1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD B. SPENCER, Case No. 1:20-cv-00909-JLT-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

GRANT DEFENDANT’S MOTION FOR

13 v. SUMMARY JUDGMENT1 14 J. JASSO,

FOURTEEN-DAY OBJECTION PERIOD

15 Defendant. (Doc. No. 31) 16 17 This case was reassigned to the undersigned on July 3, 2025. (Doc. No. 62). Pending 18 before the Court is Defendant’s Motion for Summary Judgment filed on November 27, 2023. 19 (Doc. No. 31, “MSJ”). Finding no material facts in dispute, the undersigned recommends that the 20 district court grant Defendant’s MSJ on Plaintiff’s First and Fourteenth Amendment claims for 21 the reasons set forth below. 22 I. BACKGROUND 23 A. Procedural History and Allegations in Operative Complaint 24 On June 30, 2020, Plaintiff Edward Spencer initiated this action stemming from events 25 that occurred while he was confined at the California Department of Corrections and 26 Rehabilitation (“CDCR”) Substance Abuse Treatment Facility and State Prison (“SATF”). (Doc. 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2025). 1 No. 1). On October 18, 2021, Plaintiff filed his First Amended Complaint. (Doc. No. 12,

2 “FAC”). On January 9, 2023, the previously assigned magistrate judge recommended that this

3 action proceed solely against Defendant Jasso on: (1) Plaintiff’s First Amendment retaliation

4 claim, (2) Plaintiff’s First Amendment withholding of mail claim; and (3) Plaintiff’s Fourteenth

5 Amendment due process claim related to his withholding of mail without notice. (Doc. No. 15).

6 On January 17, 2023, Plaintiff filed a notice electing to proceed solely on the three above claims

7 found cognizable. (Doc. No. 16). On February 2, 2023, the District Judge adopted the

8 magistrate’s findings and recommendations in full. (Doc. No. 17).

9 In his FAC, Plaintiff alleges that while housed at SATF, Defendant J. Jasso, a mailroom

10 employee at SATF, violated his constitutional rights by retaliating against him for filing 11 grievances and by withholding his mail. (Doc. 12 at 7–9, 13–15). Plaintiff further claims Jasso 12 violated his due process rights because the withholding of his mail violated Title 15 § 3133(a)(1), 13 which requires delivery of First-Class mail within seven calendar days of receipt. (Id. at 10–12). 14 In support of his claims, Plaintiff states he submitted an inmate grievance against 15 mailroom staff and custody officials on March 25, 2019, and afterwards, Defendant Jasso began 16 delaying his incoming and outgoing mail without justification. (Id. at 8–9, 16). Between 17 September 4, 2019, and March 27, 2020, Plaintiff identified 19 instances of mail being withheld 18 for periods ranging from 16 to 127 days, in violation of Title 15. (Id. at 10–12). Plaintiff alleged 19 that 15 of the delayed envelopes bore Jasso’s signature but lacked a received date, evidencing 20 Jasso’s direct involvement. (Id. at 10–11). Plaintiff also claimed that the delay of his mail by 21 Jasso was retaliatory, citing statements criticizing Plaintiff for filing appeals that inmate Robert 22 Miller overheard from Library Technical Assistant, L. Lima. (Id. at 8, 35–36). As relief, Plaintiff 23 sought compensatory and punitive damages. (Id. at 16). 24 B. The Operative Pleadings 25 On November 27, 2023, Defendant filed her MSJ. (Doc. No. 31). Supporting her MSJ, 26 Defendant submits: (1) a memorandum of points and authorities (Doc. No. 31-2); (2) a statement 27 of 36 undisputed material facts (Doc No. 31-1); (3) the declaration of J. Jasso (Doc. No. 31-3); (4) 28 the declaration of L. Drapper (Doc. No. 31-4); (5) the declaration of K. Huffman (Doc. No. 31-5); 1 and (6) the declaration of Alexandria Faura (Doc. No. 31-6).

2 Defendant argues Plaintiff cannot establish a basis for a claim under § 1983 against

3 Defendant Jasso because there is no evidence that Defendant Jasso took any affirmative acts or

4 failed to act in a way that she was legally required to in connection with Plaintiff’s mail. First,

5 Defendant points out that Plaintiff’s First Amendment mail claim is supported only by evidence

6 that Defendant Jasso’s signature was on three envelopes of mail that were delayed, but ultimately

7 received by Plaintiff. Second, Defendant contends that Plaintiff cannot establish that any of

8 Defendant Jasso’s actions were taken in retaliation because: (1) there is no evidence to suggest

9 that Defendant had prior knowledge of Plaintiff’s grievances; and (2) Plaintiff’s grievances

