The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 MYCHAL ANDRA REED, Case No.: 18-CV-361 JLS (DEB)
12 Plaintiff,
ORDER (1) ADOPTING REPORT
13 v. AND RECOMMENDATION ON
DEFENDANTS’ MOTION FOR
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SUMMARY JUDGMENT,
15 D. PARAMO, et al., (2) GRANTING DEFENDANT
16 Defendants. PARAMO’S MOTION IN ITS
ENTIRETY; AND (3) GRANTING
17 IN PART AND DENYING IN PART
DEFENDANT ZENDEJAS’S
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MOTION
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(ECF No. 234)
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22 Presently before the Court is Defendants D. Paramo (“Defendant Paramo”)
23 and E. Zendejas’s (“Defendant Zendejas”) (collectively, “Defendants”) Motion for
24 Summary Judgment (“Mot.,” ECF No. 181), as well as Plaintiff Mychal Andra Reed’s
25 (“Plaintiff”) opposition thereto (“Opp’n,” ECF No. 190), Plaintiff’s “Additional
26 Opposition Response[s]” (ECF Nos. 202, 204), and Defendant’s reply in support of the
27 Motion (“Reply,” ECF No. 209). Magistrate Judge Daniel E. Butcher has issued a Report
28 and Recommendation advising the Court to grant Defendant Paramo’s Motion in its
1 entirety and to grant in part and deny in part Defendant Zendejas’s Motion (“R&R,” ECF
2 No. 234). No Party filed objections to the R&R.
3 BACKGROUND
4 Judge Butcher’s R&R contains an accurate and thorough recitation of the relevant
5 background and evidence. See R&R at 2–7. This Order incorporates by reference the
6 background as set forth therein.
7 LEGAL STANDARD
8 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district
9 court’s duties in connection with a magistrate judge’s R&R. The district court must “make
10 a de novo determination of those portions of the report or specified proposed findings or
11 recommendations to which objection is made,” and “may accept, reject, or modify, in
12 whole or in part, the findings or recommendations made by the magistrate judge.” 28
13 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United
14 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely
15 objection, the Court “need only satisfy itself that there is no clear error on the face of the
16 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s
17 note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).
18 ANALYSIS
19 No party filed timely objections to the R&R. See R&R at 20 (providing that any
20 party may file objections on or before July 9, 2021). The Court therefore reviews the R&R
21 for clear error.
22 Defendants seek summary judgment on all remaining claims pending in this matter
23 (i.e., First Amendment retaliation claims). See id. at 8. The R&R initially concludes that
24 Plaintiff’s claims for legal mail interception, e-filing interference, and prison lockdown are
25 not viable because Plaintiff fails to identify the specific Defendants who allegedly
26 committed these actions. Id. at 10.
27 To the extent Plaintiff seeks to bring the aforementioned claims against Defendant
28 Paramo, the R&R finds that Defendant Paramo’s declaration specifically denying these
1 charges makes a prima facie showing of entitlement to summary judgment and shifts the
2 burden to Plaintiff; Plaintiff, however, fails to provide any evidence to raise a genuine issue
3 of material fact as to these issues. Id. at 10–11. As to Plaintiff’s claims against Defendant
4 Paramo for failure to investigate and prevent constitutional violations, the R&R concludes
5 that the undisputed evidence establishes that Defendant Paramo had no knowledge that any
6 of his subordinates were violating Plaintiff’s constitutional rights. Id. at 11–13. The R&R
7 further finds that Defendant Paramo is entitled to qualified immunity because the
8 undisputed facts establish that he did not violate any clearly established constitutional
9 rights of Plaintiff. Id. at 18–19. Accordingly, the R&R recommends granting Defendant
10 Paramo’s Motion in its entirety. Id. at 20.
11 As to Plaintiff’s claims against Defendant Zendejas, the R&R finds that Plaintiff’s
12 claim that Defendant Zendejas retaliated against him by coercing another correctional
13 officer to ransack Plaintiff’s cell fails because the operative amended pleading fails to cure
14 the inadequacies of pleading that previously resulted in dismissal of the claim and Plaintiff
15 fails to rebut Defendant Zendejas’s declaration that she had no involvement in the incident.
16 Id. at 13–14. Regarding Plaintiff’s claim that Defendant Zendejas pointed a rifle at him in
17 retaliation for complaints Plaintiff wrote to Defendant Zendejas’s superiors about her and
18 because an earlier Rules Violation Report (“RVR”) she issued was reduced to a
19 “counseling chrono,” the R&R concludes that Defendant Zendejas’s declaration that she
20 never pointed a Ruger Mini 14 semiautomatic rifle at Plaintiff is overly specific and leaves
21 open the possibility that she pointed some other type of rifle at Plaintiff; meanwhile,
22 Plaintiff’s sworn affidavit that Defendant Zendejas did point a rifle at him is sufficient to
23 place the issue in dispute. Id. at 14–16. Further, the R&R finds that Defendant Zendejas
24 fails to offer any evidence to establish the absence of a material fact regarding Plaintiff’s
25 allegation that she pointed a rifle at him in retaliation for his protected conduct. Id. at 16–
26 17. Finally, the R&R concludes that Plaintiff fails to present any evidence rebutting
27 Defendant Zendejas’s declaration explaining the circumstances concerning the January 15,
28 2018 RVR she issued and the legitimate penological objective underlying the same. Id. at
1 17-18. Because the undisputed facts establish that Defendant Zendejas did not violate any
2 ||clearly established constitutional right with regard to Plaintiff's cell search and RVR
3 ||retaliation claims, the R&R concludes that Defendant Zendejas is entitled to qualified
4 immunity for those claims. /d. at 18-19. However, the R&R finds that Defendant Zendejas
5 ||is not entitled to qualified immunity for the claim that she pointed a rifle at Plaintiff, as
6 || clearly established law holds that a law enforcement officer pointing a gun at an individual
7 without justification violates the Constitution. Jd. at 19. Accordingly, the R&R
8 ||recommends granting Defendant Zendejas’s Motion as to two of the three claims against
9 and denying her Motion as to the third claim. /d. at 20.
10 The Court finds no clear error in the R&R. Accordingly, the Court ADOPTS the
11 R&R; GRANTS Defendant Paramo’s Motion in its entirety; GRANTS Defendant
12 || Zendejas’s Motion as to Plaintiff's November 9, 2017 cell search and January 15, 2018
13 |]RVR claims; and DENIES Defendant Zendejas’s Motion as to Plaintiff's claim that
14 || Defendant Zendejas pointed a gun at him on November 9, 2017.
15 CONCLUSION
16 In light of the foregoing, the Court ADOPTS Judge Butcher’s R&R (ECF No. 234),
17 || GRANTS in its entirety Defendant Paramo’s Motion for Summary Judgment (ECF No.
18 || 181), and GRANTS IN PART AND DENIES IN PART, as stated above, Defendant
19 || Zendejas’s Motion for Summary Judgment (ECF No. 181).
20 IT IS SO ORDERED.
21 ||Dated: July 12, 2021 . tt f te
22 on. Janis L. Sammartino
3 United States District Judge
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