Saddozai v. Atchley

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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

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11 SHIKEB SADDOZAI,

Case No. 20-cv-07534 BLF (PR)

Plaintiff,

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ORDER DENYING DEFENDANT’S

v. MOTION FOR SUMMARY

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JUDGMENT; REFERRING TO

SETTLEMENT PROCEEDINGS;

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M. B. ATCHLEY, et al., STAYING CASE; INSTRUCTIONS

TO CLERK

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Defendants.

16 (Docket No. 72)

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18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42

19 U.S.C. § 1983, against defendants at Salinas Valley State Prison (“SVSP”). The third

20 amended complaint (“TAC”) is the operative complaint in this action. Dkt. No. 38. The

21 Court found the TAC stated three cognizable claims against the sole defendant, S.

22 Tomlinson, and ordered the matter served; all other defendants and claims were dismissed.

23 Dkt. No. 40. The Court later granted Defendant Tomlinson’s motion to dismiss two claims

24 for failure to state a claim and ordered briefing on the remaining free speech claim under

25 the First Amendment. Dkt. No. 69.

26 Defendant filed a motion for summary judgment on the grounds that the undisputed

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1 facts show that Plaintiff’s First Amendment rights were not violated. Dkt. No. 72-3.1

2 Plaintiff filed an opposition and declaration. Dkt. Nos. 81, 81-2. Defendant filed a reply.

3 Dkt. No. 84.

4 For the reasons discussed below, Defendant’s motion for summary judgment is

5 DENIED.

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7 DISCUSSION

8 I. Statement of Facts

9 This action involves the allegation that Defendant S. Tomlinson, a Senior Librarian

10 at SVSP, violated Plaintiff’s First Amendment right to free speech when she expelled him

11 from the library for complaining on July 21, 2020. Dkt. No. 69 at 2.

12 Defendant requests judicial notice (“RJN”) under Federal Rules of Evidence 201, of

13 the various court cases and motions filed by Plaintiff as shown under Exhibits 3 and 4.

14 Dkt. No. 72-2. Under Rule 201, the Court may judicially notice a fact that is not subject to

15 reasonable dispute because it “(1) is generally known within the trial court’s territorial

16 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy

17 cannot reasonably be questioned.” Fed. R. Evid. 201(b). Furthermore, a district court

18 “may take notice of proceedings in other courts, both within and without the federal

19 judicial system, if those proceedings have a direct relation to matters at issue.” Bias v.

20 Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal quotation marks and citations

21 omitted) (granting request to take judicial notice in § 1983 action of five prior cases in

22 which plaintiff was pro se litigant, to counter her argument that she deserved special

23 treatment because of her pro se status). Accordingly, the Court finds good cause to grant

24 Defendant’s request under Fed. R. Evid. 201(b).

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26 1 In support, Defendant provides the declaration of Deputy Attorney General, counsel for

Defendant, along with the deposition transcript of Plaintiff taken on October 31, 2023,

27 Dkt. No. 72-4 (Ex. 1), and the declaration of Defendant S. Tomlinson, Dkt. No. 72-5.

1 Plaintiff also filed a request for judicial notice of several attached exhibits, which

2 are in addition to his opposition and other exhibits. Dkt. No. 81-1. His request is 39 pages

3 long and includes legal arguments beyond that of a mere request for judicial notice. Id. at

4 1-39. For example, Plaintiff asserts he has been “unconstitutionally denied access to the

5 courts and prevented from assisting in his own defense due to state created impediments

6 which adversely effected [his] personal liberty interests and which taken together denied

7 [him] a fair review of all legal proceedings.” Id. at 2. However, this matter involves only

8 a single claim of free speech violation; his right of access to the courts and denial of liberty

9 interests claims have been dismissed. Accordingly, this argument is irrelevant and beyond

10 the scope of this action. Furthermore, the attached exhibits include various memoranda

11 concerning the law library, several “Daily Program Status Report, Part A - Plan of

12 Operation /State & Inmate Notification[s]” for various dates, a grievance, a letter from the

13 Office of the Inspector General, and documents related to Plaintiff’s alleged disability and

14 accommodations. Id. at 81-1 at 40-77. Plaintiff’s request includes no relevant argument as

15 to why the offered exhibits are appropriate for judicial notice under Rule 201(b), nor does

16 he identify what specific facts therein are appropriate for judicial notice. Accordingly,

17 Plaintiff’s request for judicial notice is DENIED. The arguments raised in the request for

18 judicial notice and the attached exhibits shall not be considered in deciding Defendant’s

19 summary judgment motion.

