Gomez v. Alameda County Sheriff's Department

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

JUVENCIO GOMEZ,

7 Case No. 20-cv-01592-JSC

Plaintiff,

8 ORDER GRANTING MOTION FOR

v.

SUMMARY JUDGMENT

9

ALAMEDA COUNTY SHERIFF’S

10 DEPARTMENT, et al., Re: ECF No. 16

11 Defendants.

12 INTRODUCTION

13 Plaintiff, a former inmate at the Santa Rita County Jail (“SRJ”), filed this pro se civil rights

14 complaint under 42 U.S.C. § 1983 against the Alameda County Sheriff’s Department, Sheriff

15 Gregory Ahern, and Deputy M. Vargas. Plaintiff claims that the Defendants assigned him to the

16 jail’s administrative separation unit without justification, and that jail officials have obstructed and

17 interfered with his legal mail and phone calls with his attorney. The Court reviewed the complaint

18 and found that, when liberally construed, the allegations were sufficient to state a claim for relief

19 under 42 U.S.C. § 1983. (ECF No. 5.) Defendants filed a motion for summary judgment.1 (ECF

20 No. 16.) Plaintiff, whose mail has been returned as undeliverable, (see ECF Nos. 7, 14, 15), did

21 not file an opposition.2 Defendants filed a reply brief. (ECF No. 26.) For the reasons discussed

22 below, the motion for summary judgment is GRANTED.

23 BACKGROUND

24 Plaintiff was detained at SRJ from November 6, 2019, through March 16, 2020. (Vargas

25 Decl. ⁋ 6.) SRJ maintains classification files on its inmates to ensure that inmates are

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1 The parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

(ECF Nos. 4, 9.)

1 appropriately housed based on individual circumstances, as well as safety and security. (Id. ⁋ 3.)

2 Inmates are placed in administrative separation for the safety and security of the inmate, as well as

3 other inmates and staff. (Id. ⁋ 5.) While at SRJ, Plaintiff was placed in administrative separation

4 out of concern that he may have been a gang member in bad standing with his gang. (Id. ⁋ 6.)

5 Plaintiff’s classification file indicates that he is active in the Norteños gang, but states that Plaintiff

6 is not sure whether he is in good or bad standing. (Mot. for Summ. J. (MSJ) Ex. B, ECF No. 18 at

7 41; Vargas Decl. ⁋ 3.) Gang members who are in bad standing with their gang are often targeted

8 for violence or encouraged to commit violence to return to good standing. (Vargas Decl. ⁋ 7.)

9 Prior to Plaintiff’s incarceration at SRJ, an inmate advised staff that Plaintiff was in bad standing

10 with the Norteños gang, and an alert was placed in Plaintiff’s classification file. (Id. ⁋ 6.)

11 SRJ records show that Plaintiff made thirteen phone calls while at SRJ. (Key Decl. ⁋ 3;

12 MSJ Exs. C, D.) Two of those calls were made to the public defender’s office and were not

13 recorded. (Key Decl. ⁋ 4; MSJ Ex. D, ECF No. 18 at 48.) SRJ’s phone system is pre-programmed

14 with the telephone number of the public defender’s office, and the time and date of such calls are

15 recorded but not the calls themselves. (Id.) Plaintiff’s remaining calls were recorded. (Id. ⁋ 5.)

16 Recorded calls are preceded by a prompt that the calls may be monitored or recorded. (Id.) SRJ

17 Policy and Procedure 17.04.II.D states: “The Alameda County Sheriff’s Office reserves the

18 authority to monitor, including recording, conversations on any telephone within its facilities.

19 Attorney/Client telephone calls will not be recorded. Use of the telephones constitutes consent to

20 monitoring.” (MSJ Ex. G, ECF No. 18 at 57.)

21 While at SRJ, Plaintiff received one envelope of mail from the United State District Court.

22 (Semmel Decl. ⁋ 4.) The envelope was marked legal mail, signed by a deputy in the presence of

23 Plaintiff, and signed by Plaintiff. (MSJ Ex. E, ECF No. 18 at 50.) SRJ Policy and Procedure

24 17.01, requires that legal mail (other than mail from judges) be stamped, and opened and inspected

in the presence of the inmate. (MSJ Ex. H, ECF No. 18 at 70–71.) If no contraband is found, the

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mail is surrendered to the inmate and the envelope is kept on file for six months. (Id.) Non-legal

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mail is opened outside the inmate’s presence, to ensure it does not contain contraband. (Semmel

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1 ⁋ 7.) For outgoing legal mail, an inmate must notify the Housing Unit Deputy that the letter is

2 legal mail. (Id.) The deputy makes a visual inspection of it without reading the contents, then

3 verifies that the inmate’s name and identification number are correctly on the return address. (Id.)

