Yablonsky v. California Department of Correction & Rehabilitation

1 UNITED STATES DISTRICT COURT

2 SOUTHERN DISTRICT OF CALIFORNIA

3 John Henry YABLONSKY, Case No.: 18-cv-1122-AGS

4 Plaintiff, ORDER GRANTING DEFENDANTS’

SUMMARY-JUDGMENT MOTION

5 v.

(ECF 168) AND GRANTING IN PART

6 CALIFORNIA DEPARTMENT OF PLAINTIFF’S MOTION FOR

CORRECTIONS AND JUDICIAL NOTICE (ECF 164)

7

REHABILITATION, et al.,

8 Defendants.

9

10 “[B]road as the constitutional concept of liberty is, it does not include the right to

11 xerox.” Jones v. Franzen, 697 F.2d 801, 803 (7th Cir. 1983). That aphorism largely

12 disposes of this civil-rights lawsuit, in which an inmate accuses prison staff of

13 unconstitutionally burdening his photocopying rights. The inmate also contends that prison

14 officials repeatedly retaliated against him. But those allegations are either unfounded or the

15 challenged actions were justified by legitimate penological interests. Thus, defendants are

16 entitled to summary judgment.

17 BACKGROUND

18 Plaintiff John Yablonsky is incarcerated at Richard J. Donovan Correctional Facility,

19 where he uses the law library. (ECF 168-5, at 22–23.) Library staff schedule library

20 appointments in two- or four-hour blocks. (ECF 168-3, at 2.) But nonlibrary staff are

21 responsible for providing the appointment slips and transporting inmates at the assigned

22 time. (ECF 168-5, at 23–24.) Designated priority users are allowed at least four hours of

23 library access per week. (ECF 168-3, at 2; ECF 177, at 119–20.)

24 During these sessions, inmates may request copies of their legal documents

25 “necessary for initiating or maintaining a court action.” (ECF 168-3, at 3–4.) Copying costs

26 are ten cents per page. (Id.) But indigent inmates get photocopies of legal paperwork for

27 free. (Id.) Before copying a document, library staff must scan it for contraband, such as

28 “tattoo templates, gang insignia or logos, [non-legal] personal correspondence,” or

1 “pornography.” (See id. at 3–4.) To conduct this inspection, library staff place the

2 documents “face down on the counter . . . within the inmate’s view” and flip them over one

3 by one for cursory review. (Id.)

4 Yablonsky sued prison officials under 42 U.S.C. § 1983 for civil-rights violations

5 stemming from this document-scanning policy. First, he charges that the policy violates his

6 First Amendment free-speech rights on its face. (ECF 62, at 39–40, 69–70, 84–85.) Second,

7 he argues that the policy infringes his rights as applied. That is, he contends that before

8 copying his confidential legal documents, the defendant librarians—Blahnik, Powell,

9 Tiscornia, and Robles—actually read them, rather than just glancing over them for

10 contraband. (ECF 62, at 84.) Finally, Yablonsky accuses the defendant librarians, litigation

11 coordinator McGuire, and prison official Martinez of retaliating against him for filing

12 grievances about these misdeeds. (ECF 62, at 79.)

13 Defendants move for summary judgment on all claims.

14 DISCUSSION

15 A. Summary-Judgment Standard

16 “The court shall grant summary judgment if the movant shows that there is no

17 genuine dispute as to any material fact and the movant is entitled to judgment as a matter

18 of law.” Fed. R. Civ. P. 56(a). A dispute over a material fact is “genuine” when “the

19 evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

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

21 judgment “may not rest upon the mere allegations or denials of his pleading” and instead

22 “must set forth specific facts showing that there is a genuine issue for trial.” Id. (citation

23 omitted). There is “no genuine issue for trial” when “the record taken as a whole could not

24 lead a rational trier of fact to find for the nonmoving party . . . .” Ricci v. DeStefano,

25 557 U.S. 557, 586 (2009).

26

27

28

1 B. Facial Challenge to the Scanning Policy

2 Yablonsky first attacks the facial validity of the prison’s scanning policy, arguing

3 that it chills his protected speech by forcing him to share his confidential legal documents

4 with his litigation opponents. (ECF 62, at 84–85.)

5 “[A] prison inmate retains those First Amendment rights that are not inconsistent

6 with his status as a prisoner or with the legitimate penological objectives of the corrections

7 system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). In determining whether a prison

8 regulation is reasonably related to a legitimate penological interest, courts consider the

9 following factors: (1) “whether there is a valid, rational connection between the regulation

10 and the legitimate governmental interest” used to justify the regulation; (2) whether

11 prisoners retain “alternative means of exercising the right” at issue; (3) the “impact

12 accommodation of the asserted constitutional right will have on guards, inmates, and the

13 allocation of prison resources generally”; and (4) whether the prisoner has identified

14 “obvious, easy alternatives” to the regulation that could be implemented at a minimal cost

15 to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89–90 (1987) (quotation

16 marks omitted).

17 1. Rational Relationship to a Legitimate Governmental Interest

18 The first and most critical Turner factor is whether the action is rationally connected

19 to a legitimate governmental goal. See Prison Legal News v. Cook, 238 F.3d 1145, 1151

20 (9th Cir. 2001) (deeming this Turner factor the “sine qua non”). “This factor consists of

21 three sub-requirements”: the rule must be (A) “legitimate,” (B) “neutral,” and

22 (C) “rationally related to [the government’s] objective.” Prison Legal News v. Ryan,

23 39 F.4th 1121, 1131 (9th Cir. 2022).