20 B. Access to Law Library

21 Inmates can access the law library by requesting Priority Legal User (“PLU”)

22 status. California Code of Regulations, tit. 15, § 3122 governs PLU status and states in

23 relevant part:

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(b) Inmates who have established court deadlines may apply for Priority

25 Legal Status (PLU) to the prison law libraries. Inmates who are granted

PLU status based on their application shall receive higher priority to prison

26 law library resources than other inmates. All inmate who are not on PLU

status are on General Legal User (“GLU”) status.

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…

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2 (7) PLU status is intended to assist inmates to do legal work in a quiet law

library setting. An inmate on PLU status who, while in the law library, is

3 observed by staff to act in an unreasonably disruptive manner or to engage

in non-legal work shall be removed from the PLU list and shall be

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dismissed from the library for that day. Inmates who are removed from the

5 PLU list for these reasons shall be ineligible to reapply for PLU status for

30 calendar days, but may continue to use the law library on GLU status.

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Cal. Code Regs. tit. 15, § 3122(b),(7).

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Once a request for a PLU appointment is received, librarian staff schedule them

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subject to availability, which can be impacted by staffing issues and the number of inmates

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wishing to use the library. Id. at § 3122(b)(4). Inmates who are removed from the PLU

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list under subsection (7) may continue to use the law library on GLU status, until they can

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reapply for PLU status. Id. at §§ 3122, 3123(b). Inmates who cannot access the library,

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for whatever reason, can use the paging system whereby they put their documents for

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copying in an envelope, and then mail them to the law library using the prison mailing

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system. Pl. Dep. at 29:16-23, Dkt. No. 72-4 (Ex. 1); Cal. Code of Reg., tit. 15, § 3123(c).

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C. Incident on July 21, 20202

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According to the SAC, on July 21, 2020, Plaintiff went to the law library for a

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scheduled appointment. Dkt. No. 38 at ¶ 1. He handed Defendant Tomlinson his “only

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original habeas corpus petition with exhibits to be copied, ready to be sent to the court.”

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Id. According to the allegations in the TAC, Defendant read Plaintiff’s confidential legal

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documents and kept the originals and copies without a written explanation. Id. at ¶ 2.

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Defendant sounded the alarm and had correctional officers remove Plaintiff from the

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library in handcuffs, and later issued Plaintiff an RVR. Id. at ¶ 3. Plaintiff alleges that

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Defendant did so “as an adverse action for complaining.” Id.

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According to Defendant, Defendant Tomlinson reviewed the documents pursuant to

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27 2 The following facts are undisputed unless otherwise indicated.

1 prison policy to make sure they qualified as legal documents entitled to copying under the

2 CDCR regulations. Tomlinson Decl. ¶ 3, Dkt. No. 72-5 at 2. Defendant authorized one

3 document to be copied, but determined the second document did not comply with the

4 regulations. Id. Defendant returned all original documents to Plaintiff. Id. Later that day,

5 when Defendant saw another librarian copying Plaintiff’s document that had been deemed

6 non-compliant, she informed the librarian of the issue and returned all documents to

7 Plaintiff. Id. at ¶ 4. Plaintiff then became argumentative, demanding copies and accusing

8 Defendant of reading his legal mail. Id. According to Defendant, Plaintiff was not

9 listening to her instructions and was being disrespectful, as well as acting as if the copying

10 regulations did not apply to him. Id. Defendant informed Plaintiff that he needed to leave

11 because she felt his conduct was disruptive to other patrons and staff. Id. Office Berry

12 entered the library on his own initiative and informed Plaintiff that he needed to leave the

13 library. Id. at ¶ 5. According to the library log provided by Defendant Tomlinson, the

14 following notation was indicated for July 21, 2020: “Disruptive. I/M became upset and

15 argumentative when copy request denied. Removed by C/O Berry at approx.10:20.”

