(PC) Cyprian v. Constable

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 REALIOUS CYPRIAN, No. 2:19-cv-0689 DJC AC P

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 T. CONSTABLE, et al.,

15 Defendants.

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17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §

18 1983. Defendants have moved for summary judgment on two claims. ECF No. 66. Plaintiff

19 filed an untimely opposition to the motion, ECF No. 84, which the court will consider in the

20 interests of justice. Defendants filed a reply. ECF No. 85. For the reasons that follow, the

21 undersigned recommends that the motion for summary judgment be granted.

22 I. BACKGROUND

23 The pro se complaint was found on screening to present three claims for relief. First,

24 plaintiff alleged that defendants Constable and Thomas failed to protect him from assault by

25 another inmate in violation of his Eighth Amendment rights. Second, he claimed that defendant

26 Amador denied him procedural due process at a disciplinary hearing, by refusing to allow

27 production of a video recording of the altercation that would have shown the other inmate to be

28 the aggressor. Third, plaintiff alleged that Amador refused presentation of the video evidence

1 because it was exculpatory, in violation of plaintiff’s right to equal protection of the laws. ECF

2 No. 16.

3 II. THE MOTION

4 A. Defendants’ Arguments

5 The motion seeks summary judgment on the two claims stated against defendant Amador

6 that arise from the disciplinary hearing. The motion does not address the Eighth Amendment

7 failure to protect claim against defendants Constable and Thomas. Defendant Amador argues that

8 plaintiff has failed to identify an evidentiary predicate for a triable equal protection claim, that

9 plaintiff was not denied due process as a matter of law, and that she is entitled to qualified

10 immunity. ECF No. 66-2.

11 B. Plaintiff’s Response

12 In opposition, plaintiff focuses on defendants’ alleged spoliation of the video evidence,

13 and argues that default judgment should be entered in his favor as a sanction. ECF No. 84.1 He

14 argues that CDCR policy required the preservation and production of the video evidence, and

15 attaches exhibits including the text of an institutional videorecording policy. Id.

16 The court notes that plaintiff has failed to comply with Federal Rule of Civil Procedure

17 56(c)(1)(A), which requires that “[a] party asserting that a fact . . . is genuinely disputed must

18 support the assertion by . . . citing to particular parts of materials in the record.” Plaintiff has also

19 failed to file a separate document in response to defendants’ statement of undisputed facts that

20 identifies which facts are admitted and which are disputed, as required by Local Rule 260(b).

21 Defendants served plaintiff with notice of the requirements for opposing a motion pursuant to

22 Rule 56 of the Federal Rules of Civil Procedure together with their motion for summary

23 judgment. ECF No. 66-1; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988) (pro se

24 prisoners must be provided with notice of the requirements for summary judgment); Rand v.

25 Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc) (movant may provide notice).

26 “Pro se litigants must follow the same rules of procedure that govern other litigants.”

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1 Plaintiff brought an untimely motion to compel production of the video evidence, which was

28 denied. See ECF No. 79 at 4-5.

1 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted), overruled on other grounds,

2 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). However, it is well-

3 established that district courts are to “construe liberally motion papers and pleadings filed by pro

4 se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611

5 F.3d 1144, 1150 (9th Cir. 2010). The unrepresented prisoner’s choice to proceed without counsel

6 “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily imposes

7 upon a litigant,” such as “limited access to legal materials” as well as “sources of proof.”

8 Jacobsen v. Filler, 790 F.2d 1362, 1364 n.4 (9th Cir. 1986) (alteration in original) (citations and

9 internal quotation marks omitted). Inmate litigants, therefore, should not be held to a standard of

10 “strict literalness” with respect to the requirements of the summary judgment rule. Id. (citation

11 omitted).

12 Accordingly, the court considers the record before it in its entirety despite plaintiff’s

13 failure to be in strict compliance with the applicable rules. However, the court will only consider

14 those assertions in the opposition which have evidentiary support in the record.

