Opinion
No. C 10-3409 RMW (PR).
July 29, 2011
ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS; GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff, a state prisoner proceeding pro se, filed a civil complaint in state court. On August 3, 2010, defendants noticed removal to federal court as the complaint alleged both federal and state claims. Defendants move to dismiss plaintiff's complaint for failure to exhaust. Defendants also move for summary judgment, arguing that there is no genuine issue of material fact and that they are entitled to the judgment as a matter of law. Plaintiff has opposed both motions, and defendants have filed a reply. Having carefully considered the papers submitted, the court hereby GRANTS defendants' motion to dismiss and GRANTS defendants' motion for summary judgment, for the reasons set out below.
Defendants' and Plaintiff's requests for judicial notice are GRANTED.
BACKGROUND
The following facts are undisputed.
On December 11, 2008, plaintiff applied for and was granted "inmate legal assistance" from Inmate Frank Clement ("Clement"), Cheri Clement's husband. (Statement of Facts at 1.) Clement was also a validated associate of the Aryan Brotherhood, and also housed at PBSP's SHU. (Decl. Jacquez at ¶ 8.) Plaintiff requested assistance for the purpose of aiding him in preparing a state habeas petition to challenge the "denial of correspondence," (Statement of Facts, Ex. A at 18.) Plaintiff intended to litigate about the false identification of corresponding with Cheri Clement. (Statement of Facts at 1.) On December 16, 2008, and December 22, 2008, plaintiff attempted to forward the November 5, 2008 document granting his appeal to Clement to help Clement prepare plaintiff's habeas petition. (Id. at 2.) On December 17, 2008, and December 24, 2008, Defendant Keevil, a library technician assistant working at PBSP's SHU law library (Decl. Keevil at ¶ 2), returned plaintiff's requests and document, explaining that the SHU law library had strict limitations regarding "legal passing." (Statement of Facts, Ex. A at 19, 22.) Specifically, Keevil explained to plaintiff that, pursuant to SHU law library regulation, Operational Procedure 822 H.2(e) allowed inmates to pass six handwritten pages, and that the proper procedure for passing printed materials was a one-time passing request that was routed through a correctional counselor. (Decl. Keevil at ¶¶ 3-4.)
Operational Procedure 822 was later replaced by the Department Operations Manual Supplement Section 101120.10(E). (Decl. Jacquez at ¶ 6.)
On January 2, 2009, plaintiff was in the SHU law library, and Clement was there as well. (Statement of Facts at 4.) Plaintiff attempted to ask Clement legal questions. (Id.) As a result, plaintiff and Clement were removed from the law library for a violation of the "no talking" policy and plaintiff's law library access was suspended for thirty days. (Id. and Ex. C.)
On January 6, 2009, plaintiff filed an inmate appeal, D-09-00050, complaining that he was prohibited from passing a copy of an inmate appeal grant to Clement, and alleging that the PBSP policy limiting the documents that are permitted to be passed between inmates denied him legal assistance. (Id., Ex. A at 1, 3-4.) On February 9, 2009, the first level appeal response denied plaintiff's appeal, concluding that the document plaintiff attempted to pass to Clement was not approved under the Department Operations Manual ("DOM") pursuant to the rules governing the SHU law library. (Id. Ex. A at 5.) On April 7, 2009, the second level appeal response denied plaintiff's appeal, concluding that the PBSP DOM regulations specifically addressed the procedures governing the SHU law library, and all library services. (Id., Ex. A at 9.) The response indicated that the document plaintiff attempted to pass was not approved under the PBSP DOM, and that the library staff complied with PBSP procedures. (Id.) Plaintiff filed an appeal to the Director's level of review challenging his inability to pass certain documents to his legal assistance inmate, as well as PBSP's restrictions on documents permitted to pass between inmates. (Id., Ex. A at 10-14.) The appeal at the Director's level of review was denied. (Id., Ex. A at 15-16.)
DISCUSSION
In his federal complaint, plaintiff alleges that PBSP's policy limiting the documents to be passed for legal assistance, PBSP's "no talking" policy, and the cumulative effect of both policies hindered his ability to pursue a state habeas action. Defendants argue that (1) the complaint should be dismissed because plaintiff's "no-talking" claim is unexhausted; (2) they are entitled to summary judgment; (3) defendants are entitled to qualified immunity; and (4) plaintiff's state claims fail. The court addresses each of defendants' arguments in turn.