16 Tomlinson Decl., Ex. 2, Dkt. No. 72-5 at 4.

17 Defendant Tomlinson states that she did not issue a rules violation report to

18 Plaintiff. Id. at ¶ 6. She also states that as the Senior Librarian, she receives, reviews, and

19 approves all PLU requests to use the law library. Id. at ¶ 7. Defendant has received

20 multiple subsequent requests from Plaintiff and approved them. Id. Defendant denies

21 barring Plaintiff from entering the library at any point. Id.

22 Plaintiff filed a declaration which does not address the July 21, 2020 incident. See

23 generally Dkt. No. 81-2. The declaration only makes generalized allegations against

24 “staff” and describes actions by individuals that occurred in 2021, and do not involve

25 Defendant Tomlinson. Id. at ¶¶ 23-31. On the other hand, Plaintiff makes allegations in

26 his deposition and in his opposition brief that contradict Defendant Tomlinson’s account.

27 During his deposition, Plaintiff stated that Defendant Tomlinson did not return his habeas

1 petition. Pl.’s Dep. at 33:8. He also stated that Defendant Tomlinson pushed a silent

2 alarm located on her belt which caused multiple officers to rush into the law library. Id. at

3 47:9-17. Plaintiff stated that, “I know from my… position, I didn’t do anything to deserve

4 me to be removed.” Pl.’s Dep. at 49:20-21. Lastly, he stated that he “didn’t recollect any

5 explanation” for his removal, id. at 50:12-13, or “if there [were] any exchanges of words,”

6 id. at 57:15-16. In his opposition, Plaintiff asserts that when Defendant refused to return

7 his documents, Plaintiff “remained calm and requested Defendant to release him from

8 inside the law library room because Plaintiff was locked inside law library requiring

9 correctional officer (Berry) to be called in to the law library to unlock the door and release

10 Plaintiff to that he can report the incident to supervising custody officials at the program

11 office.” Dkt. No. 81 at 73. Plaintiff states that Defendant would not allow Plaintiff to

12 report the matter and “pushed the silent alarm before Plaintiff had an opportunity to

13 contact supervisory officials.” Id.

14 D. Plaintiff’s Continued Legal Activity

15 In the two months after the incident, Plaintiff went to the law library on six separate

16 dates: July 27, 2020, July 28, 2020, August 11, 2020, August 12, 2020, August 19, 2020,

17 and August 26, 2020. Each appointment request completed by Plaintiff was granted.

18 Tomlinson Decl, Ex. 2, Dkt. No. 72-5 at 4-5.

19 Plaintiff also filed several legal documents between the months of July through

20 December 2020. Specifically, Plaintiff initiated three appeals in the Ninth Circuit, as well

21 as the instant action in October 2020. RJN Ex. 3, Dkt. No. 72-2 at 4-5. Plaintiff also filed

22 numerous filings in various civil cases he was litigating. Id., Ex. 4, Dkt. No. 72-2 at 7-8.

23 II. Summary Judgment

24 Summary judgment is proper where the pleadings, discovery and affidavits show

25 that there is “no genuine dispute as to any material fact and the movant is entitled to

26 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment

27 “against a party who fails to make a showing sufficient to establish the existence of an

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

2 at trial . . . since a complete failure of proof concerning an essential element of the

3 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v.

4 Catrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of

5 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the

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

7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

8 Generally, the moving party bears the initial burden of identifying those portions of

9 the record which demonstrate the absence of a genuine issue of material fact. See Celotex

10 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue

11 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other

12 than for the moving party. But on an issue for which the opposing party will have the

13 burden of proof at trial, the moving party need only point out “that there is an absence of

14 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition

15 to the motion is merely colorable, or is not significantly probative, summary judgment may

16 be granted. See Liberty Lobby, 477 U.S. at 249-50.