10 relating to the delay of his mail were submitted after the date Plaintiff alleges Defendant began 11 withholding his mail. Thus, Plaintiff’s grievances could not serve as the protected activity that 12 allegedly precipitated the delay of his mail. Finally, as to his due process claim, Plaintiff cannot 13 establish that his mail was withheld pursuant to any policy or course of conduct by Defendant 14 Jasso. Nor is there any evidence to suggest the delay in Plaintiff’s mail was caused by any 15 actions taken by Defendant Jasso, intentional or unintentional. Without any evidence to suggest 16 Plaintiff’s mail was withheld as opposed to delayed by Defendant Jasso or any other prison 17 official, Plaintiff cannot demonstrate that he was entitled to receive notice. Finally, Defendant 18 Jasso asserts an entitlement to qualified immunity. 19 On December 29, 2023, Plaintiff filed his Opposition. (Doc. No. 36). In support, Plaintiff 20 submits: (1) a memorandum of points and authorities (id. at 2–6); (2) a response to Defendant’s 21 undisputed material facts (id. at 7–8); (3) a statement of undisputed material facts (id. at 9–10); 22 (4) Plaintiff’s own declaration (id. at 11-12); (5) the declaration of inmate Robert Miller (id. at 23 21-22); and (6) grievance appeals, letters, and an excerpt of the California Code of Regulations, 24 Title 15. (id. at 14-41). Plaintiff admits to all but seven of Defendant’s 36 undisputed facts. In 25 support of his retaliation claim, Plaintiff contends he first complained about the delay in his mail 26 earlier than Defendant claims and submits a July 28, 2019 grievance (Appeal SATF-F-19-06288) 27 he lodged against non-party Lt. D. Lopez as evidence (Doc. No. 36 at 15) as well as the 28 declaration of inmate Miller who attests to overhearing a statement attributed to Jasso from 1 another correctional official, L. Lima (Doc. No. 36 at 21-22).

2 Thereafter, Defendant filed a Reply in Support of her MSJ. (Doc. No. 43). Defendant

3 submits the declaration of counsel along with copies of Plaintiff’s responses to discovery (Doc.

4 No. 43-1), and Defendant’s response and/or objections to certain evidence submitted by Plaintiff

5 in his opposition. (Doc. No. 43-2). Defendant notes that Plaintiff does not cite to any evidence as

6 to the facts he disputes, other than to one of the contested facts regarding his retaliation claim. As

7 to the newly identified grievance Plaintiff lodged against non-defendant Lt. Lopez, in addition to

8 it contradicting Plaintiff’s sworn responses to discovery, Defendant argues that there is no

9 evidence that Jasso was aware of this earlier grievance against Lt. Lopez. Finally, Defendant

10 objects to inmate Miller’s statements attributed to Jasso by another correctional official as 11 inadmissible hearsay. 12 II. Summary Judgment Standard 13 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in 14 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith 15 Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate 16 when there is “no genuine dispute as to any material fact and the movant is entitled to judgment 17 as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment should be entered “after adequate 18 time for discovery and upon motion, against a party who fails to make a showing sufficient to 19 establish the existence of an element essential to that party’s case, and on which that party will 20 bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 21 moving party bears the “initial responsibility” of demonstrating the absence of a genuine issue of 22 material fact. Id. at 323. An issue of material fact is genuine only if there is sufficient evidence 23 for a reasonable fact finder to find for the non-moving party, while a fact is material if it “might 24 affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 25 U.S. 242, 248 (1986). 26 If the moving party meets its initial burden, the burden then shifts to the opposing party 27 to present specific facts that show there to be a genuine issue of a material fact. See Fed R. Civ. 28 P. 56(e); Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that 1 there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 587. The

2 party is required to tender evidence of specific facts in the form of affidavits, and/or admissible

3 discovery material, in support of its contention that a factual dispute exists. Fed. R. Civ. P.

4 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party is not required to establish a

5 material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be

6 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”

7 T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir.

8 1987). However, “failure of proof concerning an essential element of the nonmoving party’s

9 case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.

10 The court must apply standards consistent with Rule 56 to determine whether the 11 moving party demonstrated there is no genuine issue of material fact and showed judgment to be 12 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 13 “[A] court ruling on a motion for summary judgment may not engage in credibility 14 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 15 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 16 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving 17 party. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). A mere scintilla 18 of evidence is not sufficient to establish a genuine dispute to defeat an otherwise properly 19 supported summary judgment motion. Anderson., 477 U.S. at 252. However, where “opposing 20 parties tell two different stories, one of which is blatantly contradicted by the record” courts 21 “should not adopt that version of the facts for purposes of ruling on a motion for summary 22 judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). 23 Plaintiff’s verified complaint may serve as an affidavit in opposition to summary 24 judgment if based on personal knowledge and specific facts admissible in evidence. Lopez v. 25 Smith, 203 F.3d 1122, 1132 n. 14 (9th Cir. 2000) (en banc). However, a complaint’s conclusory 26 allegations unsupported by specific facts, will not be sufficient to avoid summary judgment. 27 Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 922 (9th Cir. 2001). And, 28 where a plaintiff fails to properly challenge the facts asserted by the defendant, the plaintiff may 1 be deemed to have admitted the validity of those facts. See Fed. R. Civ. P. 56(e)(2).