24 a. Legitimate

25 First, “the governmental objective underlying the policy [must be] legitimate.” Ryan,

26 39 F.4th at 1131. The librarians claim that the scanning policy furthers three penological

27 goals: “preventing . . . contraband,” “minimizing the coercion of indigent inmates,” and

28 advancing “the efficient use of resources.” (ECF 168, at 20.) These are legitimate

1 objectives. See Bell v. Wolfish, 441 U.S. 520, 551 (1979) (noting that deterring “smuggling

2 contraband” was a legitimate prison goal justifying some limitations on inmates’ First

3 Amendment rights); Rickman v. Avaniti, 854 F.2d 327, 328 (9th Cir. 1988) (listing

4 “maintaining prison safety” and blocking “contraband” as “important objectives of penal

5 institutions”); Cook, 238 F.3d at 1151 (considering how a prison regulation affected the

6 legitimate government objective of “not substantially deplet[ing] prison resources”).

7 b. Neutral

8 The next question is whether the regulation “operate[s] in a neutral fashion, without

9 regard to the content of the expression.” Thornburgh v. Abbott, 490 U.S. 401, 415 (1989).

10 The scanning policy here applies evenly to all legal documents submitted for copying,

11 regardless of content. Thus, it is neutral. See Ryan, 39 F.4th at 1132 (noting that a prison

12 rule is neutral “as long as it applies to specific types of materials solely on the basis of the

13 materials’ potential effect on the legitimate objectives” and is “unrelated to the suppression

14 of expression” (citation and quotation marks omitted)).

15 c. Rational Relationship

16 Finally, the Court must determine whether there is a rational relationship between

17 the neutral rule and the proffered objective. “The rational-relationship inquiry is highly

18 deferential.” Ryan, 39 F.4th at 1132. A prison rule fails that inquiry if “the logical

19 connection between the regulation and the asserted goal is so remote as to render the policy

20 arbitrary or irrational.” Id. In fact, courts “may uphold a regulation even if prison officials

21 are unable to prove” that “problems” occurred “in the past” or are “likely to” occur “in the

22 future.” Id. (quotation marks omitted). “Nor must the officials be able to demonstrate that

23 the policy in fact advances the jail’s interests.” Id. “It is enough that officials might

24 reasonably have thought that the policy would do so.” Id. (cleaned up).

25 The policy here comfortably clears that low bar. Although defendants need not prove

26 past problems, they nonetheless offer evidence that “inmates have submitted tattoo

27 templates, gang insignia or logos, personal correspondence, photographs, and pornography

28 as legal documents for copying.” (ECF 168-3, at 4.) And “indigent inmates are sometimes

1 coerced by non-indigent inmates to request copies on their behalf in an attempt to avoid

2 copying fees.” (Id.) The scanning policy helps prevent the spread of contraband and

3 discourages indigent victimization. (See id.) At least, an official could rationally think so.

4 After all, as Yablonsky acknowledges, all legal-document copies are returned to the inmate,

5 who takes them “back to [the] inmate[’]s yard.” (ECF 177, at 62.) Thus, any photocopied

6 contraband—or permissible materials that an indigent inmate was coerced into copying—

7 could easily be distributed to other prisoners.

8 Yablonsky rejects this reasoning on two grounds. First, he argues that the scanning

9 is unnecessary because inmates are already searched for contraband before entering the

10 library. (ECF 177, at 16, 172; see also ECF 168-5, at 72.) But such entryway inspections

11 won’t help coerced indigent inmates, nor prevent prisoners from creating banned content

12 after entering the library. For instance, after being frisked at the entrance, an unscrupulous

13 inmate could find a quiet spot in the library, write down elaborate violent plans (or sketch

14 a pornographic drawing), and then present this contraband for copying as “legal

15 documents.” A doorway search would not detect or deter such a ruse.

16 Second, Yablonsky points out that the prison already permits certain erotica and

17 tattoo magazines, so the scanning policy won’t stem the tide of body art and pornography.

18 (ECF 177, at 42–43.) This argument is a straw man. The question is not whether the policy

19 helps limit all pornography and tattoos, but whether it helps curb banned pornography and

20 tattoos. Even if every inmate had prison-approved tattoos and pornography, officials would

21 still have an interest in rooting out more dangerous categories, such as gang-related body

22 art or child pornography. See Mauro v. Arpaio, 188 F.3d 1054, 1063 (9th Cir. 1999)

23 (approving a prison’s total “prohibition on sexually explicit materials”).

24 At any rate, the “fit” between the policy and the legitimate goal need not be “exact”;

25 it must merely be “rational.” Mauro, 188 F.3d at 1060. Under this “highly deferential”

26 standard, the Court concludes that the scanning policy is rationally related to a legitimate

27 governmental interest. See Ryan, 39 F.4th at 1132. Thus, the most important Turner factor

28 favors upholding the prison policy.

1 2. Alternatives for Inmates

2 Under the next Turner factor, the Court asks whether inmates retain “alternative

3 means of exercising the right” to seek redress from the courts, that is, without library staff

4 rummaging through their legal documents. Turner, 482 U.S. at 90. Yes, they do. Prisoners

5 may bypass the photocopy process altogether and simply mail their original legal

6 documents, without retaining copies. Even for pleadings service, at least in this district, the

7 notice of electronic filing that is automatically sent to all attorneys “constitutes service of

8 the filed document,” so no paper copies are required. See S.D. Cal. Civ. LR 5.4(c).