17 The burden then shifts to the nonmoving party to “go beyond the pleadings and by

18 his own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

19 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex

20 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this

21 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323.

22 The Court’s function on a summary judgment motion is not to make credibility

23 determinations or weigh conflicting evidence with respect to a material fact. See T.W.

24 Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The

25 evidence presented and the inferences to be drawn from the facts must be viewed in a light

26 most favorable to the nonmoving party. See id. at 631. The nonmoving party has the

27 burden of identifying with reasonable particularity the evidence that precludes summary

1 judgment. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). If the nonmoving party

2 fails to do so, the district court may properly grant summary judgment in favor of the

3 moving party. See id.

4 “When opposing parties tell two different stories, one of which is blatantly

5 contradicted by the record, so that no reasonable jury could believe it, a court should not

6 adopt that version of the facts for purposes of ruling on a motion for summary judgment.”

7 Scott v. Harris, 550 U.S. 372, 380-83 (2007) (police officer entitled to summary judgment

8 based on qualified immunity in light of video evidence capturing plaintiff’s reckless

9 driving in attempting to evade capture which utterly discredits plaintiff’s claim that there

10 was little or no actual threat to innocent bystanders); see Intel Corp. Inv. Policy Comm. v.

11 Sulyma, 140 S. Ct. 768, 779 (2020) (in ERISA case where the issue was whether plaintiff

12 had actual knowledge of an alleged fiduciary breach, the court indicated that plaintiff’s

13 denial of knowledge could be discredited at summary judgment stage if it was blatantly

14 contradicted by electronic records showing plaintiff viewed a website containing relevant

15 disclosures of investment decisions).

16 A. Free Speech

17 A prisoner retains those First Amendment rights that are “not inconsistent with his

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

19 system.” Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (quoting Jones

20 v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 129 (1977)) (internal

21 quotation marks omitted).3 Accordingly, a prison regulation that impinges on a prisoner’s

22 First Amendment right to free speech is valid only “if it is reasonably related to legitimate

23 penological interests.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citing Turner v. Safley,

24 482 U.S. 78, 89 (1987)); see, e.g., Hargis v. Foster, 312 F.3d 404, 410 (9th Cir. 2002) (rule

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26 3 The First Amendment is made applicable to the states through the Fourteenth

Amendment . See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n. 43 (1982);

27 Edwards v. South Carolina, 372 U.S. 229, 235 (1963).

1 subjecting prisoners to discipline for coercing guard into not enforcing prison rules was, on

2 its face, reasonably related to legitimate penological interests).

3 The Supreme Court has identified four factors to consider when determining the

4 reasonableness of a prison regulation: (1) whether there is a “valid, rational connection

5 between the prison regulation and the legitimate governmental interest put forward to

6 justify it”; (2) “whether there are alternative means of exercising the right that remain open

7 to prison inmates”; (3) “the impact accommodation of the asserted constitutional right will

8 have on guards and other inmates and on the allocation of prison resources generally”; and

9 (4) the “absence of ready alternatives”, or, in other words, whether the rule at issue is an

10 “exaggerated response to prison concerns.” Turner, 482 U.S. at 89-90.

11 A claim that the application of a prison regulation violated a prisoner-plaintiff’s

12 First Amendment right to free speech does not end even if the regulation, on its face,

13 satisfies the Turner test. Hargis, 312 F.3d at 410. Although facially valid, the regulation

14 may be unconstitutional as applied to the prisoner-plaintiff. See id. at 410-12 (finding

15 triable issue as to whether prison officials’ discipline of a prisoner for coercion, for his

16 statement to a prison guard that the guard’s actions and statements could come up in

17 pending state court litigation, violates the prisoner’s right to free speech, when a jury could

18 reasonably find that charging the prisoner with such a severe disciplinary infraction was an

19 exaggerated response to prisoner’s conduct).

20 Defendant asserts that the regulation at issue, Cal. Code Regs. tit. 15, § 3122, is

21 constitutional under the Turner factors because it is related to internal order and discipline

22 of the law library and Plaintiff still had access to the law library after the incident. Dkt.