2 The undersigned has carefully reviewed and considered all arguments, points and

3 authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any,

4 objections, and other papers filed by the parties. The omission of an argument, document, paper,

5 or objection is not to be construed that the undersigned did not consider the argument, document,

6 paper, or objection. Instead, the undersigned thoroughly reviewed and considered the evidence it

7 deemed admissible, material, and appropriate for purposes of issuing these Findings and

8 Recommendations.

9 III. UNDISPUTED MATERIAL FACTS

10 Defendant provides a statement identifying 37 undisputed material facts. (Doc. No. 31-1 11 at 1-2). Each listed fact cites to sworn declarations, deposition testimony, and the operative 12 complaint. (See generally id.). In his Opposition, Plaintiff includes a response to Defendant’s 13 statement of undisputed facts and his own statement of undisputed facts. (Doc. No. 36 at 7–10). 14 Plaintiff contests seven of Defendant’s material facts listed in her statement of undisputed 15 material facts. For six of the contested facts, Plaintiff does not provide supporting evidence or an 16 explanation. (See id. at 7–8). 17 Where Plaintiff’s response to Defendant’s statement of undisputed facts or his statement 18 of undisputed facts is based solely on conclusory statements or the FAC, and lacks detailed facts, 19 while Defendant provides detailed facts or documentary evidence in support, the Court generally 20 does not find Plaintiff’s objections or statements of fact sufficient to establish a genuine dispute 21 of material fact. See Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc); see also 22 FTC v. Publishing Clearing House, 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self- 23 serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a 24 genuine issue of material fact.”). Having reviewed the record, the undersigned finds the 25 following facts to be material and undisputed, unless otherwise noted. 26 • At all relevant times, Plaintiff was in the custody of the California Department of 27 Corrections and Rehabilitation (“CDCR”) at Substance Abuse Treatment Facility and 28 State Prison (“SATF”). (Doc. No. 31-6 at 9-31 (“Spencer Depo. Tr.”) at 15:11-16:01). 1 • At all relevant times, Defendant Jasso was employed by CDCR as an Office Assistant at

2 the contraband desk in the mailroom at SATF. (Doc. No. 31-3 at 1 ¶ 2).

3 • In October 2019, Plaintiff noticed his mail began being delayed for an inordinate amount

4 of time. (Doc. No. 12 at 9; Spencer Depo. Tr. at 32:25-33:06).

5 • Plaintiff claims that his mail was withheld because he had filed an administrative

6 grievance against the mailroom staff. (Doc. No. 12 at 8–9; Spencer Depo. Tr. at 23:7-19).

7 • Plaintiff filed grievance log number SATF-G-19-7306 regarding the delay in his mail on

8 November 27, 2019. (Doc. No. 31-6 at 44-57; Spencer Depo. Tr. at 33:7-17).

9 • Plaintiff filed grievance log number SATF-G-20-01007 regarding the delay in his mail.

10 This grievance was received by the Office of Appeals at SATF on March 16, 2020. (Doc. 11 No. 31-6 at 38-43; Spencer Depo. Tr. at 25:5-8). 12 • Plaintiff testified that he believed Defendant Jasso was responsible for withholding his 13 mail because her initials appeared on the envelopes of some of his delayed mail. (Spencer 14 Depo. Tr. at 44:13-17). 15 • Plaintiff admitted that he did not know if his mail was withheld, but that it was delayed in 16 arriving to him. (Spencer Depo. Tr. at 26:3-5). 17 • Plaintiff testified in his deposition that he did not know the name of any other mailroom 18 employee except for Defendant Jasso. (Spencer Depo. Tr. at 41:14-42:12). 19 • Plaintiff testified in his deposition that he did not know what Defendant Jasso’s position 20 was at SATF or whether she still worked at SATF. (Spencer Depo. Tr. at 37:03-38:09). 21 • Plaintiff testified in his deposition that Defendant Jasso’s signature did not appear on 22 every piece of mail that was delayed in its delivery. (Spencer Depo. Tr. at 43:24-44:24). 23 • There are seven envelopes that were allegedly delayed in their delivery to Plaintiff. (Doc. 24 No. 31-6 at 4-7). 25 • Plaintiff eventually received all seven envelopes. (Doc. No. 31-6 at 4-7; Doc. No. 36 at 26 11). 27 • Of the seven envelopes, five of the envelopes have a substantial difference between the 28 postmark date and the date that Plaintiff alleges he received the envelopes. (Doc. No. 31- 1 6 at 4-7; Spencer Depo Tr. at 19:11-20).

2 • Defendant Jasso’s initials did not appear on every piece of delayed mail. (Doc. No. 31-6

3 at 4-7; Spencer Depo. Tr. at 43:24-44:3).

4 • Plaintiff testified in his deposition that “a lot of envelopes” were delayed that he “didn’t

5 save because it didn’t have [any] signature.” (Spencer Depo. Tr. at 44:19-21).

6 • Plaintiff testified in his deposition that he had “a lot of envelopes” that did not have a

7 signature that were “three, four, five months late.” (Spencer Depo. Tr. at 44:22-24).

8 • Defendant Jasso’s initials appear on correspondence addressed to Plaintiff from another

9 inmate in the custody of CDCR. (Doc. No. 31-6 at 4-7; Doc. No. 31-3 at 2-3 ¶¶ 6, 13).