4 The deputy seals the envelope in the presence of the inmate, initials it, and marks it confidential.

5 (Id.) Deputies followed this procedure for Plaintiff’s outgoing legal mail. (MSJ Ex. F, ECF No.

6 18 at 52–54.) Officials never mark outgoing mail, legal or non-legal, as undeliverable. (Id. ⁋ 6.)

7 Only the United States Post Office marks any undeliverable incoming legal mail. (Id.)

8 In his verified complaint, Plaintiff states that Defendant Vargas received information from

9 a confidential source that Plaintiff sold drugs at his last place of confinement but was never

10 caught. (Compl. at 3.) Plaintiff further states that Defendant Vargas placed him in administrative

11 separation because Plaintiff is in danger with enemies at SRJ. (Id.) The complaint also states that

12 the Alameda County Sheriff’s Department and SRJ officials unlawfully placed individuals in

13 administrative separation. (Id. at 5.) Plaintiff identifies seven other inmates whom he claims

14 suffered the same violations of their rights. (Id. at 4.) Finally, the complaint states that SRJ

15 illegally monitored, listened to, blocked, and hung up on calls to attorneys, and illegally removed

16 documents from legal mail, and falsely stamped it as undeliverable. (Id.)

17 DISCUSSION

18 I. Standard of Review

19 A district court may not grant a motion for summary judgment solely because the opposing

20 party has failed to file an opposition. See Cristobal v. Siegel, 26 F.3d 1488, 1494–95 & n.4 (9th

21 Cir. 1994) (unopposed motion may be granted only after court determines that there are no

22 material issues of fact). The Court may, however, grant an unopposed motion for summary

23 judgment if the movant’s papers are themselves sufficient to support the motion and do not on

24 their face reveal a genuine issue of material fact. See United States v. Real Property at Incline

25 Village, 47 F.3d 1511, 1520 (9th Cir. 1995) (local rule cannot mandate automatic entry of

26 judgment for moving party without consideration of whether motion and supporting papers satisfy

27 Fed. R. Civ. P. 56), rev’d on other grounds sub nom, Degen v. United States, 517 U.S. 820 (1996).

1 is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a

2 matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of

3 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute as to a material

4 fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the

5 nonmoving party. Id.

6 The moving party for summary judgment bears the initial burden of identifying those

7 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine

8 issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving

9 party has met this burden of production, the nonmoving party must go beyond the pleadings and,

10 by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for

11 trial. Id. If the nonmoving party fails to produce enough evidence to show a genuine issue of

12 material fact, the moving party wins. Id. A verified complaint may be used as an opposing

13 affidavit, as long as it is based on personal knowledge and sets forth specific facts admissible in

14 evidence. See Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996), amended, 135 F.3d 1318

15 (9th Cir. 1998) (treating allegations in prisoner’s verified amended complaint as opposing

16 affidavit).

17 At summary judgment, the judge must view the evidence in the light most favorable to the

18 nonmoving party. Tolan v. Cotton, 572 U.S. 650, 655 (2014). If more than one reasonable

19 inference can be drawn from undisputed facts, the trial court must credit the inference in favor of

20 the nonmoving party. Hunt v. Cromartie, 526 U.S. 541, 552 (1999).

21 II. Analysis

22 Defendants assert that Plaintiff’s claims are unexhausted, there are no allegations against

23 Defendant Ahern, the claims lack merit, and Defendant Vargas is entitled to qualified immunity.

24 The Court finds that Plaintiff’s claims are both meritless and unexhausted, and, therefore, does not

25 find it necessary to address Defendants remaining arguments.