9 Yablonsky concedes that if he mailed his original documents without copying them, prison

10 staff would not be permitted to read them. (ECF 168-5, at 32–33; see also id. at 368–69

11 (“Processing Outgoing Confidential Mail” policy).) He also admits that the confidential

12 legal mail services were always available to him. (ECF 168-5, at 32–33.)

13 Even so, Yablonsky maintains that this option is unreasonable because it means

14 mailing his only copy, which may inhibit his ability to litigate. (ECF 177, at 69.) But

15 inmates who want a record of their legal submissions may manually transcribe copies.

16 Having filed hundreds of handwritten or hand-notated pages already in this matter,

17 Yablonsky is undoubtedly capable of doing so. While this alternative is inconvenient,

18 inmates need not keep paperwork duplicates to prosecute their cases. Thus, Yablonsky has

19 alternatives available to exercise his rights.

20 3. Impact of Accommodation

21 Third, the Court considers “the impact accommodation of the asserted constitutional

22 right will have on guards and other inmates, and on the allocation of prison resources

23 generally.” Turner, 482 U.S. at 90. Yablonsky proposes that inmates be granted

24 unrestricted photocopying rights for legal matters. But such a policy would inevitably spur

25 the circulation of inflammatory materials, such as gang insignia and banned pornography,

26 making the prison more dangerous for guards and prisoners alike. See Mauro, 188 F.3d

27 at 1061 (holding that “unrestricted access to sexually explicit materials would expose the

28 female detention officers . . . to sexual harassment” and “lead to fights between inmates,”

1 jeopardizing “not only the safety of jail employees, but also other inmates”); Bruce v. Ylst,

2 351 F.3d 1283, 1289 (9th Cir. 2003) (“[P]risons have a legitimate penological interest in

3 stopping prison gang activity.”); Koutnik v. Brown, 351 F. Supp. 2d 871, 878 (W.D. Wis.

4 2004) (“Prison officials have a strong interest in suppressing gang activity,” including

5 “gang literature or symbols.”). As for the proposal’s financial impact, officials reasonably

6 believe that prison resources of ink, paper, and staff would be in greater demand. See

7 Harrell v. Keohane, 621 F.2d 1059, 1061 (10th Cir. 1980) (rejecting inmate’s claimed right

8 to “free unlimited access to a photocopying machine” and noting that prison policies must

9 account for “budgetary considerations”). That would place financial pressure on the

10 institution and impair other inmates’ access to these resources. These burdens weigh

11 against Yablonsky’s proposal.

12 4. Prison’s Ready Alternatives

13 The final Turner factor concerns whether “ready alternatives” exist to accommodate

14 an inmate. Turner, 482 U.S. at 90. The policy need not be the “least restrictive

15 alternative[,]” but “obvious, easy alternatives” may indicate “the regulation is not

16 reasonable . . . .” Id.

17 Yablonsky proposes several substitutes for the current policy: shaking the

18 documents, fanning them out, scanning them upside down, reviewing the copy machine

19 memory after photocopying, or immediately sealing the copies in envelopes to be mailed

20 from the library. (ECF 177, at 73; ECF 168-5, at 37.) Yet these alternatives do not

21 accomplish the identified goals of suppressing inflammatory materials, protecting indigent

22 inmates, and preserving prison resources. Shaking and fanning papers does not allow

23 librarians to intercept banned tattoo templates or pornography. Likewise, reviewing the

24 photocopier’s memory is a feeble defense against written contraband, and it would not save

25 paper and ink. It is merely a retroactive means to identify a wrongdoer, after the contraband

26 has spread and the paper and ink are wasted. (See ECF 177, at 14; 464–81; 494–500; 501–

27 02.) Plus, this proposal would allow librarians to read an inmate’s documents outside the

28 inmate’s presence. That would only exacerbate Yablonsky’s privacy concerns. Finally,

1 none of Yablonsky’s alternatives, including sealing the copies in the library, addresses the

2 prison’s last goal: discouraging well-off inmates from bullying poor ones into making

3 photocopies, to dodge copying fees.

4 In short, Yablonsky’s failure to identify “ready alternatives” supports the scanning

5 policy’s “reasonableness.” See Turner, 482 U.S. at 90. Because all four Turner factors

6 favor the current policy, defendants are entitled to summary judgment on Yablonsky’s

7 facial challenge.

8 C. As-Applied Challenge to the Scanning Policy

9 Next, Yablonsky argues that even if the scanning policy is generally constitutional,

10 the librarians are applying it in a way that violates his constitutional rights. He claims that,

11 rather than simply scanning each page, they are “READING” his “protected papers” before

12 copying them. (See, e.g., ECF 177, at 74.) Thus, he asserts that the policy, as applied,

13 violates his free-speech rights.

14 Assuming these allegations are true, Yablonsky must still overcome the librarians’

15 qualified immunity. The qualified immunity doctrine shields government officials from

16 civil liability so long as “their conduct does not violate clearly established statutory or

17 constitutional rights of which a reasonable person would have known.” Pearson v.

18 Callahan, 555 U.S. 223, 231 (2009) (citation omitted). “[P]laintiff bears the burden of

19 proof that the right allegedly violated was clearly established.” Tarabochia v. Adkins,

20 766 F.3d 1115, 1125 (9th Cir. 2014) (citation and bracketing omitted). Official actions only

21 violate clearly established law “when, at the time of the challenged conduct, the contours

22 of a right are sufficiently clear that every reasonable official would have understood that

23 what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation

24 and internal punctuation omitted). Caselaw need not have addressed the precise factual

25 scenario, “but existing precedent must have placed the statutory or constitutional question

26 beyond debate.” Id. (citations omitted).