10 • Defendant Jasso initialed the front of Plaintiff’s envelopes because her position required 11 her to verify that Plaintiff and the inmate who sent the letter had approval to correspond 12 with each other. (Doc. No. 31-3 at 3 ¶ 13). 13 • Plaintiff alleges Defendant Jasso violated CDCR regulations2 for allegedly failing to 14 notify him that his mail was being withheld. (Doc. No. 12 at 9; Spencer Depo Tr. at 30:5- 15 10). 16 • Defendant Jasso denies withholding any of Plaintiff’s mail, during the relevant period. 17 (Doc. No. 31-3 at 2 ¶ 8). 18 • Defendant Jasso was not instructed to withhold any of Plaintiff’s mail, during the relevant 19 period. (Doc. No. 31-3 at 2 ¶ 9). 20 • Defendant Jasso denies having knowledge that Plaintiff’s mail was withheld. (Doc. No. 21 31-3 at 3 ¶ 12). 22 • Defendant Jasso denies having knowledge that Plaintiff’s mail was delayed. (Doc. No. 23 31-3 at 2-3 ¶¶ 10, 12). 24 • Prior to October 2019, Defendant Jasso had no knowledge of Plaintiff’s grievance history 25 related to the mailroom. (Doc. No. 31-3 at 2 ¶ 11). 26 • Defendant Jasso denies taking any retaliatory actions towards Plaintiff as a basis for 27 2 Specifically, Plaintiff cites to tit. 15 CCR §§ 3131 and 3133. These sections address general mail 28 procedures within CDCR. 1 performing her duties or during the performance of her duties at the contraband desk.

2 (Doc. No. 31-3 at 2 ¶ 11).

3 • As part of her duties at the contraband desk, Defendant Jasso handled inmate-to-inmate

4 correspondence. (Doc. No. 31-3 at 1-2 ¶ 3; Doc. No. 31-4 at 2-3 ¶¶ 7, 9).

5 • When other mailroom staff determined that a piece of incoming mail was inmate-to-

6 inmate correspondence, it was given to Defendant Jasso to verify that the respective

7 inmates had approval to correspond with each other. (Doc. No. 31-3 at 1-2 ¶¶ 3, 5; Doc.

8 No. 31-4 at 3 ¶ 10).

9 • If Defendant Jasso verified that both inmates had approval to correspond with each other,

10 she initialed the envelope and returned the envelope to the mailroom staff, to signal that 11 the correspondence approval had been checked and verified. (Doc. No. 31-3 at 1-3 ¶¶ 3, 12 5, 13; Doc. No. 31-4 at 2-3 ¶ 10). 13 • Incoming mail is delivered to SATF by the United States Postal Service employees after 14 obtaining the mail from the post office in the city of Corcoran, California. (Doc. No. 31-5 15 at 2 ¶ 3; Doc. No. 31-4 at 2 ¶ 4). 16 • When the incoming mail arrives at SATF it is brought to the mailroom to be processed 17 and sorted. (Doc. No. 31-5 at ¶ 4; Doc. No. 31-4 at 2 ¶ 5). 18 • Once the incoming mail arrives at the mailroom, it is initially sorted by housing facility. 19 (Doc. No. 31-5 at 2 ¶ 5; Doc. No. 31-4 at 2 ¶ 5). 20 • There is a mailroom employee assigned to each housing facility at SATF, who is 21 responsible for opening and processing the incoming mail for that specific housing 22 facility. (Doc. No. 31-5 at 2 ¶ 5; Doc. No. 31-4 at 2 ¶¶ 5, 6). 23 • Once the mailroom employee finishes sorting and processing the incoming mail for the 24 assigned housing facility, the mail is placed in mailbag for that specified housing facility. 25 (Doc. No. 31-5 at 2 ¶ 5; Doc. No. 31-4 at 2 ¶ 8). 26 • The mailbag is taken to the Complex Control for that specific housing facility where the 27 mail is sorted by housing unit by correctional officers. (Doc. No. 31-5 at 2 ¶ 6; Doc. No. 28 31-4 at 2 ¶ 8). 1 • After the incoming mail is sorted by housing unit, the Third Watch housing unit officers

2 pick up the mail for their respective housing unit to distribute to the inmates. (Doc. No.

3 31-5 at 2 ¶ 7; Doc. No. 31-4 at 2 ¶ 8).

4 IV. APPLICABLE LAW AND ANALYSIS

5 A. First Amendment Mail

6 Prisoners have a First Amendment right to send and receive mail. Witherow v. Paff, 52

7 F.3d 264, 265 (9th Cir. 1995). A prison may nonetheless regulate mail in ways that impinge on

8 that right if such regulation is reasonably related to legitimate penological interests, such as

9 safety, order, and rehabilitation. Id. For example, prison officials may examine an inmate’s mail

10 without infringing his rights, United States v. Wilson, 447 F.2d 1, 8 n. 4 (9th Cir. 1971), or inspect 11 non-legal mail for contraband outside the inmate’s presence. Witherow, 52 F.3d at 265–66 12 (upholding inspection of outgoing mail). And binding precedent holds that “negligently 13 mishandled or misdirected [nonconfidential] mail . . . is not actionable under section 1983.” 14 Rhinehart v. Gomez, 205 F.3d 1352 (9th Cir. 1999); see also Crofton v. Roe, 170 F.3d 957, 961 15 (9th Cir. 1999) as amended (May 5, 1999) (“a temporary delay in the delivery of [nonconfidential 16 mailings], resulting from the prison official’s security inspection, does not violate his First 17 Amendment rights”); Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (“mere negligence on 18 the part of prison officials is not actionable as a due process violation under § 1983”). In contrast, 19 the “deliberate delay of legal mail may violate a prisoner’s first amendment and due process 20 rights,” if the plaintiff can “show that he was injured by the denial of access.” Reynolds v. Potts, 21 8 F.3d 29 (9th Cir. 1993) (emphasis added). 22 Jasso worked the contraband desk and received inmate-to-inmate correspondence from 23 other mailroom staff who opened and inspected the mail. (Doc. No. 31-1, ¶ 5). After she verified 24 an inmate had approval to correspond with another inmate, she would initial the front of the 25 envelope to indicate “the inmates had approval to correspond with each other” and then she 26 would “promptly return the envelope back to the mailroom staff responsible for the respective 27 housing facility.” (Id., ¶¶ 6,7). The envelopes that Jasso signed were letters sent to Plaintiff by 28 other inmates from other institutions. (Id., ¶ 13). Her signature on the envelopes indicates [she] 1 verified that both Plaintiff and the inmate who sent the letter had approval to correspond with

