# Reed v. Paramo > District Court, S.D. California · July 12, 2021 URL: https://www.frixlaw.com/law-library/cases/10083987 ## Case - **Court:** District Court, S.D. California - **Decided:** July 12, 2021 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10083987 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 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 14 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 18 MOTION 19 (ECF No. 234) 20 21 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 24 25 26 27 28 4 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10083987. Public record. Not legal advice.