A. Motion to Dismiss
1. Standard of Review
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 28 U.S.C. § 1997e(a). Nonexhaustion under § 1997e(a) is an affirmative defense; that is, defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. If the court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal without prejudice. Id. at 1120.
If the court looks beyond the pleadings in deciding an unenumerated motion to dismiss for failure to exhaust — a procedure closely analogous to summary judgment — the court must give the prisoner fair notice of his opportunity to develop a record. Wyatt, 315 F.3d at 1120 n. 14. Plaintiff was given such notice in the October 5, 2010 order in this matter.
The State of California provides its prisoners and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal review, (2) first formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections and Rehabilitation ("Director"). See Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). See Barry, 985 F. Supp. at 1237-38.
Defendants have the burden of raising and proving the absence of exhaustion, and inmates are not required to specifically plead or demonstrate exhaustion in their complaints. Jones v. Bock, 549 U.S. 199, 215-17 (2007). As there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005).
2. Analysis
Defendants argue, and plaintiff concedes (Opp. at 9), that he never exhausted his claim that the "no talking" policy hindered his ability to access the courts, or that the policy, in conjunction with the policy on acceptable passing of documents hindered his ability to access the courts. Thus, having considered the arguments and evidence submitted by the parties in support of and opposition to the motion to dismiss, the court finds that plaintiff did not provide PBSP prison officials with sufficient information to put them on notice that in addition to plaintiff's claim that the policy on passing documents to legal assistance inmates denied him access to the courts, PBSP's policy on "no talking" in the SHU law library independently or conjunctively denied his access to the courts. Consequently, the only exhausted claim presented in this federal complaint concerns PBSP's policy on document passing for legal assistance.
Defendants contend that the proper remedy is dismissal of the entire complaint because the claims are intertwined. (Reply at 2-3.) The PLRA does not require dismissal of the entire complaint when a prisoner has failed to exhaust some, but not all, of the claims included in the complaint. Jones v. Bock, 549 U.S. 199, 222-24 (2007) (rejecting "total exhaustion-dismissal" rule); Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). The proper treatment of a mixed complaint, i.e., a complaint with both exhausted and unexhausted claims, as here, depends on the relatedness of the claims. Id. at 1175. "When a plaintiff has filed a "mixed" complaint and wishes to proceed with only the exhausted claims, a district court should simply dismiss the unexhausted claims when the unexhausted claims are not intertwined with the properly exhausted claims." Id. In contrast, "when a plaintiff's mixed complaint includes exhausted and unexhausted claims that are closely related and difficult to untangle, dismissal of the defective complaint with leave to amend to allege only fully exhausted claims, is the proper approach." Id. at 1176. Here, while plaintiff's claims are intertwined, they are not difficult to untangle. Plaintiff's claims challenge separate policies and he asserts that each one violated his constitutional right to access to the courts. Accordingly, it is not necessary to dismiss the entire complaint with leave amend. Instead, the court GRANTS IN PART defendants' motion to dismiss, and dismisses without prejudice plaintiff's claim concerning the "no talking" policy.
B. Motion for Summary Judgment
1. Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits demonstrate that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, as is the case here, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The court is only concerned with disputes over material facts and "factual disputes that are irrelevant or unnecessary will not be counted."Liberty Lobby, Inc., 477 U.S. at 248 (1986. It is not the task of the court to scour the record in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Id. If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex Corp, 477 U.S. at 323.
At the summary judgment stage, the court must view the evidence in the light most favorable to the nonmoving party: if evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).
2. Analysis
Plaintiff claims that PBSP's SHU policy on document passing, as implemented by Defendant Jacquez, violated his constitutional right to access the courts. He further alleges that Defendant Keevil violated that right by refusing to forward copies of his inmate appeal to Inmate Clement, plaintiff's assigned and approved legal assistant. Finally, plaintiff argues that this prohibition denied him constitutionally adequate assistance from Clement.