27

28

1 In his hunt for a clearly established photocopying right, Yablonsky returns again and

2 again to the well-worn rights regarding legal mail.1 (See, e.g., ECF 177, at 14–15

3 (complaining that librarians “read ‘EVERY COPYING REQUEST PAGE,’” including

4 “letters drafted to plaintiff[’s] lawyer, Courts, and other legal actions”); id. at 73 (“right to

5 confidential correspondence”).) But his right to private legal correspondence isn’t at issue.

6 After all, Yablonsky candidly admits that he freely sends confidential mail and has never

7 witnessed “staff in the [mailroom in the] building read my legal mail.” (See ECF 168-5,

8 at 33.) The issue here is quite different: Does Yablonsky have a constitutional right to use

9 a copy machine—to memorialize his legal mailings—without close review by prison staff?

10 On this point, the case law is deafeningly silent.

11 Indeed, precedents cut against Yablonsky. Courts have rejected “any constitutional

12 right to free and unlimited photocopying.” Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir.

13 1989); see also Jones, 697 F.2d at 803 (“[B]road as the constitutional concept of liberty is,

14 it does not include the right to xerox.”). Photocopying practices typically raise

15 constitutional concerns only when they impede access to courts, which is a high bar. See,

16 e.g., Johnson v. Moore, 948 F.2d 517, 521 (9th Cir. 1991) (“A denial of free photocopying

17 does not amount to a [constitutional] denial of access to the courts,” absent “actual

18 injury.”). As evidenced by Yablonsky’s thousands of pages of court filings here, he has

19 ready access to the judicial system. At any rate, this Court has not found—nor has

20 Yablonsky offered—any case holding that a prison librarian’s reading of legal papers, by

21 itself, hinders court access. See Jones, 697 F.2d at 802–04 (reversing a preliminary

22

23

24

25 1 Yablonsky also relies heavily on the governing California regulations for

photocopies and searches. (See ECF 177, at 53–63.) But “an official’s clear violation of a

26

state administrative regulation does not allow a § 1983 plaintiff to overcome the official’s

27 qualified immunity.” Elder v. Holloway, 510 U.S. 510, 515 (1994); see also Campbell v.

Burt, 141 F.3d 927, 930 (9th Cir. 1998) (“As a general rule, a violation of state law does

28

1 injunction that prevented prison librarians from photocopying legal documents “out of [the

2 inmate’s] sight”).

3 Perhaps future courts will divine a constitutional right to photocopy free from prying

4 eyes. Or maybe future jurists will conclude that prison officials encroach on First

5 Amendment correspondence rights when they read legal papers—ultimately bound for the

6 post office—before photocopying them. But that day is not yet here. Or, to put it in legal

7 terms, plaintiff has not shown that the constitutional question is “beyond debate.” See

8 Ashcroft, 563 U.S. at 741. Thus, the librarians have qualified immunity on any claim that

9 they improperly read legal files before copying them.

10 D. Retaliation Claim2

11 Yablonsky’s last claim is that defendants retaliated against him for filing grievances

12 against them. In the prison context, First Amendment retaliation requires: “(1) An assertion

13 that a state actor took some adverse action against an inmate (2) because of (3) that

14 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

15 First Amendment rights, and (5) the action did not reasonably advance a legitimate

16 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (citation and

17 footnote omitted). Defendants need only negate one element to prevail. See Celotex Corp.

18 v. Catrett, 477 U.S. 317, 323 (1986) (“[C]omplete failure of proof concerning an essential

19 element of [the] case necessarily renders all other facts immaterial.”). Yablonsky decries

20 six varieties of retaliation, addressed below.

21

22

23

2 Yablonsky asks the Court to take judicial notice of six other federal complaints

24

against defendants Blahnik, Tiscornia, and McGuire. (ECF 164, at 2–7.) A court may

25 judicially notice a fact that is not “subject to reasonable dispute.” Fed. R. Evid. 201(b); see

Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). The existence of these six

26

complaints is not subject to dispute. So the motion is GRANTED, in that this Court notices

27 their existence. But those complaints’ unproven allegations are not themselves

indisputable. So, to the extent Yablonsky offers them as evidence for his own allegations

28

1 1. Reading Plaintiff’s Legal Documents

2 Yablonsky charges the defendant librarians—Blahnik, Powell, Robles, and

3 Tiscornia—with reading his “legal mail” “to get even [with Yablonsky] for appealing their

4 misconducts about reading legal mail and other requests for relief . . . .” (ECF 62, at 80;

5 id. at 80–82.) In other words, after Yablonsky complained about the librarians reading his

6 papers, he insists they “retaliated” against him by . . . reading his papers. This is

7 continuation, not retaliation. Yablonsky must show that the librarians mistreated him

8 “because of” his accusations against them. See Rhodes, 408 F.3d at 567. Yet he never

9 suggests that the ongoing paper-reading became more frequent or obnoxious post-

10 grievance. Nor does he offer any statements implying that their motivation for reading his

11 papers changed after his complaints.