26 1. Administrative Separation

27 Plaintiff has failed to raise a genuine dispute of material fact about whether his placement

1 a pretrial detainee.3 “Pretrial detainees have a substantive due process right against restrictions

2 that amount to punishment.” Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002). To

3 establish a substantive due process violation, Plaintiff must prove (1) that his pretrial housing

4 classification caused him “to suffer some harm or ‘disability,’” and (2) that the “purpose” of the

5 classification was “to punish.” Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004) (citing Bell

6 v. Wolfish, 441 U.S. 520, 538 (1979)). If he cannot prove that his housing conditions had both the

7 “purpose and effect” of unconstitutional punishment, no procedural protections are

8 constitutionally required. Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996). Here, Defendants

9 have shown that Plaintiff cannot carry his burden to prove a due process violation at trial.

10 First, Plaintiff has provided no information regarding what harm, if any, he suffered while

11 placed in administrative separation. See Demery, 378 F.3d at 1030 (for a harm or disability to

12 “constitute punishment . . . [it] must either significantly exceed, or be independent of, the inherent

13 discomforts of confinement”). In failing to file an opposition, the Court looks to the verified

14 complaint, which provides no information as to any harm suffered. Second, Plaintiff has

15 presented no evidence to contradict Defendants’ showing that he was placed in administrative

16 separation for the legitimate governmental objectives of jail safety and security. (See Vargas Decl.

17 ⁋ 6.) As a member of the Norteños gang who was possibly in bad standing, Plaintiff’s safety, as

18 well as that of other inmates and staff, were in jeopardy. (Id.) To prove punitive purpose, Plaintiff

19 must show either an express intent to punish, that the restrictions were excessive in relation to the

20 alternative non-punitive purpose, or that the restrictions could have been accomplished using less

21 harsh methods. See Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (citations omitted). Given

22 that Plaintiff has provided no details about his confinement in administrative separation, the facts

23 on record are insufficient to prove punitive purpose.

24 For much the same reasons, Plaintiff also cannot prove a procedural due process violation.

25 The record shows that Plaintiff’s placement in administrative separation was to maintain safety

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3 Plaintiff’s complaint was executed on February 22, 2020. (Compl. at 3.) Based on the mailbox

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rule, the complaint is deemed constructively filed on the date Plaintiff signed the document. See

1 and security at SRJ and did not have the purpose of punishment. See Bell, 441 U.S. at 546

2 (“[m]aintaining institutional security and preserving internal order and discipline are essential

3 goals that may require limitation or retraction of the retained constitutional rights of both

4 convicted prisoners and pretrial detainees.”); see also Martucci v. Johnson, 944 F.2d 291, 294–95

5 (6th Cir.1991) (prisoner placed in segregation for administrative reasons related to prison security

6 did not have substantive due process right to be free of segregation, and failure to provide a

7 hearing did not violate procedural due process); cf. Mitchell, 75 F.3d at 524 (finding plaintiff was

8 entitled to a due process hearing because his placement in “disciplinary segregation” had “the

9 purpose and effect . . . [of] punishment”) (emphasis added). Nor has Plaintiff provided any

10 evidence establishing any laws or regulations that provide him a liberty interest protected by due

11 process. See Henderson v. City & Cty. of San Francisco, No. C05-234 VRW, 2006 WL 3507944,

12 at *14 (N.D. Cal. Dec. 1, 2006) (finding that county jail regulations made pursuant to California

13 Code of Regulations, title 15 § 1053, do not create a liberty interest). Based on the foregoing, it is

14 undisputed that Plaintiff’s placement in administrative separation was for non-punitive reasons.

15 Accordingly, Defendants are entitled to summary judgment on this claim.

16 2. Phone Calls

17 Plaintiff claims that his phone calls to his attorney were monitored and blocked. He has

18 not, however, shown a genuine dispute of material fact regarding this claim. An expectation of

19 privacy in outbound calls by an inmate is not objectively reasonable, and the recording of such

20 calls does not violate the Fourth Amendment. See United States v. Van Poyck, 77 F.3d 285, 290–

21 91 (9th Cir.1996). The Court in Van Poyck specifically excluded from its analysis “‘properly

22 placed’ telephone calls between a defendant and his attorney.” Id. at 291 n.9.