Prisoners have a constitutional right of access to the courts.See Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). In Sands v. Lewis, 886 F.2d 1166 (1989), the Ninth Circuit divided such cases into two categories: (1) Those which assert inadequate law libraries or alternative sources of legal knowledge sufficient to prepare a suit, and (2) all others. Id. at 1171. As to the second category, the court required proof of "actual injury" to state a claim. Id. The court did not require actual injury for the first category, id., but that part of the holding was overruled by Lewis, 518 U.S. at 350-55 (1996). In short, whether a prisoner's claim is that a prison law library is inadequate or is that official action somehow blocked his access to the court, he must allege "actual injury." See id. To prove an actual injury, the prisoner must show that the inadequacy in the prison's program hindered his efforts to pursue a non-frivolous claim concerning his conviction or conditions of confinement. See id. at 354-55. Once the prisoner establishes a denial of access to the courts, the court should then determine whether the hindrance of the prisoner's access to court was reasonably related to legitimate penological interests. See id. at 361 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). If the hindrance passes theTurner test, the denial of access to the courts claim will fail even if there was actual injury.
Here, plaintiff argues that he was attempting to pursue a non-frivolous claim. Specifically, he alleges that he intended to file a habeas claim regarding the inadequate investigations by members of the IGI at PBSP, which "routinely" resulted in false information being placed into validated inmates files at PBSP. (Opp at 12.) The intended litigation centered around "faulty investigation techniques that the gang unit employs." (Opp. at 13.) Taken as true, this appears to state a non-frivolous claim.
The court notes that plaintiff has previously asserted that his intended litigation was about "denial of correspondence" rather than "faulty investigation techniques." Specifically, plaintiff's July 14, 2009 complaint to the California Victim Compensation and Government Claims Board avers that Clement was to assist him with "potential litigation to Del Norte Superior Court for denial of correspondence," and that the "intended litigation resulted from a chrono plaintiff received on 9-19-08 from Institutional Gang Investigations which falsly [sic] identified him as corresponding with Clement's wife . . ." (Defs.' Request for Judicial Notice at AGO 007.) In addition, in plaintiff's request for legal assistance, he indicated that he needed assistance with "potential litigation" regarding "denial of correspondence." (Statement of Facts, Ex. A at 18.)
Regardless of the conflicting assertions of plaintiff as to what he intended to litigate, plaintiff fails to demonstrate that he suffered an "actual injury" that was caused by PBSP's legal assistance program, and specifically, by the policy on document passing. That is to say, plaintiff failed to present facts to support his assertion that his inability to pass to Clement copies of his inmate appeal, D-08-02731, and related 128B chrono, hindered his efforts to pursue state habeas relief. Examples of impermissible hindrances include: a prisoner whose complaint "was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known[;]" and a prisoner who had "suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint." Lewis, 518 U.S. at 351; see, e.g., Hebbe v. Pliler, 627 F.3d 338, 343 (9th Cir. 2010) (plaintiff demonstrated that denying him law library access while on lockdown resulted in "actual injury" because he was prevented from appealing his conviction); Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (agreeing with district court that prisoner "did not allege injury, such as inability to file a complaint or defend against a charge, stemming from the restrictions on his access to the law library"). In addition, mere delay in filing papers would not be enough, for example, if they were nevertheless timely filed or accepted and considered by the court. See Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir. 1982).
Here, plaintiff does not allege that his petition was rejected for filing, or that anything adverse occurred in his attempt to file a habeas petition as a result of Clement not receiving these particular documents. In fact, not only does plaintiff fail to allege that he even attempted to file a habeas petition, but there is no indication that plaintiff has yet lost the opportunity to file such a habeas petition concerning his intended claim. Notably absent is any explanation connecting Clement's failure to receive copies of the inmate appeal with any frustrated efforts in initiating a habeas action. Based on these undisputed facts, plaintiff has not demonstrated that he suffered an "actual injury." See Lewis, 518 U.S. at 354-55. Thus, there is no genuine issue of material fact sufficient to allow a reasonably jury to determine that plaintiff was hindered from accessing the courts.