12 Thus, no reasonable jury could surmise that the librarians continued reading

13 Yablonsky’s papers—in the same manner as before his grievance—“because of” that

14 grievance. See Patkins v. Lisk, No. 16-CV-04347-EMC, 2017 WL 4773372, at *2

15 (N.D. Cal. Oct. 23, 2017) (ruling that when prison officials take “adverse action . . . before

16 the protected conduct,” that action was not “in retaliation for the protected conduct”

17 (cleaned up)).

18 2. Limiting Library Access

19 According to Yablonsky, the same defendant librarians also retaliated by restricting

20 his library access. (ECF 62, at 80–82.) After filing grievances against them, Yablonsky

21 claims they cut his library hours, violated prison regulations by denying him priority

22 status—that is, at least four hours of weekly library time—and excluded him altogether for

23 the week of October 16 to 22, 2016. (ECF 177, at 17, 142; see also ECF 168-5, at 183

24 (prison operations manual: library priority status).)

25 There is scant evidence to support Yablonsky’s allegation of a retaliatory reduction

26 in library hours. The library’s highest priority status—“Priority Legal User (PLU)”—is

27 entitled to “a minimum of 4 hours per calendar week of requested access, as resources are

28 available.” (ECF 168-5, at 183.) In the two weeks immediately after Yablonsky’s

1 October 13, 2016 grievance, he continued to be scheduled library time of at least four hours

2 per week. (See ECF 168-5, at 343–45.) In fact, excluding major holidays, he only fell

3 below a “priority” level of scheduled time in 5 of the 54 weeks following that grievance.

4 (See ECF 168-5, at 195–345.) On the other hand, in 8 of those same 54 non-holiday weeks,

5 he was slated for at least 10 hours of library access. (See ECF 168-5, at 195–97, 202–13,

6 217–20, 226–29, 291–95, 299–302.) On four occasions, post-grievance, he was scheduled

7 for 12 hours of weekly access—more than he ever got before the grievance. (Compare

8 ECF 168-5, at 346–64 (pre-grievance; best week of 11 hours and 10 minutes) with id.

9 at 202–13, 217–20 (post-grievance; 12 hours).) For reference, the attached appendix

10 summarizes Yablonsky’s scheduled library time before and after his prison grievances.3 It

11 is hard to discern any retaliation from this data.

12 Regardless of the hours, though, Yablonsky complains that he was deprived of

13 library priority. But throughout his incarceration at Donovan, Yablonsky’s status ping-

14 ponged between “Preferred Legal User”4 and “General Legal User.” From August 2016

15 until his October 13, 2016 grievance, he was granted Preferred status 55% of the time. (See

16 ECF 168-5, at 346–64 (Preferred 12 times, General 10 times).) During his 153 library visits

17 after that grievance, his Preferred rate improved to 77%. (See ECF 168-5, at 195–346

18 (Preferred 118 times, General 35 times).)

19

20

21

3 Arguably, Yablonsky’s protected activity began as early as September 29, 2016,

22

when he mailed Powell a prison Form 22, stating, “I witnessed you reading throu[]gh my

23 legal writings,” which “is illegal. . . . PLEASE STOP.” (See ECF 66, at 94.) But

Yablonsky’s retaliation case is even weaker with that starting point, as he got a whopping

24

eight hours of library access the very next week. (See ECF 168-5, at 348–51.) For

25 Yablonsky’s benefit, then, the Court presumes the protected activity started with the

October 13, 2016 filing of his Form 602 inmate appeal. (See ECF 66, at 117–18.)

26

27 4 Although prison regulations define a “Priority Legal User (PLU)” (see ECF 168-5,

at 176–77, 183), the prison library log uniformly uses the term “Preferred Legal User.”

28

1 Yablonsky might argue, however, that post-grievance, he was relegated to General

2 status for each of his next eight library trips (and 13 of his next 14). (See ECF 168-5,

3 at 325–46; see also appendix, below.) But this designation did not appreciably impair his

4 library use. From the filing of his grievance until the end of 2016, he was granted the

5 equivalent of a priority-level time allotment—that is, at least four hours—in seven of nine

6 weeks, excluding major holidays. (See ECF 168-5, at 323–46.) In any event, there is no

7 evidence that he was ever misclassified as a General Legal User. Under prison rules, an

8 inmate’s “Priority Legal User” status begins “no earlier than 30 calendar days before [an]

9 established court deadline,” unless the inmate demonstrates “extraordinary circumstances.”

10 (ECF 168-5, at 184; see also id. at 178 (limiting priority access to “no more than 30 days

11 prior to the expiration of their court deadline”).) And prisoners must specifically “apply for

12 PLU status.” (ECF 168-5, at 183.) Yablonsky has not pointed to any relevant court

13 deadlines, extraordinary circumstances, or other evidence showing a request for Preferred

14 status was improperly denied.

15 Yablonsky next contends that defendants excluded him from the library entirely for

16 the week of October 16, 2016. But the library log tells a different story. That week

17 Yablonsky was scheduled for four hours, with two-hour blocks on both October 20 and

18 October 21. (ECF 168-5, at 344–46.) Yablonsky insists, however, that he never made those

19 appointments and that “[s]ome weeks I didn’t get any [library time].” (See ECF 168-5,

20 at 57.) But there is no evidence that the defendant librarians were responsible for this.