15 III. LEGAL STANDARDS

16 A. Summary Judgement

17 Summary judgment is appropriate when the moving party “shows that there is no genuine

18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

19 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden

20 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627

21 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The

22 moving party may accomplish this by “citing to particular parts of materials in the record,

23 including depositions, documents, electronically stored information, affidavits or declarations,

24 stipulations (including those made for purposes of the motion only), admissions, interrogatory

25 answers, or other materials” or by showing that such materials “do not establish the absence or

26 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

27 support the fact.” Fed. R. Civ. P. 56(c)(1).

28 “Where the non-moving party bears the burden of proof at trial, the moving party need

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

2 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

3 Indeed, summary judgment should be entered, “after adequate time for discovery and upon

4 motion, against a party who fails to make a showing sufficient to establish the existence of an

5 element essential to that party’s case, and on which that party will bear the burden of proof at

6 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element

7 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such

8 a circumstance, summary judgment should “be granted so long as whatever is before the district

9 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule

10 56(c), is satisfied.” Id.

11 If the moving party meets its initial responsibility, the burden then shifts to the opposing

12 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.

13 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the

14 existence of this factual dispute, the opposing party may not rely upon the allegations or denials

15 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or

16 admissible discovery material, in support of its contention that the dispute exists. See Fed. R.

17 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a

18 fact “that might affect the outcome of the suit under the governing law,” and that the dispute is

19 genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving

20 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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

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

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

24 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987)

25 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the

26 “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see

27 whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal

28 quotation marks omitted).

1 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the

2 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls

3 v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the

4 opposing party’s obligation to produce a factual predicate from which the inference may be

5 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to

6 demonstrate a genuine issue, the opposing party “must do more than simply show that there is

7 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations

8 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the

9 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391

10 U.S. at 289).

11 B. Equal Protection

12 The Equal Protection Clause requires that persons who are similarly situated be treated

13 alike, see City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985), and

14 accordingly protects prisoners from arbitrary state action, see Sandin v. Conner, 515 U.S. 472,

15 487 n.11 (1995). An equal protection claim may be established by showing that defendants

16 intentionally discriminated against a plaintiff based upon his membership in a protected class,

17 Hartmann v. Calif. Dept. of Corrs. and Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013), or that

18 similarly situated individuals were intentionally treated differently without a rational relationship

19 to a legitimate state purpose, Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 601-602

20 (2008).

21 When an equal protection claim is premised on unique treatment rather than on a

22 classification, the Supreme Court has described it as a “class of one” claim. Village of

23 Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). To state such a claim, a plaintiff

24 must allege that the defendant intentionally, and without rational basis, treated him differently

25 from those who were similarly situated. See Olech, 528 U.S. at 564. A class of one plaintiff

26 must show that the discriminatory treatment “was intentionally directed just at him, as opposed. . .

27 to being an accident or a random act.” Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001).

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1 C. Procedural Due Process

2 When an inmate is subject to disciplinary sanctions that include the loss of good-time

3 credits affecting the length of incarceration, due process requires that prison officials provide the

4 prisoner with (1) a written statement at least twenty-four hours before the disciplinary hearing

5 that includes the charges, a description of the evidence against the prisoner, and an explanation

6 for the disciplinary action taken; (2) an opportunity to present documentary evidence and call

7 witnesses, unless calling witnesses would interfere with institutional security; and (3) legal

8 assistance where the charges are complex or the inmate is illiterate. Wolff v. McDonnell, 418

9 U.S. 539, 563-70 (1974). “When prison officials limit an inmate’s efforts to defend himself, they

10 must have a legitimate penological reason.” Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir.

11 1992) (per curiam) (citations omitted). The right to call witnesses may be limited by “the

12 penological need to provide swift discipline in individual cases . . . [or] by the very real dangers

13 in prison life which may result from violence or intimidation directed at either other inmates or

14 staff.” Ponte v. Real, 471 U.S. 491, 495 (1985).