23 The record fails to establish that Plaintiff’s calls to his attorney were recorded. The record

24 is undisputed that Plaintiff made thirteen phone calls while at SRJ. (See Key Decl. ⁋⁋ 3–5; MSJ

25 Exs. C, D.) The evidence regarding those calls show that two were made to the public defender’s

26 office and were not recorded. (See MSJ Ex. D.) The other eleven calls were non-legal and were

27 recorded. (MSJ Ex. C.) Plaintiff has failed to produce any evidence establishing that any of the

1 create a triable issue of fact. See Celotex, 477 U.S. at 323 (holding that the nonmoving party must

2 go “beyond the pleadings” and designate facts that show a genuine issue for trial). Defendants are

3 granted summary judgment on this claim.

4 3. Legal Mail

5 Defendants are also entitled to summary judgment on Plaintiff’s due process claims arising

6 out of alleged violations of his legal mail. The Ninth Circuit “recognize[s] that prisoners have a

7 protected First Amendment interest in having properly marked legal mail [including civil mail]

8 opened only in their presence.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017).

9 “Mail from the courts, as contrasted to mail from a prisoner’s lawyer, is not legal mail.” Keenan

10 v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). Prison officials may institute procedures for

11 inspecting “legal mail,” i.e., mail sent between attorneys and prisoners, and mail sent from

12 prisoners to the courts. See Royse v. Superior Court, 779 F.2d 573, 574–75 (9th Cir. 1986)

13 (outgoing mail to court); Wolff v. McDonnell, 418 U.S. 539, 576–77 (1974) (incoming mail from

14 attorneys).

15 Defendants have presented uncontradicted evidence that at no time were documents taken

16 out of Plaintiff’s legal mail, nor was the mail marked undeliverable. Plaintiff’s outgoing legal

17 mail was marked, “Confidential Legal Mail”. (MSJ Ex F.) SRJ policy allows only a cursory

18 visual inspection of outgoing legal mail, without the contents being read. (MSJ Ex. H at 11.) The

19 record also shows that Plaintiff’s incoming mail from the court was marked confidential based on

20 prison policy. (MSJ Ex. E.) Plaintiff has submitted no evidence to the contrary. None of his

21 statements in the complaint provide sufficient evidence to create a triable issue of fact. His

22 allegations in the complaint are generalized (“stamping [mail] falsely as undeliverable”, “taking

23 documents out [of] our legal mail to the courts”), and insufficient to establish a genuine dispute of

24 material fact. See Celotex, supra, 477 U.S. at 323. Defendants are entitled to summary judgment

25 on this claim.

26 4. Exhaustion

27 The Court also finds the claims unexhausted. The Prison Litigation Reform Act (“PLRA”)

1 court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “No action shall be brought with respect to

2 prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in

3 any jail, prison, or other correctional facility until such administrative remedies as are available are

4 || exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and a prisoner’s failure to comply

5 || with this requirement cannot be excused by the courts. Ross v. Blake, 136 S. Ct. 1850, 1856-58

6 || (2016).

7 The undisputed facts in the record show that Plaintiff did not grieve any of the issues

8 || raised in his complaint. (See Carausu Decl. P 4.) All grievances are maintained by the Alameda

9 County Sheriff’s Office in its normal course of business; there are no records of any grievances

10 || submitted by Plaintiff during the relevant period. Ud.) There is nothing to suggest that Plaintiff

11 was unaware of the grievance process or was prevented from filing a grievance. In fact, on the

12 || form complaint, Plaintiff marked “YES” in the box next to the question asking: “Is there a

5 13 || grievance procedure in this institution?” (Compl. at 1.) The next question in the complaint asks:

14 || “Ifso, did you present the facts in your complaint for review through the grievance procedure?”,

15 || to which Plaintiff failed to mark either yes or no.* (Id.) In failing to file an opposition, Plaintiff

16 || presents no evidence showing that his claims were exhausted. Defendants have thus met their

3 17 burden of proving their exhaustion defense.

18 CONCLUSION

19 Defendants’ motion for summary judgment (ECF No. 16) is GRANTED. The Clerk shall

20 || terminate ECF. No. 16, enter judgment in favor of Defendants, and close the file.

21 IT IS SO ORDERED.

22 Dated: February 8, 2021

ACQUELINE SCOTT CORLE

24 United States Magistrate Judge

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07 * The form complaint then asks for the inmate to list the appeal number, date, and result of each

appeal. (Compl. at 1.) Instead of listing information relating to his appeal at each level of review,

28 Plaintiff lists his legal claims for relief: violations of the 14th Amendment, due process violation,

and violations of certain disciplinary actions. (Ud. at 1-2.)