23 No. 72 at 10-11. Under the first Turner factor, Defendant asserts that providing a quiet

24 environment for library patrons to conduct legal work is a legitimate penological interest

25 and the regulation allowing for disruptive individuals to be dismissed is constitutional. Id.

26 at 11. Defendant points out that rules similar to § 3122 are in place at a majority of public

27 libraries which also enforce them by dismissing patrons. Id. In the public library context,

1 these rules and regulations have been recognized as constitutional. Id., citing Brown v.

2 State of La., 383 U.S. 131, 142 (1966) (recognizing the library as a place of quiet

3 contemplation); Van Den Heuvel v. Dorothy, No. 22:1-CV-2176 (TLN) (CKD) PS, 2022

4 WL 95237v 3 (E.D. Cal. Jan. 10, 2022) (a libraries enforcement powers are at its peak

5 when protecting staff and patrons). Defendant also asserts that the Ninth Circuit has

6 recognized that limiting an inmate’s First Amendment rights for the furtherance of

7 correctional goals in constitutional, such as in Mauro v. Arpaio, 188 F3d 1054, 1060 (9th

8 Cir. 1999), which upheld a regulation prohibiting inmates from possessing sexually

9 explicit material, citing the relationship between the possession of such materials and the

10 problems sought to be addressed by the policy, the sexual harassment of female officers,

11 jail security, and rehabilitation of inmates. Id. at 12. Accordingly, Defendant asserts the

12 first Turner factor is satisfied.

13 Defendant also asserts that under the second Turner factor, Plaintiff continued to

14 have access to the law library after the incident and thus alternative means remained

15 available. Dkt. No. 72-3 at 12. Defendant asserts that Plaintiff was never restricted from

16 further access and that he utilized the library extensively during his incarceration,

17 including during July and August 2020. Id. Nor did his removal from the library impact

18 his access to the courts since he was able to make numerous filings and initiated several

19 cases in the months after the incident. Id. at 13. Lastly, Defendant asserts that even if

20 Plaintiff could not access the law library, he had access to paging services by which he

21 could request legal material be delivered by library staff. Id. Defendant asserts that the

22 records show that Plaintiff did utilize the paging service to make copies of documents. Id.,

23 citing Pl.’s Dep. at 29:18-23, Dkt. No. 72-4.

24 Thirdly, Defendant asserts that the third Turner factor also weighs in their favor

25 because allowing inmates to argue and make demands from staff would disrupt the library

26 used by other inmates to conduct legal work and reduce the entire populations’ access to

27 the courts. Dkt. No. 72-3 at 13. Defendant contends that not promptly removing

1 disruptive inmates could cause increased safety concerns for staff. Id. at 14. As for the

2 final Turner factor, Defendant asserts that Plaintiff has not identified any reasonable

3 alternative that would have accommodated him at a de minimis cost. Id., citing Turner,

4 482 U.S. at 90-91. Defendant concludes that with all the Turner factors satisfied,

5 Plaintiff’s free-speech cause of action should be dismissed.

6 Lastly, Defendant asserts that the regulation was applied to Plaintiff in a

7 constitutionally valid manner. Dkt. No. 72-3 at 14. Defendant asserts that Plaintiff is

8 unable to remember anything that would create a triable issue of fact in this regard. Id.

9 Defendant points out that Plaintiff does not recall the reason he was removed from the

10 library, the date that the removal occurred, or even the events that led to his expulsion. Id.,

11 citing Pl.’s Dep. at 49:16-50:9, 17:12-14, 47:9-17. Defendant also asserts that Plaintiff

12 does not recall any of the conversation between himself and Defendant on that day or why

13 she refused to copy his documents. Id. at 18-21. In contrast, Defendant recalls that she

14 rejected Plaintiff’s documents for copying because it was non-compliant with the

15 regulations, and that Plaintiff later became unreasonably disruptive when she alerted

16 another librarian to this issue. Dkt. No. 72-3 at 15; Tomlinson Decl. ¶ 4. Then Officer

17 Berry came to the library on his own initiative and escorted Plaintiff out of the library. Id.

18 Based on this evidence, Defendant asserts that she acted appropriately and applied the

19 regulation in a valid manner. Id.