21 Instead, Yablonsky offers substantial evidence that nonlibrary staff were to blame for not

22 escorting prisoners to the library. (See, e.g., ECF 177, at 494 (“[T]he library relies on

23 [nonlibrary] staff who regularly fail to honor the [appointment slips]” and “regularly refuse

24 escorts.”); id. at 495–500 (same); cf. ECF 168-5, at 27 (Question: “The librarian may grant

25 the [library] request but the [nonlibrary] officer doesn’t provide you with a ducat

26 [appointment slip]. Is that correct?” Answer: “Correct.”).) Other times, it seems Yablonsky

27 missed his library dates due to conflicting medical visits. (See, e.g., ECF 168-5, at 334–35

28

1 (December 2, 2016 library appointment “Bumped by another Appt” for “Health Services”);

2 id. at 307–08 (same on February 3, 2017).)

3 In short, there is no proof that the librarians ever thwarted Yablonsky’s library visits.

4 To the contrary, every time a named defendant scheduled Yablonsky’s library

5 appointments, he was booked for at least four hours. (See ECF 168-5, at 236–38 (Tiscornia

6 scheduled one week of 4 hours); id. at 286–87 (Powell scheduled one week of 6 hours); id.

7 at 195–217, 225–29, 283–85 (Robles scheduled ten separate weeks of 4, 6, 6, 8, 8, 10, 10,

8 12, 12, and 12 hours).) And every time he was allotted less than four hours, it was by

9 another librarian—not one of the named defendants. (See, e.g., ECF 168-5, at 241–47.)

10 Yablonsky dismisses all this evidence as a smoke screen. He accuses defendants of

11 fabricating records to hide their retaliatory scheduling. In particular, he notes that the

12 identification number for the September 1, 2016 entry is out of order for that week.

13 (ECF 177, at 163; ECF 168-5, at 362.) Also, this dubious entry’s number is only seven

14 digits, while the rest are eight. (ECF 177, at 163.) But this supposedly bogus entry is for a

15 date before Yablonsky’s grievances, so it is not clear how it would aid a cover-up of any

16 improper bookings. At any rate, Yablonsky offers no proof that the librarians are to blame

17 for any tampered records, nor any indication of what the true scheduling data should be.

18 With no evidence of defendants’ vindictive scheduling—and much evidence of their

19 generous scheduling—this retaliation theory is meritless.

20 3. Confiscation of Legal Paperwork

21 Yablonsky also accuses the litigation coordinator, defendant McGuire, of retaliating

22 against him by dispatching guards to his cell to confiscate legal papers. (See ECF 177,

23 at 20–22; ECF 168-5, at 127–28.) McGuire responds that there is no evidence she

24 participated in—or was even aware of—this cell search, and thus Yablonsky “cannot meet

25 the adverse action” element. (See ECF 168, at 29.)

26 Although Yablonsky has no direct proof that McGuire conspired to take his

27 paperwork, he points to four pieces of circumstantial evidence of her culpability. First, the

28 timing. According to Yablonsky, he used “secur[e] institutional mail” to send McGuire a

1 letter for “assistance in processing” a grievance “about misconduct by staff in[] the law

2 library.” (ECF 62, at 54; see also ECF 177, at 144.) He claims that “within an hour” of

3 McGuire receiving that letter, officers searched his cell and took some legal files. (ECF 62,

4 at 54; ECF 177, at 144.) Based on this sequence of events, Yablonsky presumes that

5 McGuire read his letter and swiftly ordered his legal papers seized.

6 This theory collapses due to a complete lack of proof. Yablonsky offers no evidence

7 that McGuire even read the letter “within an hour” of its delivery, nor that she had the

8 authority or wherewithal to direct a cell search. (See ECF 168-5, at 373 (McGuire emailing

9 that she was “not aware of what transpired” until Yablonsky’s family informed her that

10 “his property was taken from his cell”).) What’s more, Yablonsky hasn’t explained

11 McGuire’s retaliatory motive. The letter raised complaints against library staff—not

12 against McGuire. (See ECF 177, at 143–44.) And as litigation coordinator, McGuire

13 routinely processed such inmate grievances. (See ECF 168-5, at 371.) It is unclear why

14 criticism of an unrelated prison department would ignite her retaliatory wrath. Yablonsky’s

15 claim that he “did one thing [sending McGuire a letter], and subsequently the other thing

16 happened [cell search] . . . is, in the factual context of this case, insufficient” to infer

17 retaliation, let alone that McGuire retaliated. See Nelson v. Pima Cmty. Coll., 83 F.3d 1075,

18 1081 (9th Cir. 1996).

19 Yablonsky’s second argument is that the guard who searched his cell knew of his

20 prison grievance, presumably from McGuire. (See ECF 168-5, at 127–28.) There are

21 several problems with this point. Initially, it’s a strained reading of the record. When

22 Yablonsky asked why the guard was taking his legal files, the guard twice replied, “I don’t

23 know.” (ECF 168-5, at 128.) The guard then asked, “Did you write somebody up?” (Id.)

24 Yablonsky responded, “Yeah, I did[.] I filed several appeals.” (Id.) So the guard replied,

25 “Oh, that’s probably it.” (Id.) In other words, the guard seemed unaware of the grievances

26 until Yablonsky told him. But even if this colloquy could be read to suggest the guard

27 learned of them beforehand—and not from Yablonsky himself—it does not prove that

28

1 McGuire told him. In sum, even with generous leaps of faith and logic, the guard’s

2 statements do little to link McGuire to any adverse action.

3 Third, Yablonsky interprets McGuire’s post-search assurance that “‘she’ would have

4 [his papers] returned” as an implicit confession that she had them seized. (ECF 168-5,

5 at 128.) But that’s like saying: When a detective assures distraught parents that he will get

6 their missing child returned, it’s a tacit admission of kidnapping. These statements don’t

7 imply a guilty conscience when it’s their job to find and recover what was stolen. It was

8 McGuire’s duty to restore Yablonsky’s legal files if other prison staff improperly took

9 them. (See ECF 168-5, at 371 (litigation coordinator’s major duty is ensuring that litigation

10 “issues are adequately addressed”).)

