should be rejected because the relevant facts are in dispute. Plaintiff’s

12 opposition includes a declaration from Javier Zubiate, an inmate who claims to have observed

13 Young enter plaintiff’s cell alongside defendant Bustamante to conduct the search. ECF No. 41

14 at 20. This testimony is at odds with Young’s claim that he was not present when Bustamante

15 began the cell search. ECF No. 31-4 at 5-6. Zubiate also states that Young was not regularly

16 assigned to plaintiff’s housing unit. ECF No. 41 at 20. This calls into doubt Young’s claim that

17 he came upon Bustamante conducting the cell search and undertook to help him by happenstance.

18 ECF No. 31-4 at 5-6. And although Young claims to have had no knowledge of plaintiff’s legal

19 filings prior to the cell search, plaintiff disputes that. He points to the statement allegedly made

20 by Bustamante after the search, that “someone wanted us to pay you guys a visit,” and argues that

21 the “us” implicates Young in the retaliatory search. Finally, Young’s argument that his presence

22 necessarily served a legitimate penological purpose cuts against precedent. If Young understood

23 Bustamante’s search to be motivated by retaliation, his assistance was illegitimate. See Bruce v.

24 Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (“[P]rison officials may not defeat a retaliation claim on

25 summary judgment simply by articulating a general justification for a neutral process, when there

26 is a genuine issue of material fact as to whether the action was taken in retaliation for the exercise

27 of a constitutional right.”). Based on the record, a reasonable finder of fact could conclude that

28 Young’s involvement in the search was retaliatory.

1 Second, Young argues that he is entitled qualified immunity because he did not violate

2 plaintiff’s constitutional rights and, even if he did, a reasonable officer would not have known

3 that safeguarding an officer conducting a cell search amounted to a violation. ECF No. 31-2 at

4 10.

5 I also reject this argument. The initial inquiry in evaluating a claim of qualified immunity

6 is whether a plaintiff’s allegations, taken as true, establish that the defendant violated his

7 constitutional rights. See Saucier v. Katz, 533 U.S. 194, 201 (2001). Here, the alleged facts show

8 that Young violated plaintiff’s constitutional rights by participating in a search that was meant to

9 punish him for engaging in protected conduct. Since the first inquiry is answered in the

10 affirmative, I must determine whether the right Young violated was clearly established. Id. Put

11 differently, would a reasonable officer have understood that searching a prisoner’s cell to punish

12 him for taking legal action was unlawful? Id. at 202 (“The relevant, dispositive inquiry in

13 determining whether a right is clearly established is whether it would be clear to a reasonable

14 officer that his conduct was unlawful in the situation he confronted.”). The answer must be yes.

15 A prisoner’s right to engage in civil rights litigation without fear of reprisal from prison officials

16 is not new. See Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985).

17 Accordingly, it is ORDERED that the Clerk of Court assign a district judge to rule on

18 these findings and recommendations.

19 Further, it is RECOMMENDED that:

20 1. Defendants’ motion for summary judgment, ECF No. 31, be denied.

21 2. Plaintiff’s motion for immediate transfer, ECF No. 40, be denied as moot.

22 I submit these findings and recommendations to the district judge under 28 U.S.C.

23 § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court,

24 Eastern District of California. Within 14 days of the service of the findings and

25 recommendations, any party may file written objections to the findings and recommendations

26 with the court and serve a copy on all parties. That document should be captioned “Objections to

27 Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings

28 and recommendations under 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the

1 | specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d

2 | 834, 839 (9th Cir. 2014).

3

4 IT IS SO ORDERED.

Dated: _ August 17, 2021 Q_——.

6 JEREMY D. PETERSON

7 UNITED STATES MAGISTRATE JUDGE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28