(PC) Mitchell, et al. v. Felker et al

REPLY

E.D. Cal.August 21, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California DAMON G. MCCLAIN, State Bar No. 209508 Supervising Deputy Attorney General ERIN SULLIVAN, State Bar No. 242757 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5716 Fax: (415) 703-5843 E-mail: Erin.Sullivan@doj.ca.gov Attorneys for Defendants M. Cate, S. Kernan, T. McDonald, G. Giurbino, J. Tilton, T. Felker, M. Wright, F. Foulk, D. Vanderville, J. Owen, and D. Hellwig IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION ROBERT MITCHELL, et al., Plaintiffs, v. MATTHEW CATE, et al., Defendants. Case No. 2:08-CV-01196-TLN-EFB REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Date: October 17, 2013 Time: 2:00 p.m. Dept: Courtroom 2 Judge: The Honorable Troy L. Nunley Action Filed: May 30, 2008 Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 1 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page i Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Argument ........................................................................................................................................ 1 I. Defendants’ motion for summary judgment substantially complies with local rule 260(a). ..................................................................................................... 1 II. Defendants did not act with an intent or purpose to discriminate. .......................... 3 III. This Court has discretion to rule on defendants’ summary-judgment motion before considering the class certification issue. ...................................................... 5 IV. Plaintiffs’ claims for injunctive relief are moot. ..................................................... 6 A. Quezada’s claims for injunctive relief are moot. ........................................ 7 B. Trujillo’s claims for injunctive relief are moot. .......................................... 7 C. Abdullah’s claims for injunctive relief are moot. ....................................... 8 D. Mitchell’s claims for injunctive relief are moot. ......................................... 9 1. Mitchell’s Eighth Amendment claim for injunctive relief is moot. ............................................................................................. 10 2. Mitchell’s Fourteenth Amendment claim for injunctive relief is moot. ................................................................................ 11 V. Defendants Tilton, Owen, Hellwig, and Vanderville did not “implement, ratify, and approve race-based and excessively lengthy lockdowns.” .................. 13 VI. Defendants Foulk and Wright did not “implement, ratify, and approve race- based and excessively lengthy lockdowns.” ......................................................... 14 VII. Defendants did not violate Mitchell’s Eighth Amendment rights. ....................... 15 A. Mitchell was not deprived of outdoor exercise for eight continuous months. ...................................................................................................... 16 B. Defendants did not act with deliberate indifference. ................................ 17 VIII. Defendants did not violate Mitchell’s rights under the Equal Protection clause. .................................................................................................................... 21 IX. Qualified immunity ............................................................................................... 27 A. Defendants are entitled to qualified immunity on Mitchell’s Eighth Amendment claim. .................................................................................... 27 B. Defendants are entitled to qualified immunity on Mitchell’s Fourteenth Amendment claim. .................................................................. 29 X. Defendants did not engage in conduct that was “negligent,” “reckless,” “outrageous,” “atrocious,” or “utterly intolerable.” .............................................. 30 A. Defendants never intended to cause emotional injury to Mitchell. ........... 30 B. Defendants did not act negligently. ........................................................... 32 1. Mitchell fails to state a cause of action against Defendants Wright, Owen, and Hellwig. ......................................................... 32 2. Defendants Tilton, Felker, Foulk, and Vanderville did not breach a duty of care. .................................................................... 32 Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 2 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS (continued) Page ii Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB 3. Mitchell fails to show requisite causation. .................................... 33 XI. Defendants Felker, Wright and Foulk are entitled to discretionary act immunity because they engage in the conscious balancing of risks and advantages when making decisions regarding modified programs and lockdowns. ............................................................................................................ 34 Conclusion .................................................................................................................................... 36 Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 3 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page iii Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB CASES Abbott Laboratories v. Gardner 387 U.S. 136 (1967) .......................................................................................................... 10, 12 Adarand Constructors, Inc. v. Pena 515 U.S. 200 (1995) .......................................................................................................... 13, 22 Alcorn v. Anbro Eng., Inc. 2 Cal.3d 493 (1970) ................................................................................................................ 32 Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986) .......................................................................................................... 15, 17 Aoki v. Gilbert No. 2:11-cv-02797-MCE-CKD, 2013 WL 1284335 (E.D. Cal. Mar. 28, 2013) ...................... 1 Arizona v. California 460 U.S. 605 (1983) .......................................................................................................... 34, 35 Arrington v. Helms 438 F.3d 1336 (11th Cir. 2006) ................................................................................................. 6 Ashcroft v. al-Kidd 131 S. Ct. 2074 (2011) ............................................................................................................ 27 Barren v. Harrington 152 F.3d 1193 (9th Cir. 1998) ............................................................................................. 3, 23 Bell v. Wolfish 441 U.S. 520 (1979) ................................................................................................................ 12 Brown v. Critchfield 100 Cal.App.3d 858 (1980) ..................................................................................................... 34 Caldwell v. Montoya 10 Cal.4th 972 (1995) ............................................................................................................. 35 Celotex Corp. v. Catrett 477 U.S. 317 (1986) .......................................................................................................... 23, 27 City of Los Angeles v. Lyons 461 U.S. 95 (1983) .................................................................................................................... 7 Columbus Bd. of Educ. v. Penick 443 U.S. 449 (1979) .................................................................................................................. 3 Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 4 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page iv Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Corona v. Knowles No. 1:08-cv-00237-LJO-BAM, 2012 WL 4051966 (E.D. Cal. Sept. 14, 2012) ......... 18, 19, 20 Cowen v. Bank United of Texas, FSB 70 F.3d 937 (7th Cir. 1995) ....................................................................................................... 5 Cruz v. Beto 405 U.S. 319 (1972) .......................................................................................................... 11, 26 Cutter v. Wilkinson 544 U.S. 709 (2005) .......................................................................................................... 22, 23 Davidson v. City of Westminster 32 Cal.3d 197 (1982) ........................................................................................................ 30, 31 Dilley v. Gunn 64 F.3d 1365 (9th Cir. 1995) ............................................................................................. 7, 8, 9 Dixon v. City of Livermore 127 Cal.App.4th 32 (2005)...................................................................................................... 33 Employers-Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Anchor Capital Advisors 498 F.3d 920 (9th Cir. 2007) ................................................................................................. 6, 7 Enrico’s, Inc. v. Rice 730 F.2d 1250 (9th Cir. 1984) ................................................................................................... 8 Falcon Enterprises, Inc. v. Publishers Service, Inc. 438 Fed.Appx. 579 (9th Cir. 2011) ........................................................................................... 1 Fayle v. Stapley 607 F.2d 858 (9th Cir. 1979) ................................................................................................... 14 Figueroa v. United States 466 F.3d 1023 (1st Cir. 2007) ................................................................................................... 5 Fisher v. University of Texas at Austin ___ U.S. ___, 133 S. Ct. 2411 (2013) ......................................................................... 21, 22, 23 George v. Potter No. 1:03-cv-06052-DLB, 2010 WL 1404346 (E.D. Cal. Apr. 6, 2010) ................................... 2 Girarldo v. Dept. of Corrections and Rehabilitation 168 Cal.App.4th 231 (2008).................................................................................................... 32 Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 5 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page v Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Gomillion v. Lightfoot 364 U.S. 339 (1960) ................................................................................................................ 22 Greene v. Solano County Jail 513 F.3d 982 (9th Cir. 2008) ................................................................................................... 23 Grutter v. Bollinger 539 U.S. 306 (2003) .......................................................................................................... 22, 23 Guerra v. Sutton 783 F.2d 1371 (9th Cir. 1986) ................................................................................................. 29 Hartmann v. California Dept. of Corrections and Rehabilitation 707 F.3d 1114 (9th Cir. 2013) ........................................................................................... 23, 26 Hayes v. Garcia 461 F. Supp. 2d 1198 (S.D. Cal. 2006) ............................................................................. 17, 28 Hayward v. Procunier 629 F.2d 599 (9th Cir. 1980) ............................................................................................. 10, 11 Hodgers-Durgin v. Lopez 199 F.3d 1037 (9th Cir. 1999) ................................................................................................... 7 Hoptowit v. Ray 682 F.2d 1237 (9th Cir. 1982) ................................................................................................. 31 Hurd v. Garcia 454 F. Supp. 2d 1032 (S.D. Cal. Sept. 28, 2006) .................................................................... 28 Johnson v. California 543 U.S. 499 (2005) ............................................................................................................ 9, 12 Jones v. Garcia 430 F. Supp. 2d 1095 (S.D. Cal. Mar. 30, 2006) .................................................................... 28 Lawson v. Superior Court 180 Cal.App.4th 1372 (2010).................................................................................................. 32 Lee v. City of Los Angeles 205 F.3d 668 (9th Cir. 2001) ..................................................................................... 4, 5, 24, 26 Leslie G. v. Perry & Associates 43 Cal.App.4th 472 (1996)...................................................................................................... 34 Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 6 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page vi Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Lucas v. City of Visalia No. 1:09–CV–1015 AWI DLB, 2010 WL 1444667 (E.D. Cal. April 12, 2010) .................... 30 Lujan v. Defenders of Wildlife 504 U.S. 555 (1992) .......................................................................................................... 10, 12 McCorkle v. City of Los Angeles 70 Cal. 2d 252 (1969) ............................................................................................................. 36 Michael v. Ghee 498 F.3d 372 (6th Cir. 2007) ..................................................................................................... 5 Mitchell v. Adams No. CIV-S-06-2321 GEB GGH, 2010 WL 2976073 (E.D. Cal. July 27, 2010) ....................... 2 Mitchell v. Dupnik 75 F.3d 517 (9th Cir. 1996) ............................................................................................... 