15 IV. MATERIAL FACTS

16 Plaintiff did not separately respond to Defendants’ Statement of Undisputed Facts

17 (DSUF), ECF No. 66-3, and those facts are therefore deemed undisputed unless otherwise

18 specified.

19 Plaintiff is a California inmate serving an indeterminate life sentence. He was housed at

20 California Health Care Facility (CHCF) during the relevant period. DSUF ¶ 1. On July 28, 2018,

21 Plaintiff was issued Rules Violation Report (RVR) log number 5421451, which indicated that on

22 July 28, 2018, Cyprian and another inmate were seen fighting under a stairwell in the Building 2

23 day room, that staff intervened, and that Cyprian and the other inmate complied with staff’s

24 verbal orders to get down without any staff use of force. DSUF ¶ 3. A hearing on the RVR was

25 conducted on August 20, 2018, by Lieutenant Shelley Amador, who was responsible for

26 conducting disciplinary hearings at CHFC at the time. DSUF ¶¶ 2, 4. She found plaintiff guilty

27 of fighting, and assessed a mitigated penalty of a loss of 61 days credit and a loss of 5 days yard

28 privileges. DSUF ¶ 4.

1 Plaintiff was able to call witnesses at the hearing but chose not to do so. DSUF ¶ 5. He

2 has never seen any surveillance footage of the fight or of any date that footage was taken of that

3 area. DSUF ¶ 6. Defendant Amador does not recall plaintiff asking to present video footage at

4 the hearing. Amador Decl. (ECF No. 66-4) at 2, ¶ 5. Plaintiff has averred that he did so, and a

5 form related to the RVR indicates that prior to the hearing plaintiff expressed a desire to view the

6 video footage and let the camera be his witness. ECF No. 84 at 26. As noted in the hearing

7 documentation, plaintiff pled guilty. Amador Decl. (ECF No. 66-4) at 2, ¶ 5; id. at 21 (exhibit).

8 In July 2018, CHCF used an audio/video surveillance system (AVSS) which could record

9 audio and/or video in various areas of the institution, including the E Facility Building 2 day

10 room. DSUF ¶ 7. CHCF operational procedure 01-047 governs the use of the AVSS, including

11 its use with respect to RVRs. The policy provides in relevant part, “Video footage will not be

12 provided for RVRs unless the footage is used in the creation of the RVR as evidence,” and does

13 not require video to be retrieved where no staff member used force against an inmate. DSUF ¶ 8.

14 AVSS footage was not used in the creation of RVR log number 5421451 and was not relied upon

15 as evidence or for any other purpose at the RVR hearing. DSUF ¶ 10. Pursuant to policy,

16 surveillance footage would not have been provided for RVR log 5421451, whether Plaintiff

17 requested it or not, because there was no force used by staff, and surveillance footage was not

18 used in the creation of the RVR or as evidence at the hearing, and was not used to support the

19 guilty finding. DSUF ¶ 11.

20 Defendant Amador declares that she did not treat Plaintiff differently or conduct his RVR

21 hearing differently than she did for any of the other inmate RVR hearings she conducted, but

22 rather conducted all RVR hearings in accordance with CDCR and CHCF policy. DSUF ¶ 12.2

23 V. ANALYSIS

24 A. Plaintiff Has Not Identified a Triable Equal Protection Issue

25 Defendant’s motion points to an absence of evidence supporting an essential element of

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27 2 Plaintiff accuses Amador of lying and attacks her declaration as a selective recitation of

applicable policies, ECF No. 84 at 10, 21, but he points to no evidence that creates a triable issue

28 of material fact.