20 In opposition, Plaintiff submits a lengthy brief asserting that his rights under Equal

21 Protection clause, due process, and First Amendment were violated. Dkt. No. 81. With

22 regard to the First Amendment, Plaintiff asserts that his rights involving access to the

23 courts and against retaliation were violated, in addition to his right to free speech. Id. at

24 59-71, 87-90. However, the only remaining claim in this action is the free speech claim, as

25 all other claims and defendants have been dismissed from this action. See Dkt. Nos. 40,

26 69. Accordingly, most of Plaintiff’s arguments are irrelevant and beyond the scope of this

27 action, such as his assertion of supervisor liability against Warden Atchley who was

1 dismissed from this action on February 17, 2022, because Plaintiff did not include him as a

2 defendant in the second amended complaint. Dkt. No. 28; see Ferdik v. Bonzelet, 963 F.2d

3 1258, 1262 (9th Cir. 1992). Accordingly, only those arguments that are relevant to his free

4 speech claim shall be considered, specifically pages 65 through 73 of his opposition. Dkt.

5 No. 81 at 72-80.

6 Plaintiff asserts that Defendant “may not exercise unfettered discretion by denying

7 Plaintiff access for expressive activity especially those that defendant encouraged and

8 placed blame on Plaintiff.” Dkt. No. 81 at 72, citing to Marsh v. Alabama, 326 U.S. 501

9 (1946). Plaintiff asserts that the claim that he was disruptive is “false… without proof,

10 witnesses, or a disciplinary action.” Id.at 75. He asserts that under Brown, peaceful and

11 quiet protestors are allowed to assemble in the reading room of a public library. Id. at 76.

12 He asserts that Defendant’s allegation that he was being disruptive is “untrue,” but that

13 even if it were true, “it would be based solely on Defendant’s own personal bias bigoted

14 thoughts and views.” Id. at 77.

15 In reply, Defendant asserts that Plaintiff has not provided any competent evidence.

16 Dkt. No. 84 at 2. Defendant points out that Plaintiff has only provided a voluminous

17 amount of grievances that concern events not alleged in the TAC. Id. Defendant also

18 points out that Plaintiff’s exhibits directly contradict his notion that Defendant did not

19 return or that she destroyed his documents on July 21, 2020. Id., citing Dkt. No. 81 at 66,

20 153. Defendant asserts that Plaintiff’s numerous grievances demanding daily access to the

21 library do not demonstrate that Defendant Tomlinson violated his right to speech on July

22 21, 2020. Id. Defendant contends that she has established that there was a legitimate

23 penological objective for removing Plaintiff from the law library. Id. at 3.

24 Viewing the evidence in the light most favorable to Plaintiff, Defendant has failed

25 to establish the absence of genuine issues of material facts. It is undisputed that the

26 regulation at issue, Cal. Code Regs. tit. 15, § 3122(b), satisfies the Turner factors on its

27 face. Rather, Plaintiff challenges the manner in which the regulation was applied to him.

1 Contrary to Defendant Tomlinson’s version of events, Plaintiff denies being disruptive to

2 warrant being expelled from the library. Although Defendant challenges Plaintiff’s failure

3 to recall certain aspects of the event during his deposition, such as the date and what

4 specific words were exchanged, Plaintiff’s recollection is not inconsistent with the

5 allegations in the SAC or his statements in opposition. He consistently alleges that when

6 he gave legal documents to be copied, Defendant took them and refused to copy them.

7 And while Defendant asserts that Plaintiff responded by being argumentative and

8 disruptive, Plaintiff asserts that he calmly voiced his complaints. Whether Plaintiff’s

9 response was sufficiently disruptive to warrant ejection from the library under prison

10 regulations is clearly a material fact which is in dispute.