10, 12 Mitchell v. Felker No. 2:08-cv-1196 TLN EFB P, 2012 WL 2521827 (E.D. Cal., June 28, 2012) ..................... 35 Morgan v. County of Yuba 230 Cal. App. 2d 938 (1964) ................................................................................................... 36 Mosher v. Saalfeld 589 F.2d 438 (9th Cir. 1978) ................................................................................................... 14 Navajo Nation v. U.S. Forest Serv. 535 F.3d 1058 (9th Cir. 2008) ........................................................................................... 13, 15 Noble v. Adams 636 F.3d 525 (9th Cir. 2011) ................................................................................................... 28 Noble v. Adams 646 F.3d 1138 (9th Cir. 2011) ........................................................................................... 35, 36 Noble v. Los Angeles Dodgers, Inc. 168 Cal.App.3d 912 (1985) ..................................................................................................... 33 Norwood v. Vance 591 F.3d 1062 (9th Cir. 2010) ............................................................................... 27, 28, 35, 36 Pell v. Procunier 417 U.S. 817 (1974) .............................................................................................. 12, 22, 25, 26 Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 7 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page vii Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Personnel Adm. of Mass. v. Feeney 442 U.S. 256 (1979) ........................................................................................................ 3, 4, 24 Pickern v. Pier 1 Imports, Inc. 457 F.3d 963 (9th Cir. 2006) ................................................................................................... 13 Pitts v. Terrible Herbst, Inc. 653 F.3d 1081 (9th Cir. 2011) ................................................................................................... 6 Quinn v. Fresno Co. Sheriff No. 1:10-cv-01617-LJO-BAM, 2012 WL 2052162 (E.D. Cal. June 6, 2012).......................... 2 Rakestraw v. Cal. Physicians’ Service 81 Cal. App. 4th 39 (2000)...................................................................................................... 32 Reimers v. Oregon 863 F.2d 630 (9th Cir. 1988) ..................................................................................................... 7 Richardson v. Runnels 594 F.3d 666 (9th Cir. 2010) ............................................................................................. 11, 26 Rodriguez v. Hayes 591 F.3d 1105 (9th Cir. 2009) .................................................................................................... 8 Soremekun v. Thrifty Payless, Inc. 509 F.3d 978 (9th Cir. 2007) ................................................................................................... 23 Susman v. City of Los Angeles 269 Cal.App.2d 803 (1969) ..................................................................................................... 35 Taylor v. List 880 F.2d 1040 (9th Cir. 1989) ................................................................................................. 14 U.S. for Use and Ben. of Wiltec Guam, Inc. v. Kahaluu Const. Co. 857 F.2d 600 (9th Cir. 1988.) ..................................................................................................... 2 U.S. Parole Comm’n v. Geraghty 445 U.S. 338 (1980) .................................................................................................................. 6 U.S. v. Burrell No. 2:11-cv-03079-GEB, 2013 WL 1858424 (E.D. Cal. May 2, 2013) ................................... 1 United States v. Detroit Timber & Lumber Co. 200 U.S. 321 ............................................................................................................................ 23 Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 8 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page viii Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Varshock v. Calif. Dept. of Forestry and Fire Protection 194 Cal. App. 4th 635, 2011 WL 1486086 (4th Dist. 2011) .................................................... 2 Village of Arlington Heights v. Metropolitan Hous. Dev. Corp. 429 U.S. 252 (1977) .................................................................................................................. 3 Villiarimo v. Aloha Island Air, Inc. 281 F.3d 1054 (9th Cir. 2002) ........................................................................................... 15, 17 Washington v. Davis 426 U.S. 229 (1976) ...................................................................................................... 3, 24, 31 White v. Murtha 377 F.2d 428 (5th Cir. 1967) ................................................................................................... 35 Wiesmueller v. Kosobucki 513 F.3d 874 (7th Cir. 2008) ..................................................................................................... 5 Wright v. Schock 742 F.2d 541 (9th Cir. 1984) ..................................................................................................... 5 STATUTES Government Code § 820.2 ............................................................................................................................... 35, 36 United States Code, Title 42 § 1983 .................................................................................................................................. 3, 14 CONSTITUTIONAL PROVISIONS United States Constitution Eighth Amendment .......................................................................................................... passim Fourteenth Amendment .................................................................................................... passim COURT RULES Federal Rule of Civil Procedure rule 16(b)(4) ............................................................................................................................ 32 rule 56........................................................................................................................................ 1 rule 56(c)(1)(A) ......................................................................................................................... 1 rule 56(c)(3) .............................................................................................................................. 1 rule 68........................................................................................................................................ 6 Local Rule 260(a) ........................................................................................................................ 1, 3 Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 9 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Defendants M. Cate, S. Kernan, T. McDonald, G. Giurbino, J. Tilton, T. Felker, M. Wright, F. Foulk, D. Vanderville, J. Owen, and D. Hellwig submit this reply in support of Defendants’ Motion for Summary Judgment. ARGUMENT I. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SUBSTANTIALLY COMPLIES WITH LOCAL RULE 260(A). Throughout their opposition, Plaintiffs argue that Defendants’ summary-judgment motion should be denied outright because it does not fully adhere to Local Rule 260(a) which provides, in part, that summary judgment motions “shall be accompanied by a ‘Statement of Undisputed Facts’ that shall enumerate discretely each of the specific material facts relied upon in support of the motion.” E.D. Cal. R. 260(a). Contrary to Plaintiffs’ allegations, Defendants substantially complied with Local Rule 260(a) by filing a separate “Statement of Undisputed Facts in Support of Defendants’ Motion for Summary Judgment.” (Court Docket (CD) 255.) Furthermore, Rule 56 of the Federal Rules of Civil Procedure does not authorize denial of a summary judgment motion simply because a separate statement of facts is partially deficient. Fed. R. Civ. P. 56(c)(1)(A); Fed. R. Civ. P. 56(c)(3). Accordingly, the Court should reject Plaintiffs’ invitation to simply deny Defendants’ summary-judgment motion “in its entirety.” In asking the Court to deny Defendants’ summary-judgment motion for failure to comply with Local Rule 260(a), Plaintiffs cite to various cases—all of which are inapposite. In those cases, the moving parties failed to include a separate statement of undisputed facts altogether. Aoki v. Gilbert, No. 2:11-cv-02797-MCE-CKD, 2013 WL 1284335, at *1 (E.D. Cal. Mar. 28, 2013); U.S. v. Burrell, No. 2:11-cv-03079-GEB, 2013 WL 1858424, at *1 (E.D. Cal. May 2, 2013), and Falcon Enterprises, Inc. v. Publishers Service, Inc., 438 Fed.Appx. 579, 582 (9th Cir. 2011). Here, Plaintiffs do not dispute that Defendants filed a separate statement of facts. Indeed, Defendants’ separate statement is referenced countless times in Plaintiffs’ opposition. And to the extent that Defendants rely on evidence not referenced or included in their separate statement, Defendants meticulously cite to particular evidence they rely on to establish their undisputed facts in the summary-judgment motion itself. (See, generally CD 254.) Each claim on which Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 10 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Defendants seek summary judgment is clearly identified and supported by declarations, exhibits, and other documents filed in support of Defendants’ summary-judgment motion. (CDs 253 to 268.) The Court may consider evidence that is not contained in the separate statement of facts and is not required to deny a motion simply because the evidence is not referenced in the moving party’s separate statement. See Quinn v. Fresno Co. Sheriff, No. 1:10-cv-01617-LJO-BAM, 2012 WL 2052162, at *5 (E.D. Cal. June 6, 2012) (“Plaintiff’s opposition substantially complies with Local Rule 260(b) and therefore declines Defendants’ invitation to simply disregard Plaintiff’s evidence to the extent that it is not listed in Plaintiff’s response to Defendants’ Statement of Undisputed Facts”); see also George v. Potter, No. 1:03-cv-06052-DLB, 2010 WL 1404346 (E.D. Cal. Apr. 6, 2010) (the Court ordered the plaintiff to file a response in compliance with the local rules); see also Varshock v. Calif. Dept. of Forestry and Fire Protection, 194 Cal. App. 4th 635, 2011 WL 1486086 (4th Dist. 2011) (a trial court is not required to deny a motion simply because the moving party has not included a separate statement that sets forth the material facts it contends are undisputed, and may consider evidence contained elsewhere in the motion.) In fact, even Plaintiff Robert Mitchell has benefitted from this lenient standard. In Mitchell v. Adams, the Court considered evidence Mr. Mitchell included in his declaration(s) but did not set forth in his separate statement. Mitchell v. Adams, No. CIV-S-06-2321 GEB GGH, 2010 WL 2976073, at *6-7 (E.D. Cal. July 27, 2010). Defendants have provided proper evidence in support of their motion, the evidence relied upon is not hidden in voluminous papers, and the motion does not require the Court to “comb through the record to ascertain additional facts,” as Plaintiffs suggest. Lastly, the fact that Plaintiffs’ opposition to Defendants’ summary-judgment motion is ninety-three pages (five pages longer than the summary-judgment motion itself) demonstrates that Plaintiffs had sufficient notice of the factual disputes and supporting evidence upon which Defendants’ motion was based. There is a strong policy favoring disposition of cases on their merits. U.S. for Use and Ben. of Wiltec Guam, Inc. v. Kahaluu Const. Co., 857 F.2d 600, 605 (9th Cir. 1988.) Accordingly, the Court should exercise its discretion and refuse Plaintiffs’ request to deny the motion in its entirety Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 11 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB because, as stated above, Defendants substantially complied with Local Rule 260(a) and their motion is supported by competent evidence in the record. II. DEFENDANTS DID NOT ACT WITH AN INTENT OR PURPOSE TO DISCRIMINATE. Seeking injunctive relief, the Plaintiffs claim that Defendants have violated their Equal Protection rights by implementing and maintaining a “policy and practice of imposing lengthy race-based prison lockdowns.” (CD 280 at 13:2-3.) Without ever citing to or referencing the California Department of Corrections and Rehabilitation’s (CDCR) policy, Plaintiffs claim that inmates of a “targeted race or ethnicity are regularly locked in their cells essentially twenty-four hours a day, and prohibited from going outside, attending religious services, receiving visits or telephone calls from family members, attending classes, or accessing other prison programs.” (CD 280 at 14:24-27, 15:1.) The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides, in relevant part, “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend. XIV. Discrimination on the basis of race and sex is forbidden by the Equal Protection Clause. See Personnel Adm. of Mass. v. Feeney, 442 U.S. 256, 272–73 (1979). In order to prove a violation of the Equal Protection Clause, the Plaintiffs must prove that Defendants acted with discriminatory intent or purpose. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264 (1977); Washington v. Davis, 426 U.S. 229, 239 (1976). “[O]fficial action will not be held unconstitutional solely because it results in a racially [or sexually] disproportionate impact.” Village of Arlington Heights, 429 U.S. at 264–65. “[D]isparate impact and foreseeable consequences, without more, do not establish a constitutional violation.” Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464 (1979). “[T]he Fourteenth Amendment guarantees equal laws, not equal results.” Feeney, 442 U.S. at 273. To state a claim under 42 U.S.C § 1983 for a violation of the Equal Protection clause, “a plaintiff must show that the defendant[] acted with an intent or purpose to discriminate against the plaintiff based on membership within a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). “‘Discriminatory purpose’ . . . implies more than intent as a volition or Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 12 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB intent as awareness of consequences. It implies that the decision maker . . .selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.’” Lee v. City of Los Angeles, 205 F.3d 668, 687 (9th Cir. 2001) (quoting Feeney, 442 U.S. at 279). CDCR’s lockdown and modified program policy is facially neutral. According to the policy, CDCR’s “Secretary, through the individual Wardens and the Division of Adult Institutions (DAI), shall establish and maintain unlock procedural guidelines for the implementation of lockdowns and modified programs, and the return to normal programming.” (CD 238, Ex. A.) Because Plaintiffs have never claimed that CDCR’s policy is discriminatory on its face, they must demonstrate that the policy is based upon some “invidious or discriminatory purpose.” Lee, 250 F.3d at 687. Plaintiffs would like the Court to believe that the Plaintiffs are “subjected to the lockdowns solely by virtue of their ethnic or racial heritage, and where they live.” (CD 280 at 37:8-10.) But the evidence in this case reveals just the opposite. Many things can trigger lockdowns and modified programs including, but not limited to, medical quarantines, staff training, facility maintenance problems, power outages, and facility conversions. (CD 238 at ¶ 25.) But inmate behaviors that raise serious safety and security concerns are by far the most common cause of modified programs and lockdowns. (Id.) Lockdowns and modified programs are only implemented in response to such behaviors when prison officials have good reasons to believe that ongoing serious threats to inmate and staff safety or institutional safety exist. (Id.) In emergency situations, for the safety of staff and inmates or to maintain secure and orderly operations, the Warden may implement, on a short-term basis, a modified program or lockdown that separates inmates on the basis of race or ethnicity. (Id. at ¶ 42.) The 2012 amendments to the DOM emphasize that prison officials “shall not target a specific racial or ethnic group unless it is necessary and narrowly tailored to further a compelling government interest, such as restoring security and order after an incident or protecting the health and safety of the inmates and staff.” (CD 238, Ex. A.) Apart from conclusory allegations, Plaintiffs have not demonstrated that Defendants took a particular course of action “because of” and not merely Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 13 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB “in spite of” its adverse effects upon the Plaintiffs. Lee, 205 F.3d at 687. In fact, CDCR’s policy communicates that race and ethnicity is anything but a motivating factor in the Warden’s decision or action to implement a lockdown or modified program. It is inmates’ behavior, and not a discriminatory statewide policy or practice, that necessitates security-based lockdowns and modified programs. (CD 238 ¶ 42, Ex. A.) Because CDCR’s lockdown and modified program policy is facially neutral and because Plaintiffs have not and cannot demonstrate that Defendants’ actions in implementing the policy were motivated by discriminatory animus towards the Plaintiffs, their Equal Protection claim fails and Defendants are entitled to summary judgment. III. THIS COURT HAS DISCRETION TO RULE ON DEFENDANTS’ SUMMARY-JUDGMENT MOTION BEFORE CONSIDERING THE CLASS CERTIFICATION ISSUE. According to Plaintiffs, the Court “must decide the pending class certification motion” before ruling on a dispositive motion and any other course of action is “utterly lacking in legal or factual support.” (CD 280 at 34:6-7, 12-14.) This is not true. As the Ninth Circuit held in Wright v. Schock, “[t]he timing provision of Rule 23 is not absolute. Under the proper circumstances—where it is more practicable to do so and where the parties will not suffer significant prejudice— the district court has discretion to rule on a motion for summary judgment before it decides the certification issue.” Wright v. Schock, 742 F.2d 541, 543 (9th Cir. 1984). Many other circuits agree that the trial judge should be afforded discretion in determining whether to consider summary judgment before class certification. See Wiesmueller v. Kosobucki, 513 F.3d 874, 878 (7th Cir. 2008) (“‘It is true that Rule 23(c)(1) of the civil rules requires certification as soon as practicable, which will usually be before the case is ripe for summary judgment. But ‘usually’ is not ‘always,’ and ‘practicable’ allows for wiggle room.” (quoting Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941–42 (7th Cir. 1995)); see also Michael v. Ghee, 498 F.3d 372, 374 n.1 (6th Cir. 2007) (affirming summary judgment and dismissal when the motion for class certification was still pending); Figueroa v. United States, 466 F.3d 1023, 1028 (1st Cir. 2007) (affirming summary judgment when the Court of Federal Claims had “stayed the class certification issue pending resolution of dispositive motions” and then denied the class Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 14 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB certification motion as moot after summary judgment was granted); Arrington v. Helms, 438 F.3d 1336, 1340 n.2 (11th Cir. 2006) (affirming summary judgment when the “district court ruled on the summary judgment motions before it considered the class certification issue”). Plaintiffs cite to Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir. 2011) for the proposition that the Court should rule on the class certification issue before ruling on Defendants’ summary-judgment motion because “mooting the class representatives’ claims will not necessarily moot the class action.” (CD 280 at 35:13-16.) Plaintiffs’ reliance on Pitts is misplaced. In Pitts, the Ninth Circuit held that an unaccepted Rule 68 offer of judgment does not moot a class action. Defendants have not made a Rule 68 offer here. If anything, Pitts serves as a reminder that courts do not have constitutional authority to decide moot cases. Pitts, 653 F.3d at 1087. Plaintiffs also cite U.S. Parole Comm’n v. Geraghty, 445 U.S. 338, 404 (1980). (CD 280 at 34:28, 35:1-5.) Plaintiffs’ reliance on this case is also misleading. Geraghty establishes that once a ruling has been made on class certification, mooting of the purported class representative’s claim would not moot the class action as a whole. See Geraghty, 445 U.S. at 388. Unlike in Geraghty, the class determination in this case has not yet been made. As described below and in Defendants’ summary-judgment motion, the Plaintiffs’ claims are moot. And mooting of the Named Plaintiff’s claims before a ruling on class certification generally moots the class action itself. Employers-Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Anchor Capital Advisors, 498 F.3d 920, 924 (9th Cir. 2007) (a “suit brought as a class action must as a general rule be dismissed for mootness when the personal claims of all named plaintiffs are satisfied and no class has been properly certified”). IV. PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF ARE MOOT. Plaintiffs allege that this case presents a “classic ‘live’ controversy” because “[e]ach of the Plaintiffs have been and continue to be impacted by Defendants’ policy and practice of implementing lengthy race-based lockdowns.” (CD 280 at 36:23, 37:5-7.) Plaintiffs further claim that the Plaintiffs “are subjected to the lockdowns solely by virtue of their ethnic or racial heritage, and where they live.” (Id. at 37:8-10.) Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 15 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB The evidence, however, tells a remarkably different story. A. Quezada’s Claims for Injunctive Relief are Moot. Plaintiffs contend that Defendants “locked down Mr. Quezada several times because of his ethnicity.” (Id. at 24:19-20.) Since January 2012, Alvaro Quezada has been subjected to one modified program. (CD 254 at 31:19-23; CD 258; CD 266; Defendants’ Statement of Undisputed Facts (DUF) 46-47.) It lasted four days and affected all Security Housing Unit (SHU) inmates assigned to Facilities 4A1, 4A2, and 4B at Corcoran. (CD 258 at ¶¶ 2, 6-7; CD 258-1.) An inspection of the prison’s Small Management Yards revealed that pieces of metal stock were missing or had been manipulated. (DUF 42.) The modified program was implemented solely to ensure the safety and security of the prison’s inmates and staff and it only affected recreational yard. (CD 258 at ¶ 7.) All other programs afforded to SHU inmates remained normal. (Id. at ¶4; CD 258-1.) Quezada’s situation is in stark contrast to Plaintiffs’ allegation that even under the current policy, Defendants implement race-based “lockdowns lasting months, years, and even a decade.” (CD 280 at 44:12-14, 17, 45:1.) “Absent a threat of immediate and irreparable harm, federal courts should not enjoin a state to conduct its business in a particular way.” Hodgers-Durgin v. Lopez, 199 F.3d 1037, 1042 (9th Cir. 1999). Any claim for injunctive relief by Quezada is moot and should be dismissed because it “rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Id. at 1044. B. Trujillo’s Claims for Injunctive Relief are Moot. Tony Trujillo was paroled on April 30, 2013. (DUF 3.) An inmate’s release from prison renders his claim for injunctive relief moot. Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995). Courts are reluctant to find an exception to this well-established rule, particularly when any possibility of recurrence hinges on the plaintiff’s own misconduct (i.e., violation of parole), as it would here. Reimers v. Oregon, 863 F.2d 630, 632 (9th Cir. 1988). It is nothing more than speculation for Plaintiffs to allege that Trujillo will return to prison and be subjected to the same conditions described in the Second Amended Complaint. Such speculation is insufficient to establish the existence of a present, live controversy. See City of Los Angeles v. Lyons, 461 U.S. Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 16 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB 95, 109 (1983). In Rodriguez v. Hayes (the case Plaintiffs rely on for their contention that Trujillo’s claim is not moot), the Ninth Circuit reversed a district court’s denial of class certification and held that the class met the requirements of Rule 23. Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2009). Specifically, the Court held that “mootness of the Petitioner's claim is not a basis for denial of class certification, but rather is a basis for dismissal of Petitioner’s action.” Id. at 1117-18. Here, the Court has not yet ruled on class certification. Defendants contend, and have demonstrated, that Trujillo’s recent parole moots his individual claims for injunctive relief. C. Abdullah’s Claims for Injunctive Relief are Moot. Abdullah’s claims are moot because the prison where he is incarcerated—California State Prison, Solano—is presently under a court order prohibiting CDCR from imposing race-based lockdowns at that prison. (CD 157-5). Because the Solano County Superior Court already granted Abdullah the equitable relief he seeks, his claims are moot. Any relief the court could now grant would be ineffectual. See Enrico’s, Inc. v. Rice, 730 F.2d 1250, 1254 (9th Cir. 1984) (Where the court can no longer grant effective relief, the court lacks jurisdiction and must dismiss the case as moot.). Moreover, if the Court were to grant Abdullah injunctive relief directed at CSP-Solano, it would necessarily interfere with the Superior Court’s ordered remedial plan, which CSP-Solano has already implemented. (See CD 280 at 20:18-25, 21:2-3.) In their opposition, Plaintiffs identify three problems with this argument. Specifically, Plaintiffs claim that: (1) Abdullah is “unlikely to remain at CSP Solano” (CD 280 at 39:17-18); (2) Defendants’ appeal of In re Haro is pending (Id. at 39:18-19); and (3) CSP Solano is still imposing race-based lockdowns (Id. at 39:19-20). According to Plaintiffs, “Defendants make no attempt to show that Mr. Abdullah will not be transferred in the future.” (Id. at 39:25.) Notably, Plaintiffs make no attempt to show that Mr. Abdullah will be transferred. There is no reasonable expectation or demonstrated probability that Abdullah will be transferred. Accordingly, the Court should dismiss Abdullah’s claim for injunctive relief as moot. Dilley, 64 F.3d at 1368 (inmate’s “claim that he might be transferred . . . some time in the future [was] ‘too speculative’ to prevent mootness”). Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 17 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Plaintiffs further contend that there is “substantial factual dispute about whether Defendants will actually comply with the Haro decision.” (Id. at 40:16-17.) As evidence, Plaintiffs refer to five CSP-Solano modified programs identified in Defendants’ summary-judgment motion. (Id. at 41:17-24.) What Plaintiffs fail to mention is that each of the modified programs occurred before the issuance of the January 18, 2013 Haro order. Again, there is no reasonable expectation or demonstrated probability that CSP-Solano will not comply with the Haro order. Indeed, Plaintiffs admit that “[t]here is no evidence suggesting that either Pelican Bay or Solano has experienced anything other than success with court-ordered race-neutral lockdown policies.” (Id. at 21:2-3.) Based on the above, Abdullah’s claims for injunctive relief are moot. D. Mitchell’s Claims for Injunctive Relief are Moot. In their opposition, Plaintiffs repeatedly allege that Defendants implement lengthy, race- based lockdowns and modified programs. (CD 280 at 44:12-13) (“Under Defendants’ lockdown policy, the prisons may continue to implement lockdowns of indefinite length.”); (CD 280 at 44:13-14) (“In the past three years, Defendants implemented lockdowns lasting months, years, and even a decade.”); (CD 280 at 45:12-13) (“Plaintiffs continue to be at risk of excessively lengthy race-based lockdowns.”); (CD 280 at 37:9-10) (“the Plaintiffs are subjected to the lockdowns solely by virtue of their ethnic or racial heritage, and where they live.”). In an effort to defeat mootness, Plaintiffs further claim that “Defendants’ past practice, coupled with their ongoing policy demonstrates the likelihood that Plaintiffs will suffer lengthy and race-based lockdowns in the future.” (CD 280 at 44, n.12.) Defendants do not submit that Mitchell will never be subject to a modified program or lockdown in the future. Prisons are extremely dangerous places. Johnson v. California, 543 U.S. 499, 515 (2005). And implementing a lockdown or modified program may be necessary when prison officials have good reasons to believe that ongoing serious threats to inmate and staff safety or institutional security exist. (CD 238 at ¶ 25.) Rather, it is Defendants’ position that Mitchell’s claims for injunctive relief are moot because he is not subject to any of the conditions about which he complains in his Second Amended Complaint. Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 18 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB 1. Mitchell’s Eighth Amendment Claim for Injunctive Relief is Moot. Mitchell is classified as a Level II inmate at Folsom State Prison. (DUF 9). Since January 2012, Mitchell has been subjected to five modified programs, the longest of which lasted two weeks. (CD 254 at 1-2; CD 260 at ¶¶ 5-15, 18-19; CD 267 at ¶ 9; CD 267-1 at 65-68.) Plaintiffs do not dispute the circumstances surrounding these five modified programs, or their duration. (See CD 280 at 42-45.) Instead, Plaintiffs attempt to distract the Court with specious and wholly conjectural claims that the prisons “may continue to implement lockdowns of indefinite length.” (CD 280 at 44:12-13) (emphasis added). In determining mootness, the underlying concern is whether the potential injury is too speculative in light of the present circumstances. Mitchell v. Dupnik, 75 F.3d 517, 527-28 (9th Cir. 1996); Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967); Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992). Here, Defendants have uncontrovertibly demonstrated that the five modified programs Mitchell experienced since January 2012 came nowhere close to “cross[ing] the eighth amendment line.” Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980) (finding denial of yard time for a month not unconstitutional). Moreover, in their oppositions to Plaintiffs’ motions for class certification and preliminary injunction, Defendants established that of the 431 new security-related modified programs implemented across all male prisons in 2012, 80% lasted one month or less. (CD 231-3.) Of the security-related modified programs that lasted more than 30 days in 2012, almost 90% were implemented in only fourteen of CDCR’s adult male prisons. (CD 249 at ¶ 30; CD 231-3.) Not surprisingly, those fourteen prisons each contained Level III or Level IV general-population facilities, where the most violent and disruptive inmates are housed. (CD 249 at ¶ 30.) This is hardly a “temporary downtick in lockdowns,” as Plaintiffs allege. (CD 280 at 45:11-13.) Based on the present circumstances, there is no reason to believe that Mitchell is “in imminent danger of being subjected to excessively lengthy lockdowns in the immediate future” as he claims to be. (CD 84 at ¶ 86.) Since January 2012, Mitchell’s outdoor exercise privileges were suspended on only five occasions, and never for longer than two weeks. And apart from Plaintiffs’ conclusory and speculative hypotheticals, there is no reasonable expectation that Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 19 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Mitchell will again be subjected to the same allegedly unconstitutional conditions (i.e., “excessively lengthy lockdowns” (Id. at 10:10-11)). As a result, Mitchell’s individual Eighth Amendment claim for injunctive relief is moot and must be dismissed. 2. Mitchell’s Fourteenth Amendment Claim for Injunctive Relief is Moot. Mitchell’s claim for injunctive relief under the Fourteenth Amendment’s Equal Protection Clause is also moot. As demonstrated in Defendants’ summary-judgment motion, and again below, there is no reasonable expectation that the alleged “wrong” (i.e., alleged discriminatory lockdowns and modified programs) will be repeated. Mitchell claims that he is “in imminent danger of being subjected to discriminatory race-based lockdowns in the immediate future because Defendants continue to impose race-based lockdowns pursuant to their discriminatory policies and practices.” (CD 84 at ¶ 79.) Mitchell further alleges that “Defendants have imposed race-based lockdowns very frequently (approximately one per day) at prisons across the State.” (CD 84 at ¶ 79.) This is not a fair or accurate characterization of Mitchell’s current situation, or of CDCR’s policy or practices. Modified programs and lockdowns that happened years ago do not show that Defendants are currently violating Mitchell’s equal protection rights. Nor can they. Race-based decisions made in response to the “necessities of prison security and discipline” do not violate the Fourteenth Amendment when they are narrowly tailored to legitimate prison goals. Cruz v. Beto, 405 U.S. 319, 321 (1972); Richardson v. Runnels, 594 F.3d 666, 671 -672 (9th Cir. 2010). Since January 2012, Mitchell has experienced two modified programs that impacted a particular racial group. Both survive strict scrutiny and should inform the Court’s determination that there is no reasonable expectation that Mitchell’s Fourteenth Amendment rights will be violated by lockdowns and modified programs in the future. The first modified program (#FSP-11-12-019) lasted one week and was in response to a race riot involving more than fifty Black and White inmates at Folsom State Prison. (DUF 17; CD 260 at ¶ 7; CD 260-1 at 2-4.) In an effort to save lives and increase safety, prison officials placed all Black and White inmates (and their cell partners) throughout the institution on modified program pending an investigation. (CD 260 at ¶ 7; CD 260-1 at 2-4.) Narrowing the Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 20 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB scope of the modified program to only the involved races is preferable to locking down all inmates in the affected area when the incident appears to be between specific racial groups because it allows inmates who are not at risk to continue programming. (CD 238 at ¶ 46.) The second modified program (#FSP-12-03-003) lasted two weeks and was in response to a violent riot involving 100 Black inmates on the recreational yard. (CD 260 at ¶ 11; CD 260-1 at 13-20.) Although this modified program initially affected all Black inmates, within twenty-four hours, it was narrowed to affect only the three involved disruptive groups: the Crips, the Bloods, and the Bay Area affiliates. (Id.) The inmates associated with the three specific race-based security threat groups were then released incrementally, by housing unit, to gauge whether further violence would ensue between the warring gangs if they were given the opportunity. (Id; see also CD 244 at ¶ 11.) Prison officials have a responsibility to ensure the safety and security of the institution. Bell v. Wolfish, 441 U.S. 520, 540 (1979) (citing Pell v. Procunier, 417 U.S. 817, 827 (1974)). Following these riots, it was crucial for staff to identify which inmates or disruptive groups were involved and whether future violence between the warring racial groups would continue if the modified programs were lifted. (CD 260 at ¶¶ 7, 11.) Both of these modified programs were implemented in the narrowest degree possible to re-establish prison security and to ensure the safety of inmates and staff. See Johnson, 543 U.S. at 505-07. For purposes of mootness, the relevant inquiry is whether the potential injury is too speculative in light of the present circumstances. Mitchell v. Dupnik, 75 F.3d 517, 527-28 (9th Cir. 1996); Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967); Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992). As demonstrated above, Mitchell has been subjected to two modified programs since January 2012 that impacted a particular racial group. But they did not violate Mitchell’s Equal Protection rights. Moreover, CDCR’s current policy explicitly builds in safeguards to protect inmates’ rights under the Equal Protection Clause. The policy states that officials “shall not target a specific racial or ethnic group unless it is necessary and narrowly tailored to further a compelling government interest, such as restoring security and order after an incident or protecting the health and safety of the inmates and staff.” (CD 238, Ex. A.) Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 21 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB By referring to lockdowns and modified programs that happened years ago, Plaintiffs are only painting a picture of the past. But a past injury “does nothing to establish a real and immediate threat that [a plaintiff] would again suffer similar injury in the future.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210-11 (1995). Because there is no reasonable expectation that Mitchell will be subjected to the same allegedly unconstitutional conditions again, his Equal Protection claim for injunctive relief is moot. V. DEFENDANTS TILTON, OWEN, HELLWIG, AND VANDERVILLE DID NOT “IMPLEMENT, RATIFY, AND APPROVE RACE-BASED AND EXCESSIVELY LENGTHY LOCKDOWNS.” In the Second Amended Complaint, Mitchell alleges that Defendants Tilton, Owen, Hellwig, and Vanderville “implemented, ratified and approved race-based and excessively lengthy lockdowns in violation [of his] Fourteenth Amendment right to Equal Protection of the Laws and Eighth Amendment Right to be free from cruel and unusual punishment.” (CD 84 at ¶ 89.) And Mitchell’s other causes of action are also based solely on his allegations that Defendants Tilton, Owen, Hellwig, and Vanderville were directly responsible for implementing the modified programs about which Mitchell complains. (CD 84 at ¶¶ 95, 100 .) Mitchell’s allegations are baseless. In their opposition, Plaintiffs improperly convert their original allegations into new assertions. For the first time, Plaintiffs now claim that Defendant Tilton, the former Secretary of CDCR, “is liable for overseeing implementation of an unconstitutional policy.” (CD 280 at 76:16-17.) Similarly, Plaintiffs now contend that Defendants Owen, Hellwig, and Vanderville are liable “regardless whether they had ultimate authority to implement or end lockdowns.” (Id. at 76:25-27.) The Court should disregard any new assertions not raised in Plaintiffs’ current complaint. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (disallowing new claims during summary judgment); Pickern v. Pier 1 Imports, Inc., 457 F.3d 963, 968-69 (9th Cir. 2006) (same); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1183, at 23 n. 9 (3d ed. 2004) (“An opposition to a summary judgment motion is not the place for a plaintiff to raise new claims.”). Mitchell’s argument against Defendant Tilton— as alleged in the Second Amended Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 22 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Complaint—rests solely on his supervisory status, which is insufficient to show the personal involvement for a 42 U.S.C. § 1983 claim, especially when the plaintiff seeks monetary relief. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Even if Defendant Tilton was responsible for “overseeing implementation” of CDCR’s lockdown and modified program policy, Plaintiffs have not demonstrated the causal link necessary between the supervisory defendant and the claimed violation: the allegedly unconstitutional implementation, ratification, and authorization of lockdowns and modified programs at High Desert State Prison in 2006 and 2007. In Mitchell’s opposition, he claims for the first time that Defendants Owen, Hellwig, and Vanderville “set acts into motion that they knew, or should have known, would have resulted in harm to Mr. Mitchell.” (CD 280 at 77:20-22.) Defendants did not address this allegation in their summary-judgment motion because Mitchell never asserted it in his Second Amended Complaint. Defendants did, however, demonstrate through declarations and deposition testimony that Defendants Owen, Hellwig, and Vanderville did not “implement,” “ratify,” or “approve” modified programs or lockdowns at High Desert State Prison in 2006 or 2007, as Plaintiffs alleged in the Second Amended Complaint. (CD 259 at ¶¶ 2-5; CD 264 at ¶¶ 2-5; CD 268 at ¶¶ 2-8.) Because Defendants Tilton, Owen, Hellwig, and Vanderville were not involved in the implementation, ratification, or authorization of the modified programs that form the basis of Mitchell’s complaint, they are entitled to summary judgment as a matter of law. VI. DEFENDANTS FOULK AND WRIGHT DID NOT “IMPLEMENT, RATIFY, AND APPROVE RACE-BASED AND EXCESSIVELY LENGTHY LOCKDOWNS.” According to Mitchell’s opposition, Defendants Foulk and/or Wright were responsible for: “planning, organizing, and directing program from inmates in Facility C;” “making sure lockdowns followed departmental procedures;” meeting with the warden to “assess the facility conditions and determine whether inmates can be safely returned to normal program;” making “recommendations for changes in programming;” preparing program-status reports; and even editing High Desert State Prison’s internal lockdown procedures. (CD 280 at 79-80.) Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 23 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Because these are not the same allegations raised in Mitchell’s complaint, the Court should disregard them. See Navajo Nation, 535 F.3d at 1080. In the Second Amended Complaint, Mitchell claims that Defendants Foulk and Wright “implemented, ratified and approved race- based and excessively lengthy lockdowns in violation [of his] Fourteenth Amendment right to Equal Protection of the Laws and Eighth Amendment Right to be free from cruel and unusual punishment.” (CD 84 at ¶ 89) (emphasis added). This simply is not true. While Defendants Foulk and Wright may have been involved in some aspects of program modification at High Desert State Prison in 2006 and 2007, Defendants have undeniably demonstrated through declarations and deposition testimony that Defendants Foulk and Wright did not have authority to implement, ratify, or approve lockdowns or modified programs in their roles as facility captains or associate warden. (CD 263 at ¶¶ 8, 13.) They are entitled to summary judgment. VII. DEFENDANTS DID NOT VIOLATE MITCHELL’S EIGHTH AMENDMENT RIGHTS. Defendants do not deny that Mitchell was placed on modified programs at various times during the relevant time period, from September 12, 2006 to December 5, 2007. The longest of these modified programs lasted less than four months. (CD 254 at 48-56; CD 263 at ¶¶ 15-16, 20-56; CD 263-1 at 6-28; CD 263-2 at 2-23; Corrected Ex. B (Foulk Decl).) In his opposition, Mitchell claims that he was deprived of any outdoor exercise for eight continuous months. (CD 280 at 51:18, 53:11, 56:21-22, 57:1, 57:14-17, 62:10.) To prove this, Mitchell relies only on his self-serving declaration. (CD 285 at ¶¶ 6-14.) He fails to provide a single program-status report or other official document to substantiate his assertion. This evidence, in and of itself, is insufficient to raise a triable issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). Moreover, any action taken by Defendants was not the product of any “deliberate indifference” towards Mitchell. In other words, Defendants did not deprive Mitchell of outdoor exercise with the deliberate indifference to his health or safety necessary to support an Eighth Amendment violation. /// Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 24 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB A. Mitchell Was Not Deprived of Outdoor Exercise for Eight Continuous Months. In a previous order, the Court limited Mitchell’s damages claims to modified programs and lockdowns that occurred between September 12, 2006 and December 5, 2007. (CD 107 at 9:20- 22.) Yet, Mitchell seems astounded that Defendants do not “even mention” an alleged modified program that lasted from March 21, 2006 to May 10, 2006. (CD 280 at 57, n.21.) Defendants did not describe or mention this modified program because it is outside the scope of this lawsuit and, therefore, should not be considered by the Court. Moreover, it is unclear why Plaintiffs included a two-page calendar dating back to March 2006 when the Court has already clarified the boundaries of Mitchell’s damages claim. (See CD 280 at 54-55.) Defendants have identified nine modified programs that may have affected Mitchell during the relevant time period. (CD 254 at 48-56; CD 263 at ¶¶ 15-16, 20-56; CD 263-1 at 6-28; CD 263-2 at 2-23; Corrected Ex. B (Foulk Decl).) Plaintiffs accuse Defendants of “try[ing] to cast their lockdowns as discrete, separate events that do not overlap when they have made different representations to the California Supreme Court.” (CD 280 at 60:4-6.) In an informal response to the California Supreme Court, the Attorney General’s Office represented that Mitchell was “on lockdown for various reasons from November 24, 2006 to April 24, 2007.” (CD 284-3 at 9.) This is not inconsistent with the representation Defendants make in their summary-judgment motion. (See CD 254 at 50-54.) Indeed, Defendants previously acknowledged that “what may have seemed like one continuous modified program affecting only the Black inmate population on Facility C was, in reality, a series of modified programs, investigations, and interviews conducted in an effort to protect all inmates and staff from recurring violent incidents and threats of serious harm.” (CD 254 at 53:26-27, 54:1-2; CD 263 at ¶ 40.) Admittedly, the November 24, 2006 modified program lifted on December 13, 2006—the same day the December 13, 2006 modified program was implemented. (CD 263 at ¶ 28; CD 284- 3 at 4.) And the December 13, 2006 modified program lifted on January 3, 2007—a day before the January 4, 2007 modified program was implemented. (CD 263 at ¶34; CD 263-1 at 22; CD 284-3 at 6.) Even assuming, arguendo, that Mitchell was on modified program continuously Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 25 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB from November 24, 2006 to April 25, 20071, this does not amount to eight consecutive months, as Mitchell alleges. As previously stated, Mitchell claims that he was on modified program for eight consecutive months, from August 30, 2006 until May 9, 2007. (CD 280 at 56:21-22, 57:1.) Apart from his self-serving declaration that contradicts his own prior testimony2, there is nothing to substantiate this assertion. Defendants have shown through declarations and official prison records that the September 13, 2006 modified program affected Mitchell for nine days: inmates were returned to normal program on September 21, 2006. (CD 263 at ¶¶ 20-21; CD 284-3 at 6.) Defendants have further demonstrated through declarations and official prison records that the October 5, 2006 modified program affected Mitchell until it lifted on November 21, 2006. (CD 263 at ¶¶ 23-26; CD 263-1 at 6-13; CD 284-3 at 3.) Accordingly, Mitchell was not on modified program from September 21, 2006 to October 5, 2006, or from November 21, 2006 to November 24, 2006. Mitchell’s declaration—in and of itself—is both inaccurate and insufficient to raise a triable issue of fact because: (1) it is uncorroborated by other testimony or other persuasive evidence; and (2) a reasonable jury could not return a verdict for Mitchell. See Anderson, 477 U.S. at 248-49; Villiarimo, 281 F.3d at 1061. In short, Mitchell was not on modified program for eight consecutive months, as he alleges in his opposition. B. Defendants Did Not Act With Deliberate Indifference. A successful Eighth Amendment challenge to conditions of confinement requires a showing of an objective component, concerning the seriousness of the deprivation, and a subjective component, concerning the culpable state of mind of prison officials. Hayes v. Garcia, 461 F. Supp. 2d 1198, 1205 (S.D. Cal. 2006). Mitchell claims that his Eighth Amendment rights were violated because he was denied 1 In In re Robert Mitchell, an earlier state-habeas action involving the same modified programs and lockdowns at High Desert State Prison in 2006 and 2007, Mitchell filed a declaration and a reply brief admitting that the January 4, 2007 modified program (#HDP-C-07- 003) lifted on April 25, 2007. (Defs.’ Req. Jud. Not. Exs. A & B.) 2 In In re Robert Mitchell, Mitchell claims he “remained on full lockdown for approximately 11 months, confined to his cell, and not permitted to receive fresh air, exercise or participate in programming and other activities.” (Defs.’ Req. Jud. Not. Ex. C.) Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 26 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB outdoor exercise for eight consecutive months. (CD 280 at 57:1-5.) As noted above, the longest modified program Mitchell was subjected to lasted less than four months. Even assuming Mitchell was continuously on modified program from November 24, 2006 to April 25, 2007, this denial of outdoor exercise was not the result of Defendants’ “deliberate indifference.” In Corona v. Knowles, the plaintiffs were on modified program with no access to the recreational yard for approximately five months, from May 31, 2006 to “late October” 2006. Corona v. Knowles, No. 1:08-cv-00237-LJO-BAM, 2012 WL 4051966, at *9 (E.D. Cal. Sept. 14, 2012). Southern Hispanic inmates were originally placed on modified program on May 31, 2006 following an assault on staff. Id. at *1. Five correctional officers were battered and their injuries ranged from “superficial redness to a dislocated right wrist.” Id. The Court described the subsequent chain of events as follows: Approximately one month later, prison officials began to gradually return Southern Hispanic inmates to normal programming. However, this process was disrupted when on July 31, 2006, a confidential informant advised prison staff that two metal sheets had been stolen; that inmates were fashioning weapons from the metal sheets; and that inmates were planning to attack prison staff with those weapons. Because the weapon stock was later discovered primarily in the mattresses of Southern Hispanic inmates, it was reasonable for prison officials to believe that Southern Hispanic inmates still posed a threat to staff safety. By August 21, 2006, prison officials were unable to substantiate the threats made against prison staff. Nevertheless, Southern Hispanic inmates continued to pose security and safety issues throughout August and September. The most notable of these events included an attack on prison staff by Southern Hispanic inmates in Building 3 and information provided by a confidential informant indicating that Southern Hispanic inmates intended to “rush” the program office once they were returned to normal programming. As a result, prison officials did not begin returning Southern Hispanic inmates to normal programming until late October. Id. at *9. The court determined that the duration (five months) of the modified programming was reasonable. The court acknowledged that “[w]hen viewed in isolation these later incidents do not appear to pose a particularly high threat to prison security. However, these incidents cannot be divorced from the context in which they took place.” Id. at *10. The longest single modified program Mitchell was subjected to lasted less than four months. Like the situation in Corona, safety concerns were first presented by the ruthless November 24, 2006 attack on two High Desert State Prison correctional officers. (DUF 81; CD 263 at ¶ 28; CD 263-1 at 15-17.) Approximately three weeks later, thirty Black inmates refused Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 27 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB staff orders to assume a prone position on the recreational yard, an area of the prison where staff safety is most at risk due to the fact that large groups of inmates are able to congregate and interact and staff to inmate ratios are very low. (CD 263 at ¶ 30; CD 263-1 at 19-22.) On January 4, 2007, an inmate battered a correctional officer as he casually made his way to the dining hall. (DUF 90; CD 263 at ¶ 36; CD 263-1 at 24-28.) Between January 6, 2007 and January 21, 2007, prison staff received seven “kites” (notes) alleging future attacks on staff. (CD 263 at ¶ 37(a).) On March 23, 2007, an attempted murder occurred on Facility C’s yard. (Id at ¶ 39.) And these are only some of the violent events that transpired during this time period. (See CD 263 at ¶¶ 15-56; CD 263-1; CD 263-2; Corrected Ex. B (Foulk Decl.).) The record shows that Defendants acted reasonably and “within the wide-ranging deference afforded to them.” See Corona, 2012 WL 4051966, at *9. Given the circumstances, it was reasonable for prison officials to believe that inmates posed a real threat to staff safety, especially during this period. Any restrictions on programming, including access to the yard, were instituted for the primary purpose of restoring institutional safety and security. (CD 263 at ¶¶ 6, 56.) They were never meant to be punitive or otherwise implemented in bad faith. (Id. at ¶ 6.) Defendants’ actions were simply not the product of any “deliberate indifference” towards Mitchell. Mitchell claims that Defendants failed to consider reasonable alternatives for providing him outdoor exercise. Specifically, Mitchell claims that Defendants should have rotated small groups of inmates onto the main prison yards or utilized the prison’s mini-concrete yards. (CD 280 at 67:17-24.) The problem with rotating small groups of inmates onto the main prison yard is that without assessing the risk, determining what areas of the prison may be affected, and conducting an investigation, prison staff cannot accurately identify which inmates are likely to be involved in the violent incidents and threats of violence. (CD 263 at ¶ 55.) The central concern for prison officials from September 12, 2006 to December 5, 2007 was staff safety. (See CD 263 at ¶¶ 20- 56; CD 263-1 at 6-28; CD 263-2 at 2-23; Corrected Ex. B (Foulk Decl).) The mini-concrete yards at High Desert State Prison were not utilized in large part due to the fact that there are no prison officials to supervise the yards. (CD 284-20 at 10.) In Corona, the court held that “[d]uring modified programming, the movement of inmates is typically done under escort of Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 28 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB correctional