11 Finally, Yablonsky emphasizes that McGuire worked in the prison system for over

12 “nine years” and “as litigation coordinator” for two years. (ECF 177, at 79.) But McGuire’s

13 nearly decade-long tenure doesn’t imply she’s prone to improper reprisals against inmates.

14 It suggests the opposite. And in her role as litigation coordinator, she has no apparent

15 authority to order cell searches. (See ECF 168-5, at 371.) Rather, she “advise[s]

16 management” on “Litigation issues,” so she would be especially attuned to avoiding new

17 legal trouble for the prison. (See id.)

18 Even taken together, these circumstances would not lead a reasonable juror to

19 believe McGuire ordered Yablonsky’s legal paperwork seized or that she was involved in

20 any other adverse action against him.

21 4. Withdrawn Grievance

22 Yablonsky alleges that a “senior educator” at the prison, defendant Martinez,

23 retaliated against him by tricking him into withdrawing a grievance.5 (ECF 62, at 82; see

24 also ECF 168-5, at 82–83.) On January 20, 2017, Yablonsky and Martinez had their first-

25 ever meeting, so that Martinez could interview Yablonsky about his “appeal against the

26

27

5 To the extent Yablonsky is trying to bring an access-to-courts claim against

28

1 law library.” (See ECF 168-5, at 83, 112–13; ECF 177, at 123.) During that interview,

2 Martinez said that if this “staff complaint goes through there is some possibility that these

3 people [defendant librarians] are going to lose their jobs.” (ECF 168-5, at 84.) According

4 to Yablonsky, Martinez thus “manipulated” him into withdrawing his complaint. (Id.

5 at 89.) Yablonsky said, “I don’t want nobody to lose their jobs.” (Id. at 84–85.) He then

6 handwrote into the “request to withdraw” section of the prison appeal that he would

7 “waive” his grievance. (Id. at 85–86.) But Yablonsky claims this was all a “bait and

8 switch.” (ECF 177, at 123; ECF 168-5, at 83.) While he assumed Martinez held in his hand

9 the library-access complaint, it was in fact the grievance about defendant McGuire

10 confiscating his legal files. (ECF 168-5, at 89, 92.) So, Yablonsky unwittingly withdrew

11 the complaint against McGuire, not against the librarians.

12 The defense argues that Yablonsky has not proven Martinez’s “retaliatory motive.”

13 (ECF 168, at 30.) The closest Yablonsky comes to addressing this element is his assertion

14 that Martinez: (1) spoke to librarian Powell, (2) was “from[ ]the same union, attend[ed] the

15 [same] education meetings, and knew” Powell, and (3) wanted to “help his fellow union

16 member [Powell].” (ECF 177, at 123–24.) The problem is that Martinez didn’t help Powell.

17 He hurt Powell, in Yablonsky’s telling. After all, Yablonsky was ready to dismiss his

18 grievance against Powell and the other librarians. Martinez’s “bait and switch” diverted

19 that dismissal to McGuire, at Powell’s expense.

20 Because Yablonsky cannot prove Martinez’s retaliatory motive, Martinez is entitled

21 to summary judgment on any claim that Martinez duped him into withdrawing a grievance.

22 5. Tampered Outgoing Mail

23 After Yablonsky finally mailed his legal papers, they were returned with a label over

24 the address. (ECF 62, at 83.) He believes that McGuire “somehow influenced the

25 mishandling of the legal mail and placed labels over the numeric portion of the address to

26 prevent delivery.” (ECF 177, at 124–25.) She did so, he argues, because Yablonsky named

27 her as a defendant. (ECF 168-5, at 148.) McGuire deems all of this “too speculative to

28 proceed to trial.” (ECF 168, at 31.)

1 Although Yablonsky claims that “there is more than enough evidence to show

2 McGuire . . . had enough ‘FRIENDS’ at [the prison] to tamper with the mail,” (ECF 177,

3 at 50), he offers only conjecture, not proof. Yablonsky admits that he handed this legal

4 mail to “Correction staff in Housing Unit 18,” not McGuire. (ECF 168-5, at 152.) He is

5 simply “assuming” that because he sued McGuire, “she held some advanced

6 responsibility” for the tampering. (ECF 168-5, at 153.) At one point, he candidly conceded

7 that he did not “know exactly who the [tampering] parties are,” but that he believes “the

8 litigation coordinator plays a role in whether these mailings are being delivered.”

9 (ECF 168-5, at 145.) But there is no factual basis for these assumptions. McGuire did not

10 work in the mail room. (ECF 168-4, at 2.) Nor was she involved in “the processing of . . .

11 confidential legal mail.” (Id.; see ECF 168-5, at 371.) Nor is there evidence that she

12 spearheaded a mailroom conspiracy.

13 Even if McGuire knew she was named in this lawsuit, Yablonsky offers nothing but

14 guesswork for how she tampered with his mail. “[M]ere allegation and speculation do not

15 create a factual dispute for purposes of summary judgment.” Nelson, 83 F.3d at 1081–82.