11 Furthermore, although Plaintiff’s reliance on Marsh is misplaced as that case does

12 not apply to the circumstances at bar,4 he is correct that Defendant Tomlinson offers no

13 evidence corroborating her declaration; the only other evidence she offers is her own

14 library log. However, corroboration is not a matter for summary judgment because that

15 would improperly veer into weighing the evidence which is not appropriate here. In

16 evaluating a summary judgment motion, the facts must be construed in the light most

17 favorable to Plaintiff as the nonmoving party. See T.W. Elec. Serv., Inc., 809 F.2d at 630.

18 In conclusion, it simply cannot be said that Plaintiff’s version of the facts submitted

19 in opposition to summary judgment is so blatantly contradicted by his deposition testimony

20 that no reasonable jury could believe it. See Scott, 550 U.S. at 380-83. What the Court

21 finds troubling is that Plaintiff’s grievance challenging Defendant Tomlinson’s failure to

22 copy his legal documents and confiscating them was granted on appeal. Dkt. No. 38-1 at

23 15. The Office of Appeals (“OA”) stated that there was “insufficient evidence to support

24 the conclusion that the institution complied with section 3162(d).” Id. Among the lack of

25 evidence, the OA found the institution failed to articulate how Plaintiff’s requested legal

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27 4 Marsh involved a municipal ordinance that prohibited the distribution of religious

literature in a public street.

1 documents were in violation of regulations and to describe what type of legal documents

2 were presented for duplication services. Id. Accordingly, the inference is that Plaintiff

3 may well have been justified in “calmly” complaining when his request for copies was

4 denied. If Plaintiff’s complaining was not disruptive, then Defendant unconstitutionally

5 applied a regulation for the sole purpose of silencing Plaintiff’s speech which is not

6 permitted under Brown, 383 U.S. at 142.

7 Based on the record, Defendant has failed to show that there is an absence of

8 evidence to support Plaintiff’s case. As such, there are disputed issues of material fact

9 with respect to the free speech claim against Defendant Tomlinson. See Celotex Corp.,

10 477 U.S. at 323. Accordingly, Defendant’s motion for summary judgment must be denied.

11 B. Qualified Immunity

12 Defendant asserts in the alternative that she is entitled to qualified immunity. Dkt.

13 No. 72-3 at 15.

14 The defense of qualified immunity protects “government officials . . . from liability

15 for civil damages insofar as their conduct does not violate clearly established statutory or

16 constitutional rights of which a reasonable person would have known.” Harlow v.

17 Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity protects “‘all but the

18 plainly incompetent or those who knowingly violate the law;’” defendants can have a

19 reasonable, but mistaken, belief about the facts or about what the law requires in any given

20 situation. Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S.

21 335, 341 (1986)). “Therefore, regardless of whether the constitutional violation occurred,

22 the [official] should prevail if the right asserted by the plaintiff was not ‘clearly

23 established’ or the [official] could have reasonably believed that his particular conduct was

24 lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).

25 A right is clearly established if it were “sufficiently clear [at the time of the conduct

26 at issue] that every reasonable official would have understood that what he is doing

27 violates that right.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015). “The right must be

1 settled law, meaning that it must be clearly established by controlling authority or a robust

2 consensus of cases of persuasive authority.” Tuuamalemalo v. Greene, 946 F.3d 471, 477

3 (9th Cir. 2019). If the law did not put the officer on notice that his conduct would be

4 clearly unlawful, summary judgment based on qualified immunity is appropriate. Saucier,

5 533 U.S. at 202.

6 A court considering a claim of qualified immunity must determine whether the

7 plaintiff has alleged the deprivation of an actual constitutional right and whether such right

8 was clearly established such that it would be clear to a reasonable officer that his conduct

9 was unlawful in the situation he confronted. See Pearson v. Callahan, 555 U.S. 223

10 (2009) (overruling the sequence of the two-part test that required determination of a

11 deprivation first and then whether such right was clearly established, as required by

12 Saucier, 533 U.S. at 194); Henry A., 678 F.3d at 1000 (qualified immunity analysis

13 requiring (1) determining the contours of the clearly established right at the time of the

14 challenged conduct and (2) examining whether a reasonable official would have

15 understood that the challenged conduct violated such right). The court may exercise its

16 discretion in deciding which prong to address first, in light of the particular circumstances