2 each other.” (Id.). Jasso attaches a true and correct copy of the CDCR 1074 approval forms

3 related to the respective envelopes that reflect Plaintiffs’ approval to correspond with certain

4 inmates. (Id., ¶ 13, Exhibit A). After signing the envelopes, Jasso returned them to “mailroom

5 staff assigned” to Plaintiff’s housing facility. (Id., ¶ 14).

6 Plaintiff produced seven articles of mail that were delayed in their delivery. Of the seven

7 articles of mail, five had substantial differences between the postmark date and the date Plaintiff

8 claims he received the envelope, and three contained Jasso’s signature. (Spencer Depo. At 19:11-

9 19, 20). Jasso’s initials do not appear on all the envelopes. (Doc. No. 31-6 at 4-7; Spencer Depo.

10 Tr. at 43:24-44:3). It is uncontroverted that Plaintiff eventually received the mail at issue in this 11 case. (Doc. No. 31-6 at 4-7; Doc. No. 36 at 11, ¶¶ 4-5). Further, the mail that was delayed was 12 from “other inmates, friends and family members” and thus, was nonconfidential and was not 13 legal mail. (See Doc. No. 12 at 13; see also Doc. No. 31-6 at 4-7; Doc. No. 31-3 at 1-3 ¶¶ 3, 5, 14 13). 15 Here, Plaintiff produces no evidence that any on his mail was withheld. Nor does Plaintiff 16 produce any evidence that Jasso was responsible for the delay of any mail. It is undisputed that 17 the reason Defendant’s signature appears on three of the seven envelopes, is her position on the 18 contraband desk required her to verify that Plaintiff and the inmate had approval to correspond. 19 Plaintiff neither alleges let alone establishes that the delay in his mail resulted in any injury or 20 inhibited his access to the courts. See Holmes v. Dreesen, 2015 WL 627907, at *3 (D. Nev. Feb. 21 11, 2015) (“Therefore, any harm caused by a delay in receiving this legal mail from the state 22 court about an unrelated civil claim did not implicate Plaintiff's constitutional right of access to 23 the courts.” (citing Lewis v. Casey, 518 U.S. 343, 354–55 (1996))), aff’d, 667 F. App’x 264 (9th 24 Cir. 2016). Even if Plaintiff can show that Jasso’s inspection process delayed his mail, any 25 temporary delay caused by her security inspection, does not violate Plaintiff’s First Amendment 26 rights. Crofton v. Roe, 170 F.3d at 961. 27 Based on the foregoing, the undersigned recommend the district court grant Defendant 28 Jasso summary judgment on Plaintiff’s First Amendment mail claim. 1 B. First Amendment Retaliation

2 The First Amendment guarantees a prisoner the right to file a grievance or access the

3 courts. Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015); Brodheim v. Cry, 584 F. 3d 1262,

4 1269 (9th Cir. 2009). Retaliating against an inmate for exercising this right is “prohibited as a

5 matter of ‘clearly established law.” Brodheim, 584 F.3d at 1269 (citations omitted). To prove a

6 First Amendment retaliation claim, a plaintiff must demonstrate five elements: (1) he engaged in

7 protected activity; (2) the state actor took an adverse action against the plaintiff; (3) a causal

8 connection between the adverse action and the protected conduct; (4) the defendant’s actions

9 would chill or silence a person of ordinary fitness from protected activities; and (5) the retaliatory

10 action did not advance a legitimate correctional goal. Chavez v. Robinson, 12 F.4th 978, 1001 11 (9th Cir. 2021) (quoting Rhodes, 408 F.3d at 567–68). 12 The adverse action must be of a sufficient nature that it would deter or “chill” a person of 13 “ordinary firmness” in the exercise of his constitutional rights. Rhodes v. Robinson, 408 F.3d 14 559, 568-69 (9th Cir. 2005). The adverse action taken against the prisoner “need not be an 15 independent constitutional violation. The mere threat of harm can be an adverse action.” 16 Watison, 668 F.3d at 1114 (internal citations omitted). A retaliatory motive may be shown by 17 sufficiently convincing circumstantial evidence, as well as direct evidence. Bruce v. Ylst, 351 18 F.3d 1283, 1288–89 (9th Cir. 2003); McCollum v. Ca. Dep’t of Corr. And Rehab., 647 F.3d 870, 19 882 (9th Cir. 2011). The causal connection between the adverse action and the protected conduct 20 can also be inferred from the chronology of events. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 21 1995). But, depending on the facts presented, the mere timing of events may not be sufficient to 22 establish causation. Id. And mere speculation that a defendant acted out of retaliation is not 23 sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing cases). 24 In reviewing retaliation claims by a prisoner, courts must be mindful of avoiding 25 “excessive judicial involvement in day-to-day prison management, which ‘often squander[s] 26 judicial resources with little offsetting benefit to anyone.’” Pratt, 65 F.3d at 807 (quoting Sandin 27 v. Conner, 515 U.S. 472, 482 (1995)). Thus, courts must “‘afford appropriate deference and 28 flexibility’ to prison officials in the evaluation of proffered legitimate penological reasons for 1 conduct alleged to be retaliatory.” Id. (quoting Sandin, 515 U.S. at 482). Further, courts are