16 McGuire is entitled to summary judgment on this ground, too.

17 6. Rules Violation Report

18 Finally, Yablonsky alleges that defendant Robles retaliated against him by issuing a

19 rules violation report for unused library sessions. (ECF 62, at 61–62, 80–81; ECF 66,

20 at 313; ECF 168-5, at 122.) Although Yablonsky admits missing library time, he explains

21 that on each occasion he “had already been there” for an earlier session or he had to leave

22 early because “I go as much as I can,” but “[m]y eyes can’t handle anymore.” (See

23 ECF 168-5, at 122.) The defense argues that Robles had no “retaliatory motive” and that

24 he issued the citation “for legitimate penol[o]gical reasons.” (ECF 168, at 31.)

25 By writing up Yablonsky for squandering library appointments, Robles in fact

26 “reasonably advance[d] a legitimate correctional goal.” See Rhodes, 408 F.3d at 567–68.

27 “[L]imiting law library access is inherent in managing a limited resource for a large group

28 of individuals who all want to use it . . . .” Halbert v. Herbert, No. C 03-0237 JF (PR),

1 WL 4460213, at *5 (N.D. Cal. Sept. 30, 2008). Each law-library session at Donovan

2 ||prison is capped at “twelve (12) Law Library users.” (See ECF 168-5, at 176.) When

3 || Yablonsky is repeatedly assigned time he doesn’t use, it could deprive other inmates of

4 || library turns. To conserve library resources, prison staff may thus set and enforce rules to

5 || ensure prisoners maximize their allotted time.

6 But Yablonsky also complains that this is a “fake rule” that “does not exist.”

7 || (ECF 62, at 61, 81.) Not true. Section 101120.10 of the prison’s operations manual

8 ||supplement states that any inmate who “does not attend their [assigned library] session will

9 ||be subject to progressive discipline,” and that “the initial incident will result in a

10 || Counseling Only Rules Violation Report.” (ECF 168-5, at 177.) Robles issued Yablonsky

11 “Counseling Only” rules violation report, citing this exact rule. (ECF 66, at 313.) Thus,

12 |}even in the light most favorable to Yablonsky, any reasonable juror would find that

13 || Robles’s actions “reasonably advance[d] a legitimate correctional goal.” Rhodes, 408 F.3d

14 || at 567-68.

15 CONCLUSION

16 As there is no genuine issue for trial on any of Yablonsky’s claims and no reasonable

17 ||jury could find in his favor, defendants’ summary-judgment motion is GRANTED. The

18 || Clerk of Court shall enter judgment in favor of defendants on all claims and close the case.

19 || Dated: September 30, 2022

20 — | |

Hon. Andrew G. Schopler

United States Magistrate Judge

22

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19

l APPENDIX

5 Yablonsky’s Scheduled Library Hours

3 ||| Week Citation Major Holidays

at...

8/21/2016 | | A hours, 10 mins. | 363-64

[8282016 | | S hours, 30 mins. | 361-63

goa20l6 | |S hours 35700

| | hours, 3856

g ffigis2o1e | | hours 355-56

9/25/2016 | | A hours, | 35154

10 |[Lto2/2016 | | Shows 348

jlo2o16 | | A hours 34648

12 |[|1o/1e/2016 | | hours 844-45

10/23/2016; | A hours | 34844

2hows [SA

14 11/6/2016 | 2hours | 388A

ys [Lt3z2o16 | | hours, 33537

11/20/2016 | Ohours | 8B Thanksgiving week _

16 11/27/2016] | 4 hours, 10 mins. | 333-34

17 |[Lz42oie || hours 328-32

pd22oi6f | A hours | 325-27

18 ffiaig2oie| | 4 hours 323-25

19 12/25/2016 | hours | 89 | Christmas □□□□

W/2017_ | 2hours | G18 | New Year's □□□□

yfrs017 | hours TSP

ay fiiasoi7 | A ours 3213

222017 | | hours 08

2 Wie2017 | | hours 305-07

23 2/5/2017, | | hours 302-05

2/12/2017 | | hours | 299-302,

[A hows 298-99

25 [2/26/2017 | | hours | 295-97

ng Bs2017 1 nowrs 291-95

3/12/2017 | 2hours fF 290

27 [3/19/2017 | A hours | 288-89

gg 3/26/2017 | | hours | 286-87

20

|ijaai2oi7 | | hours 283-85

| | hours 281-83

4/16/2017 | | hours, 279-B8E

f]]4/23/2017 | | A hows 277-78

| | 4 hours 275-76

sy72oi7_ | | A hours 272-74

| | hours 270-71

6 f[s2u2o17 | TS hours | 263-69

5/28/2017 | | hours, 261-2

| hours 258-60

| | A hours 257-58

6/18/2017 | | A hours | 254-56

Wlo2sn0i7 | | hours 251-53

10 ff[7/2/2017_ || | hours 250-5

| A hows 24849

76/2017 | | hows 24748

12 7/23/2017 | 2hours | SAT

13 2302017 | 2hours | A

se20i7 | hours 239-4

3/13/2017 | | A hours 236-38

js s2o2017 | | A hows 233-385

8/27/2017 | | A hows | 230-32

16 Wo/32017_ «| TN hours | 226-29 |

|j9too17 | ours | 225-26

972017 | | hours 2224

[| hours [217-20

19 to2o17 | | hows IK

lo/g2o17 | tours 210-138

Woris20r7[ 2 hours 206-09

21 to/az2017; | hours | 202-05

|Lo2g2017| | Sours | 200-02, |

js20i7 | | hows N9B9Q

23 juii22oi7| | hours 195-97

24

25

26

27

28

a1