officers. If the mini-concrete yards are utilized, then correctional officers would presumably have to escort each inmate to the mini-concrete yards. This may actually increase staff exposure to inmates.” Corona, at *10, n.4. Allowing small groups of inmates to exercise on the mini-concrete yards does not present a reasonable alternative when there are significant concerns for staff safety. Finally, Mitchell’s allegation that Defendants Tilton, Felker, Foulk, Wright, Owen, Hellwig, and Vanderville were aware of his alleged medical need is unsubstantiated. Mitchell’s purported need for “ambulation and daily exercise outside of his cell” is not documented in his prison medical file, as he claims. (CD 280 at 64:11-12.) The medical chronos in Mitchell’s file show only that Mitchell walked with a cane and required a left ankle brace. (CD 284-8 at 2.) And according to a May 10, 2005 “Disability Placement Program Verification” form, Mitchell had a mobility impairment but could walk 100 yards without pause with or without an assistive device. (CD 284-9 at 2.) This form also documented Mitchell’s need for a cane and ankle brace. (CD 284-9 at 2.) Mitchell’s medical records also indicate that he received physical therapy consultations during times when he was on modified program. (CD 284-21 at 9-13.) The physical therapist provided Mitchell with a menu of foot exercises to select from; none of which involved walking and almost all of which could be done in his cell. (CD 284-21 at 9-13.) The “certain apparatus” Mitchell discusses in his opposition (CD 280 at 64:9-10) is nothing more than an average stair, “a little like a curb.” (CD 284-19 at 20-21; CD 284-21 at 11.) Mitchell acknowledges that the physical therapist only suggested that he do “some of these exercises.” (Decl. Sullivan at ¶ 2 and Ex. A [Mitchell Dep. Excerpts] at 78:14-20) (emphasis added). Mitchell claims to have notified Defendants Owen, Hellwig, and Vanderville of his purported medically-prescribed need for outdoor exercise during his initial classification meeting on March 23, 2006. (CD 280 at 64:11-19.) But according to the committee notes, Mitchell only communicated to the committee that he “should be on a 270 yard.” (CD 285-1 at 2.) During her deposition, Defendant Owen confirmed that Mitchell spoke only once during the initial classification committee hearing—to request placement on a 270-design yard. (Decl. Sullivan at ¶ 3 and Ex. B [Owen Dep. Excerpts] at 60:10-16, 61:13-14.) According to Defendant Hellwig, Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 29 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Mitchell never brought up mobility impairment or his need to walk around at the March 23, 2006 initial classification hearing. (Decl. Sullivan at ¶ 4 and Ex. C [Hellwig Dep. Excerpts] at 35:20- 25, 36:1.) Defendant Vanderville also testified that he was never aware that Mitchell needed medical care in the form of outdoor exercise. (CD 284-7 at 22.) In fact, when questioned about the issue regarding accommodation of Mitchell’s alleged medical needs during a modified program, Defendant Vanderville responded: “I don’t remember it because it never happened. The issue was never brought up to me. And if it had of (sic) been, I would have documented it.” (Id.) Mitchell further claims that his administrative grievance (CDCR form 602) put Defendants on notice of his alleged need to exercise outdoors during a lockdown or modified program. (CD 280 at 64:20-21.) However, Mitchell does not mention any medical issues in his administrative grievance. (CD 285-3 at 2-9.) Also unsubstantiated is Mitchell’s claim that he has “incurred nerve damage and been diagnosed with Morton’s Neuroma” “as a result of his inability to properly exercise during the lockdowns.” (CD 280 at 65:4-6.) But according to Plaintiffs’ own medical expert, Morton’s Neuroma has “no connection” to modified programs. (Decl. Sullivan at ¶ 5 and Ex. D [Stern Dep. Excerpts] at 108:16-25.) Defendants did not deprive Mitchell of outdoor exercise with the “deliberate indifference” to his health or safety necessary to support an Eighth Amendment violation. Accordingly, Defendants are entitled to summary judgment on Mitchell’s Eighth Amendment claim for damages. VIII. DEFENDANTS DID NOT VIOLATE MITCHELL’S RIGHTS UNDER THE EQUAL PROTECTION CLAUSE. In opposition to Defendants’ Equal Protection argument, Plaintiffs erroneously rely on Fisher v. University of Texas at Austin, ___ U.S. ___, 133 S. Ct. 2411 (2013), which addressed race-based decisions in higher education. (CD 280 at 46:1-14.) Fisher is inapt because life and death decisions made in response to prison violence cannot reasonably be compared to decisions intended to achieve diversity among the student body in college admissions procedures. Indeed, the Supreme Court instructs that equal protection challenges must be considered in their proper Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 30 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB context. Grutter v. Bollinger, 539 U.S. 306, 327 (2003) (“Context matters when reviewing race- based governmental action under the Equal Protection Clause”), and (citing Gomillion v. Lightfoot, 364 U.S. 339, 343–44 (1960) (admonishing that, “in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts”)). In fact, Defendants’ modified program policy is specifically designed to take context into account since no two incidents are alike. (See e.g., CD 238 at ¶¶ 25-29, Ex. A.) But Plaintiffs would have this Court engage in a broad and generalized assessment of CDCR’s modified programs, without regard to the variables and nuances of each particular incident. The Supreme Court also directs that context is critical to the application of the strict scrutiny test: “In Adarand Constructors, Inc. v. Peña, we made clear that strict scrutiny must take ‘relevant differences’ into account. 515 U.S., at 228, 115 S. Ct. 2097. Indeed, as we explained, that is its ‘fundamental purpose.’ Ibid. Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context.” Grutter v. Bollinger, 539 U.S. at 327-28 (internal quotations omitted). In prison-safety cases, as distinct from college-admissions cases, the Supreme Court holds that, “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Pell, 417 U.S. at 827; see also, Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005). Therefore, the strict scrutiny test must be applied in the context of specific modified programs, and deference must be given to Defendants’ expertise in matters of prison safety. Nor are Plaintiffs correct when they cite to the syllabus portion of the Fisher decision to support their argument that Defendants are required to demonstrate that they “considered all non- race-based alternatives and properly concluded that no less restrictive or race-neutral alternative would accomplish the objective.” (CD 280 at 46:5-9.) As the Fisher decision itself points out, Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 31 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB the syllabus portion of a reported decision “constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.” Fisher, 133 S. Ct 2412 n.*, citing United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337. Contrary to Plaintiffs’ argument, to the extent that Fisher applies in the prison context, that decision does not require that Defendants “actually consider[] all non-race-based alternatives.” Instead, Fisher specifically holds that “narrow tailoring does not require exhaustion of every conceivable race- neutral alternative.” Fisher, 133 S. Ct. at 2420 (quoting Grutter, 539 U.S. at 339–40.) Nevertheless, Defendants have provided evidence that, when reviewed in context, shows that all of the modified programs and lockdowns at issue were narrowly tailored to serve the state’s compelling interest in prison safety. Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008) (citing Cutter, 544 U.S. at 725, n.13). Evidence that Defendants’ actions were driven by a discriminatory purpose is central to an Equal Protection cause of action. Hartmann v. California Dept. of Corrections and Rehabilitation, 707 F.3d 1114, 1123 (9th Cir. 2013). The Supreme Court has held that summary- judgment is proper if the party opposing the motion “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Plaintiffs will carry the burden to establish discriminatory intent at trial. “On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party’s case.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323). In their opposition, Plaintiffs spend much time discussing different ways in which Defendants could have addressed the incidents of prison violence at issue in this case. But they fail entirely to offer any evidence to show that Defendants’ actions, whether flawed or not, were undertaken “with an intent or purpose to discriminate against the plaintiff based on membership within a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). It is not enough for Plaintiffs to show that Defendants’ actions had a racially disproportionate impact. Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 32 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Washington v. Davis, 426 U.S. at 239. Defendants are entitled to summary judgment because there is no evidence that Defendants’ actions were done with a discriminatory purpose. A. May and October 2007 Modified Programs. Plaintiffs assert that Defendants “omitted mention of at least two race-based lockdowns that they imposed on” Mitchell. (CD 280 at 47 n.14.) This is untrue. Both modified programs are discussed in Defendants’ moving papers. (CD 254 at 39:5-18, 41:5-24.) However, they were not addressed in the Equal Protection argument because both modified programs were imposed on all of the inmates in Facility C, not inmates of a particular racial group. B. September 13, 2006 Modified Program. Plaintiffs argue that the imposition of the September 13, 2006 modified program violated the Equal Protection Clause because evidence obtained during the investigation indicated that the tier kite that triggered the modified program contained false information. (CD 280 at 48:3-8.) The Equal Protection Clause prohibits actions undertaken for a discriminatory purpose. It does not prohibit actions taken to safeguard the lives of inmates or prison staff, even when those actions are mistaken or based on faulty information. “‘Discriminatory purpose’ . . . implies more than intent as a volition or intent as awareness of consequences. It implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.’” Lee, 205 F.3d at 687 (quoting Feeney, 442 U.S. at 279). Whether Defendants could have responded differently is irrelevant to an Equal Protection analysis, where as here, the undisputed evidence shows that Defendants selected a course of action because it would ensure institutional safety; not because it would have some adverse effect on Mitchell’s racial group. Plaintiffs have identified no evidence to show that Defendants imposed the September 13, 2006 modified program “because of its adverse effects on an identifiable group.” Defendants are entitled to summary-judgment because there is no evidence that the September 13, 2006 modified program was imposed for a discriminatory purpose in violation of the Equal Protection Clause. C. December 13, 2006 Modified Program. The December 13, 2006 modified program perfectly illustrates the reason that courts are Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 33 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB required to give deference to prison officials in matters of institutional safety and security. Pell, 417 U.S. at 827. The incident involved a large number of both affiliated and non-affiliated Black inmates, and lasted for several hours. (DUF 84; CD 263 at ¶¶ 30-33.) Defendants’ expertise, in the context of the specific circumstances of the incident, led them to believe that there may be a conspiracy among the Black inmates in Facility C to breach institutional security in order to attack staff. (CD 263 at ¶ 33.) As a result, the Black inmates in Facility C were placed on a modified program for approximately three weeks while an investigation was conducted. (Id.) Plaintiffs have offered no evidence that the modified program was imposed for a discriminatory purpose, rather than for the purpose of preserving institutional safety. In fact, the modified program would have been lifted more quickly but for the receipt of information that indicated further violence was being planned. (Id.) Plaintiffs have failed to support their Equal Protection cause of action by presenting evidence to indicate that Defendants’ actions were motivated by a discriminatory purpose. The Equal Protection Clause was not violated, and Defendants are entitled to summary-judgment. D. January 4, 2007 Modified Program. On January 4, 2007, a Black inmate attacked a staff member, and Black inmates in the dining hall began making comments that led staff to believe that they knew about the attack even though they were not in a position to have witnessed it. (CD 263 at ¶ 36; DUF 90.) Defendants’ experience and expertise suggested a conspiracy among the Black inmates, and a modified program was initiated while an investigation was conducted. (Id.) Within six days of the initial modified program, all of Facility C was placed on a modified program when a padlock went missing. (CD 263 at ¶ 37; DUF 91, 92.) During the investigation, staff received information from numerous sources about plans for widespread disruption and attacks on staff. (CD 263 at ¶¶ 38, 39.) When the investigation was completed, an incremental unlock was initiated for the affected inmate populations. (CD 263 at ¶ 38.) Even as this phased unlock was in effect, more outbreaks of violence