2 cautioned to “approach prisoner claims of retaliation with skepticism and particular care” lest

3 “virtually any adverse action taken against a prisoner by a prison official—even those otherwise

4 not rising to the level of a conditional violation—can be characterized as a constitutionally

5 proscribed retaliatory act.” Bacon v. Phelps, 961 F.3d 533, 543 (2d Cir. 2020) (quoting Dawes v.

6 Walker, 239 F. 3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema

7 N.A., 534 U.S. 506 (2002)).

8 In his operative complaint, Plaintiff alleges Jasso intentionally delayed his incoming mail

9 due to his filing of a grievance. (Doc. No. 12 at 8). Plaintiff states he first noticed his mail was

10 being delayed by Defendant Jasso in October 2019. (Id. at 9, ¶ 22). Plaintiff states that inmate 11 Robert Miller overheard a conversation between L. Lima, Library Technical Assistant, and 12 Plaintiff during which Lima told Plaintiff “Jasso and staff always had something negative to say 13 about [Plaintiff], such as he’s a complainer and whiner, and always filing appealing on staff.” 14 (Id. at 8, ¶¶ 12-13; at 35-36; 36 at 21-22). 15 Defendant Jasso denies being aware of Plaintiff’s grievance history relating to the 16 mailroom prior to October 2019, and denies she performed any of her job duties in the mailroom 17 in retaliation for any grievances that Plaintiff had filed. (Doc. No. 31-3, ¶11). In fact, Jasso 18 attests that she was aware that Plaintiff’s mail was being delayed prior to the initiation of this 19 lawsuit. (Id., ¶ 10). 20 In his sworn deposition testimony, Plaintiff confirmed that his mail first started being 21 delayed in October 2019. (Spencer Depo. at 23:1-6). Plaintiff also confirmed that he submitted 22 grievances against Defendant Jasso and the mailroom regarding the delayed mail as Log No. 23 SATF-G-19-7306, dated November 27, 2019; and Log No. SATF-20-01007, dated March 16, 24 2020. (Doc. No. 31-1 at 2; Spencer Depo. at 20:25; 23:7-14). Only Log No. SATF-20-01007, 25 dated March 16, 2020 mentioned Jasso. However, both grievances were submitted after the date 26 Plaintiff alleged his mail began being withheld. Given the date of Plaintiff’s grievances, they 27 could not serve as the protected activity that allegedly precipitated the delay of Plaintiff’s mail 28 starting in October 2019 that Plaintiff attributes to Jasso. Thus, Plaintiff’s retaliation claim fails 1 at the threshold requirement of establishing causation. See Kelley v. Corr. Corp. of Am., 750 F.

2 Supp. 2d 1132, 1143 (E.D. Cal. 2010) (“Logic demands that any protected activity engaged in by

3 a plaintiff that is the basis for a claim of retaliation must precede the defendant’s retaliatory act.”).

4 Even if Miller’s statement recounting Lima’s statement to Plaintiff is admissible,3 Miller

5 does not state when he overheard the comment or, more importantly, when Jasso allegedly made

6 the statement. Thus, while Lima’s comments to Plaintiff may evince that Jasso disliked Plaintiff,

7 these comments alone fail to show that Jasso took any retaliatory action against Plaintiff for any

8 protected action, given the date Plaintiff filed grievances about the mailroom and the date when

9 Plaintiff claims Jasso started to delay his mail.

10 Plaintiff attempts to create an issue of fact by claiming for the first time in his Declaration 11 in Support of his Opposition that, contrary to the allegations in his operative complaint and his 12 deposition testimony, he first complained of his delayed mail on July 30, 2019, and attaches two 13 CDCR 22 Inmate Request for Interview Forms.4 (Doc. No. 36 at 14, 15). Plaintiff also attaches a 14 copy of a December 6, 2019 response to a grievance alleging retaliation against Lt. D. Lopez 15 concerning events that occurred on September 10 and 11, when he was ordered by Lopez to 16 return to his housing unit while he was performing ADA official duties. (Id. No. 36 at 27). 17 Defendant objects to this evidence because Plaintiff failed to previously identify these documents 18 or produce them in discovery, and therefore they should not be considered pursuant to Federal 19 Rule of Civil Procedure 37(c). See Fed. R. Civ. P. 37(c). 20 Even if the court accepts these documents, they fail to raise an issue of material fact to 21