Alternatively, even assuming that plaintiff has demonstrated a hindrance to his access to the courts, the restriction on document passing is "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). Under theTurner analysis, a court must consider four factors when determining if a restriction that infringes on a prisoner's rights is reasonably related to legitimate penological interests: (1) whether the restriction has a logical connection to legitimate governmental interests; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) the "absence of ready alternatives," or, in other words, whether the rule at issue is an "`exaggerated response' to prison concerns."Id. at 89-90 (internal quotation marks and citations omitted). Where prison rules or regulations impede the exercise of a prisoner's constitutional rights, federal courts must discharge their duty to protect those rights. See id. However, courts must be aware that they are "ill equipped to deal with the increasingly urgent problems of prison administration and reform." Id. (citation and internal quotation marks omitted). Where the regulations of a state prison are involved, "federal courts have . . . additional reason to accord deference to the appropriate prison authorities." Id. at 85 (citation and internal quotation marks omitted).
a. Rational relationship
DOM Supplement Section 101120.10(E), entitled "Legal Assistance," for PBSP SHU inmates limits the frequency and method of communication for the purpose of legal assistance between two inmates. (Decl. Jacquez, Ex. A at 11.) The subsection specifically provides:
Legal assistance between two inmates will be provided by permitting them to submit a total of six handwritten pages of questions and answers dealing only with the case for which the assistance has been approved (e.g., research materials; inquiries as to the type of document needed and proper completion of same; case cites), or the one topic that was approved. Questions and answers may be submitted once a week. Failure to comply with the above procedures and regulations will be documented and may result in restriction from the Legal Assistance Program.
(Id.)
In considering, under the first prong of the Turner test, whether there is a rational connection between a challenged policy and a legitimate governmental interest, a court must determine "whether the governmental objective underlying the policy is (1) legitimate, (2) neutral, and (3) whether the policy is rationally related to that objective." Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999) (en banc) (internal quotation marks and citation omitted).
Here, Plaintiff does not dispute that there is a rational connection between the policy and a legitimate governmental interest. Maintaining institutional security is certainly a legitimate governmental interest. See Thornburgh v. Abbott, 490 U.S. 401, 415 (1989). Here, DOM Supplement Section 101120.10(E) is intended to maintain the safety and security of the prisons by attempting to limit potential criminal activity among gang members and associates by restricting their communications are legitimate. (Decl. Jacquez at ¶¶ 10-12).
The policy is neutral. Regulations restricting inmates First Amendment rights must operate in a neutral fashion, without regard to the content of the expression, and they are considered neutral for purposes of a Turner analysis if prison administrators draw distinctions based solely on their potential implications for prison security. Thornburgh, 490 U.S. at 415-16. Here, SHU inmates have previously used the SHU law library's document passing procedures to pass coded messages communicating and advancing prison gang activity. (Decl. Jacquez at ¶ 13.) Preventing the communication of coded messages is a neutral governmental interest aimed at enhancing prison security and not at the suppression of expression as claimed by plaintiff. Id.
Finally, prison officials' limiting the number of pages and type of writing allows them to review the documents without unnecessarily delaying an inmate's desire to obtain legal assistance. (Id. at ¶ 21.) Moreover, printed documents (as opposed to handwritten documents) containing "ghost writing" or coded messages are more difficult to detect. (Id. at ¶ 22.) Thus, there is a rational relationship between the restriction on documents passed between SHU inmates to be no more than six handwritten pages and the goal of maintaining prison security.
b. Alternative Means
The second factor to be considered under Turner is whether there exist alternative means of exercising the challenged right that remain open to prisoners. Mauro, 188 F.3d at 1061. "Where `other avenues' remain available for the exercise of the asserted right, courts should be particularly conscious of the `measure of judicial deference owed to correctional officials . . . in gauging the validity of the regulation.'" Id. (quoting Turner, 482 U.S. at 90.)
Plaintiff asserts that DOM Supplement Section 101120.10(E) is essentially a complete ban on his right to legal assistance in reviewing documents and preparing a court filing. (Opp. at 15.) As defendants argue, plaintiff had ready alternatives to receive legal assistance. He was not prohibited from passing up to six pages of handwritten communication in which he could have conveyed the information contained within the printed documents he wished to pass. Prison officials are not required to adopt the least restrictive means of achieving their legitimate objectives.See Mauro, 188 F.3d at 1060. The regulation at issue here, which expressly allows inmates to receive legal assistance, provides alternative means for inmates to retain their First Amendment right do so in a way that does not pose a threat to PBSP's legitimate governmental interests.
c. Impact of Accommodation
The third Turner factor is a determination of the impact the accommodation of the asserted constitutional right would have on prison personnel, other inmates, and the allocation of prison resources. Mauro, 188 F.3d at 1061. As relevant to the instant challenge, the Court must assess the impact of allowing SHU inmates to pass documents between each other without restriction.