1 plaintiff’s equal protection claim: that plaintiff was intentionally treated differently from similarly

2 situated individuals regarding the provision of video evidence in the RVR process. See Olech,

3 528 U.S. at 564 (in “class of one” case, plaintiff must plead and prove that the defendant

4 intentionally, and without rational basis, treated him differently from those who were similarly

5 situated.)3 Plaintiff’s opposition to the motion fails to identify any evidence of similarly situated

6 inmates being provided with the sort of video evidence that he was allegedly denied. Plaintiff

7 provides documentation of his own ability to view video footage related to other RVRs he has

8 received, see ECF No. 84 at 22-25, but this does nothing to support a conclusion that Lt. Amador

9 treated plaintiff differently than other similarly situated inmates.

10 Plaintiff’s equal protection theory seems to be based on his objection to the policy that

11 video footage need be disclosed only when authorities rely on it in the RVR process, and/or that

12 video footage is provided only when it supports an adverse disciplinary finding. The distinction

13 drawn in CHCF operational procedure 01-047 between using video footage as a sword and as a

14 shield is not a distinction that implicates equal protection, however. It is not a distinction based

15 on a characteristic the government may not consider under the equal protection clause, such as

16 race. Cf. Lee v. Washington, 390 U.S. 333 (1968) (prisoners are protected under the Equal

17 Protection Clause from invidious discrimination based on race). And to the extent that plaintiff

18 agrees the distinction is made consistently,4 that concession undermines any “class of one”

19 theory.

20 Because defendant has identified a complete failure of proof concerning an essential

21 element of plaintiff’s equal protection claim, summary judgment should be granted. See Celotex,

22 477 U.S. at 322.

23 B. Due Process

24 Defendant argues first that plaintiff’s claim under Wolff v. McDonnell, supra, fails as a

25 3 The complaint does not allege that plaintiff was discriminated against based on his membership

26 in a protected class. See ECF No. 1 at 4. Nor does plaintiff forward a class-based theory here.

ECF No. 84.

27 4 See ECF No. 84 at 23 (handwritten notation on plaintiff’s exhibit documenting disclosure of

incriminating video in different disciplinary proceeding: “Sir like I said see video(s) on when it’s

28 in CDCR’s favor!”).

1 matter of law because plaintiff cannot establish the predicate existence of a liberty interest

2 entitling him to the procedural protections he claims. Because the undersigned is persuaded on

3 this point, defendant’s other arguments need not be addressed.

4 It is axiomatic that procedural due process applies only where an individual faces a

5 governmental deprivation of life, liberty, or property. See U.S. Const. amend. XIV, § 1. If

6 protected interests are implicated, then the question becomes what procedures are required by due

7 process. Ingraham v. Wright, 430 U.S. 651, 672-73 (1977). The procedural rights that apply to

8 prison disciplinary hearings under Wolff, including a limited right to present evidence, apply only

9 where the proceeding implicates a liberty interest that is retained by an incarcerated person.

10 Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003). Accordingly, the Wolff protections

11 apply when the inmate faces loss of good time credits that will affect the length of his

12 incarceration. Wolff, 418 U.S. at 557 (finding protected liberty interest in forfeited good time

13 credits because credits lead to speedier release).5 There can be no compensable due process

14 violation where an inmate’s length of custody is not affected by the disciplinary sanction. See

15 Frank v. Schultz, 808 F.3d 762, 764 (9th Cir. 2015) (no compensable due process violation where

16 procedural error is later corrected through administrative process and prisoner ultimately did not

17 lose good-time credits). A due process claim is available only where disciplinary sanctions

18 directly affect the liberty of the inmate by extending his incarceration, or otherwise impose a

19 significant and atypical hardship in relation to the normal incidents of prison life. See Sandin v.

20 Conner, 515 U.S. 472, 484 (1995).

21 In California, inmates serving indeterminate life sentences may lose custody credits as a

22 disciplinary sanction, but the credit loss does not have a necessary impact on the length of their

23 incarceration. In contrast to determinately sentenced inmates, whose release dates are calculated

24 according to formulae that account for credits earned, indeterminate life prisoners must be

25 granted parole in a multi-factor determination in which good time credits have no necessary

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5 The Wolff court explained that inmates are not constitutionally entitled to earn good time

27 credits. However, when a state chooses to enact a system of credits that affect release dates, there

is a liberty interest in such credits that prevents their forfeiture in disciplinary proceedings absent

28 due process. Id.