and threats of violence transpired on Facility C. (CD 263 at ¶ 39.) On March 23, 2007, an attempted murder occurred on Facility C’s Exercise Yard 2. (Id.) On March Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 34 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB 27, 2007, the White inmate population on Facility C was placed on lockdown pending an investigation into a possible threat to staff by the White inmate population. (Id.) On April 18, 2007, an inmate informed staff of yet another conspiracy to assault staff by the Black inmate population on Facility C during the recreational yard activities on April 20, 2007. (Id.) Plaintiffs have presented no evidence to indicate that Defendants’ actions were motivated by a discriminatory purpose instead of by legitimate concerns for prison safety. Lee, 205 F.3d at 687; Pell, 417 U.S. at 827. In the context of the events occurring at that time, Defendants are entitled to deference for their decision to impose several modified programs to preserve institutional safety and protect lives. Race-based decisions made in response to the “necessities of prison security and discipline” do not violate the Fourteenth Amendment when they are narrowly tailored to legitimate prison goals. Cruz, 405 U.S. at 321; Richardson, 594 F.3d at 671- 72. Defendants’ motion for summary judgment should be granted. E. August 1, 2007 Modified Program. Plaintiffs attempt to mislead the Court regarding an inmate’s attack on acting Captain Vanderville by characterizing a Unit Classification Committee as a “confrontational setting.” (CD 280 at 50:20-21.) But there is nothing “confrontational” about a Unit Classification Committee; a fact which made the attack all the more alarming. On the same day, the Administrative Segregation Unit Institutional Classification Committee received a call from an inmate’s family member asking why the Black population was on lockdown, even though no lockdown or modified program was in place. (CD 263 at ¶ 47.) The unusual facts of the attack, together with the phone call, and the totality of the circumstances over the preceding months (which included threatened or actual attacks on staff by Black inmates), led officials to believe that the attack on acting Captain Vanderville was potentially part of a conspiracy among Black inmates to attack staff. (CD 263 at ¶ 49.) As a result, on August 1, 2007, all Black inmates in Facility C were placed on a modified program. (Id.) Plaintiffs have offered no evidence to indicate that Defendants’ actions were motivated by an intent or purpose to discriminate against Mitchell because of his race. Hartmann, 707 F.3d at 1123. Summary-judgment is proper because Plaintiffs have “fail[ed] to make a showing Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 35 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB sufficient to establish the existence of an element essential to [their] case, and on which [they] will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. IX. QUALIFIED IMMUNITY “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011). “When properly applied, it protects all but the plainly incompetent or those who knowingly violate the law.” Id. “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Id. at 2078. A. Defendants Are Entitled to Qualified Immunity on Mitchell’s Eighth Amendment Claim. As previously stated, Defendants did not act with deliberate indifference. Accordingly, their conduct could not have violated Mitchell’s Eighth Amendment rights and they are entitled to qualified immunity on this basis alone. Furthermore, the right at issue was not clearly established at the time. In Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010), the Ninth Circuit held that prison officials “are entitled to qualified immunity so long as a right to outdoor exercise in the midst of severe ongoing prison violence was not clearly established at the time defendants acted.” Norwood, 591 F.3d at 1068. There, plaintiff’s outdoor exercise was restricted during four separate extended lockdowns, ranging from two to four-and-a-half months each. Id. at 1065. Prison staff locked down the prison after serious assaults by Black inmates and Crip gang members on staff at California State Prison-Sacramento during a particularly violent period. Id. The plaintiff was not a gang member and did not play a role in any of the staff assaults. Id. Nonetheless, the Ninth Circuit concluded that the defendant-officials were entitled to qualified immunity because a reasonable officer could have believed that restricting the plaintiff’s outdoor exercise in light of ongoing serious inmate violence was consistent with the Eighth Amendment, as no authority clearly established otherwise. Id. at 1070. Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 36 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB A year after Norwood, the Ninth Circuit reached a similar conclusion in Noble v. Adams, 636 F.3d 525, 531 (9th Cir. 2011). Noble holds “that it was not clearly established in 2002—nor is it established yet—precisely how, according to the Constitution, or when a prison facility housing problem inmates must return to normal operations, including outdoor exercise, during and after a state of emergency called in response to a major riot.” Id. at 529 (emphasis added). Like the defendants in Norwood and Noble, Defendants Tilton, Felker, Wright, Vanderville, Foulk, Owen and Hellwig are entitled to qualified immunity because a reasonable officer could have believed that modified programs and lockdowns designed to ensure prison safety and security following attempted murders, assaults on prison staff, inmate assaults, mass disturbances, missing metal, and threats of continued violence were lawful at the time. This is especially true considering the legal framework at the time: • On March 30, 2006 (five and a half months before the first modified program at issue here), a California federal district court held that a nearly ten-month denial of outdoor exercise did not violate an inmate’s Eighth Amendment rights. Jones v. Garcia, 430 F. Supp. 2d 1095 (S.D. Cal. Mar. 30, 2006); • On September 28, 2006 (two weeks after the first modified program at issue here), a California federal district court held that a five-month denial of outdoor exercise did not violate an inmate’s Eighth Amendment rights. Hurd v. Garcia, 454 F. Supp. 2d 1032 (S.D. Cal. Sept. 28, 2006); and • On October 27, 2006 (less than six weeks after the first modified program at issue here), a California federal district court held that a nine-month denial of outdoor exercise did not violate an inmate’s Eighth Amendment rights. Hayes v. Garcia, 461 F. Supp. 2d 1198 (S.D. Cal. Oct. 27, 2006). In each of these cases, prison officials were faced with similar types of violent behavior as Defendants experienced on Facility C at High Desert State Prison: inmate-on-inmate violence, racial tensions, the discovery of inmate-manufactured weapons, and more. Jones, 461 F. Supp. 2d at 1097-99; Hurd, 454 F. Supp. 2d at 1042-45; Hayes, 461 F. Supp. 2d at 1201-03. And in each of these cases, the court held that suspension of outdoor exercise was a reasonable and necessary response to the violence. Id. The law was not clearly established in 2006 or 2007 concerning precisely how and when prison officials must return a facility full of violent inmates to normal operations, including outdoor exercise, after a major disturbance and during a period of escalating violence. Because Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 37 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Defendants acted reasonably, even if mistakenly, and because they did not knowingly violate the Constitution, this Court should grant them qualified immunity on Mitchell’s Eighth Amendment claim. B. Defendants are Entitled to Qualified Immunity on Mitchell’s Fourteenth Amendment Claim. As has been established above, Plaintiffs cannot satisfy the first requirement of Saucier because Defendants did not violate the Equal Protection Clause by acting with a discriminatory purpose. All of the modified programs were undertaken for the purpose of serving the state’s compelling interest in maintaining, preserving, and restoring institutional safety. Whether Defendants’ decisions were always correct is irrelevant because qualified immunity applies, and the suit for damages must be dismissed, even if the official’s action was mistaken, so long as it was objectively reasonable. Guerra v. Sutton, 783 F.2d 1371, 1374 (9th Cir. 1986). When reviewed in context, Defendants’ actions were objectively reasonable, and they are entitled to qualified immunity. Similarly, the evidence tips the scales in Defendants’ favor under Saucier’s second criteria. It would not be clear to a reasonable correctional official that imposing a modified program on September 13, 2006 while they investigated a threat to a staff member would violate Plaintiff’s rights. Likewise, it would not be clear to a reasonable correctional official that the December 13, 2006 modified program would violate Plaintiff’s rights given that it appeared to be the beginning of a widespread conspiracy to attack staff. Nor would the circumstances of the January 4, 2007 modified program have caused a reasonable correctional official to believe that Plaintiffs’ rights were violated in light of the initial attack on staff, and all of the ensuing intelligence suggesting that further attacks were planned. Finally, it would not have been clear to a reasonable correctional official that the August 1, 2007 modified program would have violated Plaintiff’s rights given the undisputed evidence that Defendants believed that the incidents that triggered the modified program were part of a conspiracy to attack staff. Defendants are entitled to qualified immunity because Plaintiff cannot establish the existence of a constitutional violation, and because reasonable correctional officials would not Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 38 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB have believed that their conduct was unlawful in the situation confronted by these Defendants. X. DEFENDANTS DID NOT ENGAGE IN CONDUCT THAT WAS “NEGLIGENT,” “RECKLESS,” “OUTRAGEOUS,” “ATROCIOUS,” OR “UTTERLY INTOLERABLE.” A. Defendants Never Intended to Cause Emotional Injury to Mitchell. Mitchell claims that Defendants Tilton, Felker, Wright, Vanderville, Foulk, Owen, and Hellwig “intentionally implemented race-based lockdowns” and that their conduct was “outrageous” and “made with reckless disregard of the probability that Mitchell would suffer emotional distress as a result.” (CD 84 at ¶ 95.) Defendants have already shown that Defendants Tilton, Wright, Vanderville, Foulk, Owen, and Hellwig did not implement lockdowns and modified programs. Defendants have also demonstrated that they never knew about Mitchell’s alleged medical condition requiring outdoor exercise. Besides, the evidence certainly does not suggest that Defendant Tilton (or any other prison official) acted intentionally, that he acted recklessly, or that his actions were otherwise so outrageous in character, and so extreme in degree, as to go “beyond all bounds of decency.” B. Witkin, 5 Summary of California Law: Torts § 404 (9th ed. 1988). Inaction by a defendant does not constitute “extreme and outrageous behavior” for purposes of intentional infliction of emotional distress unless the defendant intends to cause injury to the plaintiff through the inaction. Lucas v. City of Visalia, No. 1:09–CV–1015 AWI DLB, 2010 WL 1444667 at *8 (E.D. Cal. April 12, 2010). In Davidson v. City of Westminster, police officers staked out a Laundromat in an effort to potentially arrest a man suspected of stabbing three women. Davidson v. City of Westminster, 32 Cal.3d 197, 200 (1982). The officers observed a man entering the facility “who closely resembled” the suspect. At this time, the officers knew that the plaintiff was in the Laundromat. Unfortunately, the officers did not warn the plaintiff of the man’s presence and, eventually, the plaintiff was stabbed by the man. Although the court acknowledged that the officers’ plan to apprehend the attacker was not their “finest hour” and that they may have engaged in “poor police practices,” the court dismissed the plaintiff’s intentional infliction of emotional distress claim because she did not allege “that the officers acted (or failed to act) as they did for the purpose of causing emotional injury.” Id. at 210. The court held that even if the officers acted with Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 39 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB “reckless disregard of the potential harm”, as a matter of law, “the officers’ conduct did not rise to the level of outrageous conduct ‘so extreme as to exceed all bounds of that usually tolerated in a civilized community.’” Id. During the relevant time period (September 2006 to December 2007), Facility C at High Desert State Prison was an extremely dangerous place and institutional safety and security was touch and go, to say the least. (CD 263 at ¶¶ 40, 55; CD 263-1 at 6-28; CD 263-2 at 2-23; Corrected Ex. B (Foulk Decl).) Mitchell’s claim that Defendants’ conduct was “extreme” because they “lock[ed] down Mr. Mitchell on the basis of his race for more than eight months” (CD 280 at 85:20-22) is: (1) not accurate; and (2) purposefully fails to mention the numerous outbreaks of violence on Facility C at the time, including attempted murders, staff assaults, inmate assaults, mass disturbances, the discovery of inmate- manufactured weapons, and the discovery of missing metal (CD 263 at ¶¶ 15-56; CD 263-1; CD 263-2; Corrected Ex. B (Foulk Decl)). Courts have held that when prison official’s actions are motivated by concerns for safety and security, the Equal Protection Clause is not violated merely because those actions have a racially disproportionate impact. Washington v. Davis, 426 U.S. at 239. Moreover, prison officials have a right and a duty to take the steps necessary to re-establish order in the face of inmate violence. Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982). Mitchell was placed on modified program at High Desert State Prison in 2006 and 2007 to ensure his safety and the safety of other inmates and staff. (CD 263 at ¶ 56.) And while Mitchell may not necessarily have been suspected of “doing something wrong” (CD 280 at 84:20), this does not avoid the fact that his fellow inmates were all too involved in frequent and malicious acts of violence. The undisputed facts show that prison officials implemented the 2006 and 2007 modified programs at High Desert State Prison for the purpose of restoring institutional safety and security. They were never meant to be punitive or otherwise implemented in bad faith. (CD 263 at ¶ 6.) Based on the record, a “civilized community” could not find Defendants’ response to this violence “atrocious” or “utterly intolerable.” Alcorn v. Anbro Eng., Inc., 2 Cal.3d 493, 499 (1970). Indeed, the Restatement of Torts instructs that “[i]t has not been enough that the Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 40 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that this conduct has been characterized by ‘malice,’ or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort.” Restatement (Second) of Torts § 46, comment d. Accordingly, Mitchell’s claim for intentional infliction of emotional distress must fail. B. Defendants Did Not Act Negligently. 1. Mitchell Fails to State a Cause of Action Against Defendants Wright, Owen, and Hellwig. Mitchell’s complaint is silent as to any assertion that Defendants Wright, Owen, or Hellwig owed him a duty of care. (See CD 84 at ¶ 101.) Neither Defendants, nor the Court, should be required to read between the lines in order to ascertain which defendants are being sued for negligence and which are not. Mitchell inexcusably fails to set forth “facts sufficient to establish every element” of his negligence cause of action. Rakestraw v. Cal. Physicians’ Service, 81 Cal. App. 4th 39, 43 (2000). Accordingly, Mitchell cannot state a cause of action against Defendants Wright, Owen, and Hellwig for negligence.3 2. Defendants Tilton, Felker, Foulk, and Vanderville Did Not Breach A Duty of Care. Admittedly, under California law, an inmate who is solely dependent on his jailers, due to his incarceration, for things such as necessary medical care or physical safety may be owed a legal duty. See Lawson v. Superior Court 180 Cal.App.4th 1372, 1389-90 (2010) (duty owed to provide necessary medical care where inmate “solely dependent” on prison for care); Girarldo v. Dept. of Corrections and Rehabilitation 168 Cal.App.4th 231, 246-51 (2008) (duty owed to place transgender inmate in safe housing assignment to protect from assault by other inmates). That type of situation, however, is not presented here. In contrast, if prison officials had not imposed 3 In his opposition, Mitchell suggests that “the complaint can be easily corrected” and that the Court must give him an opportunity to amend. (CD 280 at 88, n.34.) This reasoning completely discounts Federal Rule of Civil Procedure 16(b)(4) which states that a pretrial scheduling order may be modified “only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The Court discussed this rule at length in its order granting Plaintiffs’ motion to file a second amended complaint. (CD 83.) Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 41 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB modified programs that separated racial groups or race-based gangs, they may have been found negligent for failing to ensure inmate safety. Mitchell makes the fleeting allegation that Defendants were negligent by “ implementing excessively lengthy and race-based lockdowns.” (CD 84 at ¶ 100.) As noted previously, Defendants Tilton, Vanderville, and Foulk, did not “implement” lockdowns and modified programs and, therefore, cannot have breached this duty that Mitchell describes. Moreover, the evidence does not show that Defendants knew about Mitchell’s alleged “need to exercise for his health.” (CD 280 at 89:6-8.) What the evidence does show is that Mitchell has always had the ability to walk and move in his cell and that he received all accommodations noted on his “Disability Placement Program Verification” form while at High Desert State Prison. (Decl. Sullivan at ¶ 2 and Ex. A [Mitchell Dep. Excerpts] at 18:6, 49:20-25.) Additionally, Mitchell’s medical records indicate that Mitchell received physical therapy consultations during times when he was on modified program. (CD 284-21 at 9-13.) The physical therapist provided Mitchell with a menu of foot exercises to select from; none of which involved walking and almost all of which could be done in his cell. (CD 284-21 at 9-13.) Even Mitchell has admitted that the physical therapist only asked him to do “some of these exercises.” (Decl. Sullivan at ¶ 2 and Ex. A [Mitchell Dep. Excerpts] at 78:14-20.) Not only has Mitchell failed to satisfy the heightened pleading requirement necessary to maintain a negligence cause of action against Defendants, he also fails to demonstrate that Defendants knew of and ignored his supposed need to “exercise for his health.” Defendants are entitled to summary judgment. 3. Mitchell Fails to Show Requisite Causation. ‘“[A]bstract negligence,’ without proof of a causal connection to the injury suffered, will not support a finding of liability.” Dixon v. City of Livermore, 127 Cal.App.4th 32, 42-43 (2005) (quoting Noble v. Los Angeles Dodgers, Inc., 168 Cal.App.3d 912, 918 (1985)). In an action for damages resulting from negligence, plaintiff is required to plead and prove a causal connection between the defendant’s actions and plaintiff’s alleged injury. Brown v. Critchfield, 100 Cal.App.3d 858, 866 (1980). And the proof of causation must be made by substantial evidence, Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 42 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB because “evidence which leaves the determination of these essential facts in the realm of mere speculation and conjecture is insufficient.” Leslie G. v. Perry & Associates, 43 Cal.App.4th 472, 484 (1996). Mitchell claims that “Defendants’ actions caused [him] to suffer physical and emotional injury.” (CD 84 at ¶ 103.) Defendants are entitled to judgment because Mitchell has not produced competent evidence proving that Defendants’ actions or inactions were either the actual or the proximate cause of his physical and emotional injuries. In fact, as previously noted, Plaintiffs’ own medical expert testified that Morton’s Neuroma has “no connection” to modified programs. (Decl. Sullivan at ¶ 5 and Ex. D [Stern Dep. Excerpts] at 108:16-25.) Defendants are entitled to judgment as a matter of law because Mitchell has not and cannot establish a causal connection between Defendants’ conduct, and the physical and emotional injuries he claims to have suffered as a result of the High Desert State Prison modified programs. XI. DEFENDANTS FELKER, WRIGHT AND FOULK ARE ENTITLED TO DISCRETIONARY ACT IMMUNITY BECAUSE THEY ENGAGE IN THE CONSCIOUS BALANCING OF RISKS AND ADVANTAGES WHEN MAKING DECISIONS REGARDING MODIFIED PROGRAMS AND LOCKDOWNS. Plaintiffs argue that the Court cannot consider Defendants’ claim of discretionary act immunity in this motion for summary judgment because it previously held that determination of discretionary act immunity involves “questions of fact that cannot be properly resolved on a motion to dismiss.” (CD 280 89:26-90:10.) This is exactly what makes determination of discretionary act immunity appropriate in connection with Defendants’ motion for summary judgment. The Law of the Case Doctrine applies after a court decides a rule of law. Arizona v. California, 460 U.S. 605, 618 (1983). In its order on Defendants’ motion to dismiss, this Court specifically found that it could not decide the question of discretionary act immunity. (ECF 107, 114.) As a result, the Law of the Case Doctrine does not apply to Defendants’ renewed assertion of discretionary act immunity. Moreover, as the Supreme Court pointed out: “Under law of the case doctrine, as now most commonly understood, it is not improper for a court to depart from a prior holding if convinced that it is clearly erroneous and would work a manifest injustice.” Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 43 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Arizona, 460 U.S. at 619 (citing, White v. Murtha, 377 F.2d 428, 431–432 (5th Cir. 1967)). So even if the Court had decided the question of discretionary act immunity in connection with Defendants’ motion to dismiss, it is not precluded from reconsidering the matter in connection with Defendants’ motion for summary judgment. As this Court previously held, “[i]mmunity applies only to ‘deliberate and considered policy decisions, in which a conscious balancing of risks and advantages . . . took place.’” Mitchell v. Felker, No. 2:08-cv-1196 TLN EFB P, 2012 WL 2521827 at *11 (E.D. Cal., June 28, 2012) (quoting Caldwell v. Montoya, 10 Cal.4th 972, 981, (1995)). Like a decision to call in the National Guard to quell a civil disturbance (Susman v. City of Los Angeles, 269 Cal.App.2d 803 (1969)), there can be no doubt that discretionary immunity applies to the conscious balancing of risks and advantages that Defendants Felker, Wright, and Foulk engage in when managing prison violence. As a prison warden, Defendant Felker’s decision to impose or terminate a modified program in response to violent incidents and unrest among inmates is a discretionary act, not ministerial. In fact, the Ninth Circuit has described such a decision as: (1) “delicate,” (2) requiring expertise in prison administration, and (3) requiring a careful balance of the obligation to provide for prisoner and staff safety against prisoners’ rights. Noble v. Adams, 646 F.3d 1138, 1143-44 (9th Cir. 2011); Norwood v. Vance, 591 F.3d 1062, 1066, 1069-70 (9th Cir. 2010). Accordingly, Defendant Felker is entitled to immunity under Government Code § 820.2. Even though Defendants Wright and Foulk did not have decision-making authority to make adjustments to or terminate the lockdowns or modified programs (Decl. Foulk at ¶ 8), they are nonetheless entitled to discretionary act immunity. As Facility Captains and Associate Wardens, they participated in the decision-making process and made recommendations for changes in programming based on relevant intelligence collected during the course of the investigation. (Id.) When making a recommendation to the prison’s warden, Facility Captains and Associate Wardens exercise tremendous discretion to ensure the safety and security of the prison, its staff, and inmates. These recommendations are based on experience and require consideration of a number of complicated factors. Noble, 646 F.3d at 1143-44; Norwood, 591 F.3d at 1066, 1069- Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 44 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB 70. Because any recommendations made by Defendants Wright and Foulk required “personal deliberation, decision, and judgment,” they are also entitled to discretionary act immunity under Government Code § 820.2. See McCorkle v. City of Los Angeles, 70 Cal. 2d 252, 260-61 (1969) (quoting Morgan v. County of Yuba, 230 Cal. App. 2d 938, 942-43 (1964)). CONCLUSION Given that none of the Plaintiffs face a threat of immediate and irreparable harm, their claims for injunctive relief are moot. Furthermore, Defendants Tilton, Wright, Foulk, Owen, Hellwig, Vanderville cannot be held liable for damages because they did not implement, ratify, or approve “race-based and excessively lengthy lockdowns,” as Mitchell alleges in his second amended complaint. And an opposition to a summary-judgment motion is not the place for him to raise new claims against these Defendants. Defendants are entitled to summary judgment as a matter of law with regard to Mitchell’s Eighth and Fourteenth Amendment claims because they did not act with deliberate indifference and the modified programs Mitchell experienced were narrowly tailored to further institutional safety and security. Alternatively, Defendants are entitled to qualified immunity because the law was anything but clearly established at the time. /// /// /// /// /// /// /// /// /// /// /// /// Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 45 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37 Defs.’ Reply in Support of Mot. for Summ. J R. Mitchell v. Cate, et. al. Case No. 2:08-CV-01196-TLN-EFB Finally, Defendants are entitled to judgment in their favor with regard to Mitchell’s state- law claims for the following reasons: (1) Mitchell fails to claim that Defendants Wright, Owen, or Hellwig owed him a duty of care; (2) none of the Defendants breached a duty of care to Mitchell; and (3) Defendants’ response to the numerous outbreaks of violence on Facility C does not go “beyond all bounds of decency.” For these reasons, Defendants are entitled to summary judgment as a matter of law. Dated: August 21, 2013 Respectfully Submitted, KAMALA D. HARRIS Attorney General of California DAMON G. MCCLAIN Supervising Deputy Attorney General /s/ Erin Sullivan ERIN SULLIVAN Deputy Attorney General Attorneys for Defendants M. Cate, S. Kernan, T. McDonald, G. Giurbino, J. Tilton, T. Felker, M. Wright, F. Foulk, D. Vanderville, J. Owen, and D. Hellwig SA2011300596 20722588.doc Case 2:08-cv-01196-TLN-EFB Document 297 Filed 08/21/13 Page 46 of 46