17 of each case. See Pearson, 555 U.S. at 236 (noting that while the Saucier sequence is

18 often appropriate and beneficial, it is no longer mandatory). “[U]nder either prong, courts

19 may not resolve genuine disputes of fact in favor of the party seeking summary judgment,”

20 and must, as in other cases, view the evidence in the light most favorable to the non-

21 movant. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). For example, regarding the

22 first prong, the threshold question must be: Taken in the light most favorable to the party

23 asserting the injury, do the facts alleged show the officer’s conduct violated a

24 constitutional right? Saucier, 533 U.S. at 201.

25 Defendant’s qualified immunity argument must be rejected because she does not

26 present the facts in the light most favorable to Plaintiff as the nonmoving party. See Tolan,

27 134 S. Ct. at 1866. Defendant asserts that Plaintiff’s request for copies was denied for

1 valid reasons and that she properly expelled him from the library only after he became

2 disruptive under the regulations. However, the facts viewed in his favor are that Plaintiff

3 made a valid claim for copies which Defendant denied without justification. When

4 Plaintiff “calmly” voiced his complaint about the refusal, Defendant expelled him from the

5 library. As such, it simply cannot be said that Defendant Tomlinson had a “reasonable, but

6 mistaken belief” that she could expel Plaintiff from the library simply for exercising his

7 First Amendment rights and complaining about the unjustified denial for copies. Saucier,

8 533 U.S. at 202. Accordingly, Defendant has not established that she is entitled to

9 qualified immunity on the free speech claim.

10 C. New Claims

11 Plaintiff raises a new claim for the first time in this action, alleging that Defendant’s

12 “unauthorized negligent or intentional deprivation of Plaintiff’s legal document properties

13 require meaningful post-deprivation remedies.” Dkt. No. 81 at 91. However, Plaintiff was

14 granted leave three times to file an amended complaint that adequately pleaded cognizable

15 claims. See Dkt. Nos. 14, 21, 36. He sets forth no reason why he should now be permitted

16 to amend to add a new claim this late in the proceedings nor any explanation as to why he

17 did not attempt to include this claim in his previous amendments. Accordingly, leave to

18 amend add new claims shall not be granted.

19 III. Referring Case to Settlement Proceedings

20 The Court has established a Pro Se Prisoner Settlement Program under which

21 certain prisoner civil rights cases may be referred to a neutral Magistrate Judge for

22 settlement. In light of the existence of triable issues of fact as to whether Defendant

23 violated Plaintiff’s free speech rights under the First Amendment, the Court finds the

24 instant matter suitable for settlement proceedings. Accordingly, the instant action will be

25 referred to a neutral Magistrate Judge for mediation under the Pro Se Prisoner Settlement

26 Program.

27 ///

1 CONCLUSION

2 For the reasons stated above, the Court orders as follows:

3 1. Defendant Tomlinson’s motion for summary judgment on the free speech

4 || claim under the First Amendment is DENIED. Dkt. No. 72.

5 2. The instant case is REFERRED to Judge Robert M. Illman pursuant to the

6 || Pro Se Prisoner Settlement Program for settlement proceedings on the claim in this action

7 || against Defendants as described above. The proceedings shall take place within ninety

8 || (90) days of the filing date of this order. Judge [lman shall coordinate a time and date for

9 || a settlement conference with all interested parties or their representatives and, within ten

10 || (10) days after the conclusion of the settlement proceedings, file with the court a report

11 || regarding the prisoner settlement proceedings.

2 3. Other than the settlement proceedings ordered herein, and any matters

5 13 || Magistrate Judge IIIman deems necessary to conduct such proceedings, this action is

S 14 || hereby STAYED until further order by the court following the resolution of the settlement

3 15 || proceedings.

a 16 4, The Clerk shall send a copy of this order to Magistrate Judge IlIman in

3 17 Eureka, California.

18 This order terminates Docket No. 72.

19 IT ISSO ORDERED.

20 || Dated: _ August 5, 2024 Adunfhcncan

BETH LABSON FREEMAN

United States District Judge

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