22 3 Defendant objects to inmate Miller’s statements as inadmissible for the purpose of opposing Defendant Jasso’s Motion because they are hearsay and cites to Blair Foods, Inc. v. Ranchers Cotton Oil, 601 F.2d 23 665, 667 (9th Cir. 1980) (hearsay evidence may not be considered in deciding whether material facts are at issue in summary judgment motions) and Percival v. Clark, No. 1-09-cv-01699-MJS PC, 2013 WL 24 238907, at *3 (E.D. Cal. Jan. 22, 2013) in support. (Doc. No. 43 at 5). A district court may only consider admissible evidence in ruling on a motion for summary judgment. See Fed.R.Civ.P. 56(e); Orr v. Bank of 25 Am., 285 F.3d 764, 773 (9th Cir. 2002). Unauthenticated documents and hearsay evidence are inadmissible, and consequently, may not be considered on summary judgment. Orr, 285 F.3d at 773–74, 26 778. Since Lima allegedly made the statements directly to Plaintiff, it is unclear why Plaintiff submitted inmate Miller’s declaration. Nonetheless, a plaintiff can testify to what a third party told them, but not to 27 prove the truth of the statement (which would be hearsay) unless it falls within an exception, such as the party-opponent exception. 28 4 The second form is not legible. 1 deny summary judgment. Unlike a grievance, an inmate’s request for an interview submitted on a

2 CDCR-22 form does not fall within protected activity. Further, nowhere does the CDCR 22 form

3 attribute any wrongdoing to Defendant Jasso, nor is there any evidence that Jasso was aware that

4 Plaintiff submitted CDCR-22 forms. Further, Plaintiff fails to articulate how his grievance

5 against Lt. Lopez about events wholly unrelated to the mailroom could possibly motivate

6 Defendant Jasso to take any retaliatory action against him. Plaintiff presents no evidence that

7 Defendant Jasso knew of the grievance against Lt. Lopez. There is no evidence that Lt. Lopez

8 ever spoke to Defendant Jasso about the grievance, and no evidence that Lt. Lopez even worked

9 in the mailroom during the time at issue. This is fatal to Plaintiff’s retaliation claim. See Corales

10 v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (finding that plaintiff must offer evidence the 11 defendant knew about the protected conduct to raise a triable issue as to motive). 12 Additionally, Plaintiff testified in his deposition that the reason he believed Defendant 13 Jasso was responsible for the delay of all his mail was because her initials appeared on the 14 envelopes of some of his delayed letters. (Spencer Depo. Tr. at 44:13–17). It is undisputed the 15 reason Jasso’s initials appeared on some of Plaintiff’s mail is because her position required her to 16 affix her initials to the envelopes after she confirmed Plaintiff had approval for the inmate-to- 17 inmate correspondence. Plaintiff also admitted he did not know the name of any other mailroom 18 employee besides Defendant Jasso. (Id. at 41:14–42:12). Further, there is no evidence as to 19 when Jasso received the mail that she inspected to prove that any delay was attributable to her 20 action or inaction. This constitutes exactly the type of “mere speculation” the Ninth Circuit has 21 repeatedly rejected. See Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing cases); see also 22 Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 2001) (“A plaintiff's 23 belief that a defendant acted from an unlawful motive, without evidence supporting that belief, is 24 no more than speculation.”). 25 Moreover, Plaintiff fails to put forth evidence refuting Defendant’s declaration in which 26 she denies withholding any of Plaintiff’s mail during the relevant period and having no 27 knowledge that Plaintiff’s mail was withheld or delayed. (Doc. No. 31-3 at 2 ¶ 8; id. at 2–3 ¶¶ 28 10, 12). Indeed, the fact that Jasso approved Plaintiff’s inmate-to-inmate correspondence is 1 evidence that she had no bias against Plaintiff. Thus, Plaintiff cannot establish the required “but-

2 for” causation. See Nieves v. Bartlett, 587 U.S. 391, 399 (2019) (the plaintiff must establish “but-

3 for causation,” meaning “the adverse action against the plaintiff would not have been taken absent

4 the retaliatory motive”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 917 (9th Cir. 2012)

5 (Plaintiff “must allege facts ultimately enabling him to ‘prove the elements of retaliatory animus

6 as the cause of injury.’”). Furthermore, Plaintiff agreed in his response to Defendant’s statement

7 of undisputed facts that Defendant did not take any retaliatory actions towards Plaintiff during the

8 performance of her duties. (Compare Doc. No. 31-1 at 5, ¶ 26 with Doc. No. 36 at 8, Plaintiff

9 agrees with UF #26).

10 Accordingly, the undersigned recommends the District Court grant Defendant’s MSJ as to 11 Plaintiff’s retaliation claim. 12 C. Fourteenth Amendment Due Process 13 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of life, 14 liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The requirements of 15 procedural due process apply only to the deprivation of interests encompassed by the Fourteenth 16 Amendment’s protection of liberty and property.” Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). 17 “To state a procedural due process claim, [a plaintiff] must allege ‘(1) a liberty or property interest 18 protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of 19 process.’” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa 20 Clara, 995 F.2d 898, 904 (9th Cir. 1993)). 21 “It is undisputed that withholding delivery of inmate mail must be accompanied by 22 minimum procedural safeguards.” Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002). Inmates 23 have “a Fourteenth Amendment due process liberty interest in receiving notice that [their] 24 incoming mail is being withheld by prison authorities.” Id. (internal quotations and citations 25 omitted) (emphasis added). And a due process violation occurs “only if the failure to provide 26 notice was pursuant to prison policy, mere negligence on the part of prison officials is not 27 actionable as a due process violation.” See Calihan v. Adams, 2011 WL 284467, at *6 (E.D. Cal. 28 Jan. 26, 2011) (cleaned up) (citing Sorrels, 290 F.3d at 972). 1 In contrast, there is no federal constitutional liberty interest in compliance with state

2 prison regulations. Solomon v. Felker, 2013 WL 5375538, at *12 (E.D. Cal. Sept. 24, 2013)

3 (“Plaintiff’s allegation that the defendants failed to adhere to the prison’s own institutional

4 policies and procedures does not, by itself” give rise to a constitutional violation); Sandin v.