Allowing SHU inmates unrestricted ability to pass documents would significantly and negatively impact the safety and security of PBSP. (Decl. Jacquez at ¶ 12.) Further, it would negatively impact the allocation of resources as the time to review each document would cause delays in the inmate receiving assistance, as well as take away from other necessary prison duties. (Id. at ¶ 21.) The unrestricted passing of documents between validated gang members within the SHU would have a significant negative impact on PBSP personnel, other inmates, and the allocation of prison resources.
d. Exaggerated Response
The fourth and final Turner factor to be considered is whether the policy is, in effect, an "exaggerated response" to the prison's concerns. See Mauro, 188 F.3d at 1062. In that regard, the burden is on the prisoner challenging the regulation, not on prison officials, to show there are obvious, easy alternatives to the regulation. Id.
Plaintiff claims that while SHU inmates can pass printed materials to another inmate, it is done as a one-time passing request, and only after it is determined that the SHU inmate has a current active court case. (Opp. at 8; Statement of Facts, Ex. A at 22.) Plaintiff suggests that this one-time passing request could be adapted to be utilized in preparation of litigation rather than only when litigation has already begun. (Opp. at 8-9, 17.) Defendants do not address this alternative. The burden is on plaintiff to demonstrate that the cost of providing this alternative would be "de minimis." Turner, 482 U.S. at 90-91. Here, although plaintiff does suggest an alternative method of accommodating his request, he does not provide any evidence or suggestion that this alternative would be at a "de minimis cost to valid penological interests." See id.
Plaintiff further claims that there is no reason that inmates like himself, who have not engaged in the type of conduct of which prison officials are concerned, should be subject to such restrictions. (Opp. at 7.) Regarding the implication that prison officials should restrict only those prisoners who have attempted to send coded messages or pass documents in an inappropriate manner, the Ninth Circuit has already decided that such an alternative could not be obtained at a "de minimis" cost. Cf. Frost v. Symington, 197 F.3d 348, 358 (9th Cir. 1999) ("forcing prison officials to wait until after violations have occurred before restricting inmates' access to these materials would unduly tie the hands of prison officials who see the need for preventive measures").
As noted, prison officials are not required to adopt the least restrictive means of achieving their legitimate objectives. See Mauro, 188 F.3d at 1063. The policy on document passing being restricted to six handwritten pages is not an exaggerated response to prison officials' legitimate penological concerns, in that the regulation limits less obscure attempts to pass coded messages between gang members, while still allowing those inmates to access legal assistance.
In sum, for the reasons stated above, the Court concludes that PBSP's SHU document passing policy is reasonably related to legitimate penological interests, see Thornburgh, 490 U.S. at 413, and, accordingly, the regulation does not violate the First Amendment.
Because the court has concluded that there is no genuine issue of material fact that the challenged policy is reasonably related to penological interests, plaintiff's related claim that the policy prevented him from receiving legal assistance cannot survive defendants' motion for summary judgment. See Johnson v. Avery, 393 U.S. 583, 490 (1969) (recognizing that while prisoners may not be barred from receiving legal assistance from other prisoners unless they are provided with a reasonable alternative to such assistance, the state may reasonably regulate the time when, and the place where, prisoner legal assistance is dispensed).
Defendants' motion for summary judgment is GRANTED.
Because the court grants defendants' motion for summary judgment, it is unnecessary to reach the issue of qualified immunity.
C. State law claims
Plaintiff's state law claims are dismissed under the authority of 28 U.S.C. § 1367(c)(3). See Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (court may decline to exercise supplemental jurisdiction over related state-law claims under subsection (c)(3) once it has dismissed all claims over which it has original jurisdiction). Plaintiff's state claims are based on the same set of facts as his federal claim, which the court has dismissed above. Accordingly, the court declines to exercise jurisdiction over the remaining state law claims, and will dismiss them without prejudice. See Reynolds v. County of San Diego, 84 F.3d 1162, 1171 (9th Cir. 1996).
CONCLUSION
Defendants' motion to dismiss is GRANTED in part. Defendants' motion for summary judgment is GRANTED. Judgment shall be entered in favor of defendants. The clerk shall terminate all pending motions and close the file.
IT IS SO ORDERED.
DATED: 7/28/11