1 effect. See Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016). Accordingly, district courts

2 throughout California have found that life-sentenced inmates do not have a liberty interest in

3 forfeited credits and Wolff claims are therefore unavailable to them. See, e.g., Richson-Bey v.

4 Watrous, 2022 U.S. Dist. LEXIS 194224 at *13, 2022 WL 14746909 (E.D. Cal. 2022); Lees v.

5 Mariscal, 2022 U.S. Dist. LEXIS 178003 at *20, 2022 WL 4591794 (N.D. Cal. 2022); Gibbs v.

6 Sanchez, 2019 U.S. Dist. LEXIS 129212 at * 16-17, 2019 WL 3059579 (C.D. Cal. 2019); Roman

7 v. Knowles, 2011 U.S. Dist. LEXIS 95410 at * 43, 2011 WL 3741012 (S.D. Cal. 2011).

8 Plaintiff’s brief loss of yard privileges also does not give rise to a state-created liberty

9 interest, because it does not involve an atypical and significant hardship. See Davis v. Small, 595

10 F. App’x 689, 691 (9th Cir. Mar. 21, 2014) (loss of phone and yard privileges did not give rise to

11 state-created liberty interest) (citing Sandin, 515 U.S. at 487); Baker v. Lugo, 2017 U.S. Dist.

12 LEXIS 60583, 2017 WL 1428734, at *3 (C.D. Cal. Mar. 21, 2017) (loss of access to yard

13 privileges, dayroom privileges, telephone privileges, and vendor package privileges did not

14 establish existence of state-created liberty interest).

15 Because plaintiff has come forward with no evidence to demonstrate the existence of a

16 liberty interest at stake in the disciplinary proceeding, and because neither the credit forfeiture nor

17 the loss of yard time creates such an interest as a matter of law, the claim fails. Plaintiff cannot

18 establish a violation of his due process rights even if he was wrongfully denied access to video

19 footage that would have been exculpatory. Defendant Amador is therefore entitled to summary

20 judgment.

21 VI. PRO SE PLAINTIFF’S SUMMARY

22 The magistrate judge is recommending summary judgment in favor of defendant Amador.

23 You have not identified any evidence showing that she intentionally treated you differently than

24 similarly situated inmates, so your equal protection claim fails. Because you are serving an

25 indeterminate life sentence, you do not have a protected liberty interest in the credits that you lost

26 in the RVR process. That means that you cannot pursue your due process claim. Inmates only

27 have a constitutional right to present evidence in an RVR hearing if the outcome would affect the

28 amount of time they serve, and that is not the case for lifers. Even if you were wrongly prevented

1 | from accessing and presenting the video footage, that would not violate your constitutional rights.

2 || Ifthe district judge adopts this recommendation, your case will proceed to trial on your Eighth

3 || Amendment failure to protect claim against defendants Constable and Thomas only.

4 CONCLUSION

5 For the reasons explained above, it is hereby recommended that:

6 1. Defendants’ motion for summary judgment be granted as to defendant Amador on

7 plaintiff's equal protection and due process claims; and

8 2. This case proceed to trial on plaintiff's Eighth Amendment failure to protect claim against

9 defendants Constable and Thomas only.

10 These findings and recommendations are submitted to the United States District Judge

11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days

12 | after being served with these findings and recommendations, any party may file written

13 || objections with the court and serve a copy on all parties. Such a document should be captioned

14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

15 || objections shall be served and filed within fourteen days after service of the objections. The

16 || parties are advised that failure to file objections within the specified time may waive the right to

17 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

18 || DATED: November 15, 2023 ~

19 ththienr—Chnp—e_

ALLISON CLAIRE

20 UNITED STATES MAGISTRATE JUDGE

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