5 Conner, 515 U.S. 472, 481–82 (1995) (recognizing prison regulations are “primarily designed to

6 guide correctional officials in the administration of a prison” and are “not designed to confer

7 rights on inmates”); Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir. 1993) (“[A] failure to

8 adhere to administrative regulations does not equate to a constitutional violation.”); see also

9 Armstrong v. Warden of USP Atwater, 2011 WL 2553266, at *8 (E.D. Cal. June 24, 2011) (citing

10 same). Indeed, Title 15 of the California Code of Regulations, which includes regulations 11 governing the administration of state prisons, does not confer a private right of action for inmates 12 to sue to enforce the regulations or to obtain damages. Vasquez v. Tate, 2012 WL 6738167, at *9 13 (E.D. Cal. Dec. 28, 2012) (finding no federal due process violation based on prison’s failure to 14 comply with Title 15 because no authority establishes the existence of a private right of action). 15 Here, Plaintiff’s due process claim is predicated upon Defendant’s alleged withholding of 16 Plaintiff’s mail in violation of prison procedures. (See, e.g., Doc. No. 12 at 13) (“Defendant’s 17 actions were in contravention of Title 15, D.O.M., Policy,5 and therefore did not reasonably 18 advance a legitimate penological purpose.”). First, Plaintiff presents no evidence that his mail 19 was withheld or disallowed. Instead, at most, some of his mail was delayed. Further, even if 20 Jasso’s actions violated a CRCR regulation (not conceded) this does not amount to a 21 constitutional violation. As noted, Title 15 does not give rise to a private cause of action. 22 Finally, because “Plaintiff does not maintain that the alleged misconduct was pursuant to prison 23 policy[, he] has not stated a Due Process violation under Section 1983.” Jackson v. Medina, 2016 24 WL 7638200, at *6 (C.D. Cal. Oct. 31, 2016), report and recommendation adopted, 2017 WL 25 43919 (C.D. Cal. Jan. 3, 2017). 26 27 5 California Code of Regulations, title 15, section 3136 (a) provides that if mail is “withheld or disallowed, 28 the inmate shall be informed.” 1 Accordingly, the undersigned recommends that Defendant’s MSJ be granted as to

2 Plaintiff’s Fourteenth Amendment Due Process Clause claim concerning the delay of Plaintiff’s

3 mail without notice.

4 D. Qualified Immunity

5 In the alternative, Defendant asserts that she is entitled to qualified immunity in this case

6 because no official in her position would believe that their conduct violated Plaintiff’s

7 constitutional rights under the circumstances.

8 A government official is entitled to qualified immunity under Section 1983 unless (1) the

9 official “violated a federal statutory or constitutional right, and (2) the unlawfulness of his

10 conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 11 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)); Harlow v. Fitzgerald, 457 U.S. 12 800, 817 (1982). To demonstrate that a right was “clearly established” requires a showing that 13 the statutory or constitutional question was “beyond debate,” such that every reasonable official 14 would understand that what he is doing is unlawful. Wesby, 138 S. Ct. at 589; Vos v. City of 15 Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018). This standard is “demanding” and protects 16 “all but the plainly incompetent or those who knowingly violate the law.” Wesby, 138 S. Ct. at 17 589 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). “[A] court typically should identify a 18 case where an officer acting under similar circumstances as [the defendant] was held to have 19 violated the constitutional right at issue.” S.B v. County of San Diego, 864 F.3d 1010, 1015 (9th 20 Cir. 2017). “Even when no case is ‘directly on point,’ courts may compare relevant factors to 21 determine whether every reasonable officer should have known the conduct in question was 22 unlawful.” Anderson v. Virga, 2018 WL 1556806, *2 (E.D. Cal. Mar. 30, 2018) (citing Isayeva v. 23 Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946–47 (9th Cir. 2017). The plaintiff bears the burden 24 of establishing that the right alleged was clearly established. Moran v. Washington, 47 F.3d 839, 25 844 (9th Cir. 1998). 26 As discussed supra, the Court finds the undisputed facts show that Plaintiff failed to put 27 forth sufficient evidence to establish a First or Fourteenth Amendment claim for the delay of his 28 mail or a First Amendment claim for retaliation. Thus, because the Court finds no constitutional 1 | violation, the Court need not address the second prong. 2 Accordingly, it is RECOMMENDED: 3 1. The District Court GRANT Defendant’s motion for summary judgment (Doc. No. 4 31). 5 2. Judgment be entered in Defendant’s favor and the case closed. 6 NOTICE TO PARTIES 7 These Findings and Recommendations will be submitted to the United States District 8 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 9 | after being served with a copy of these Findings and Recommendations, a party may file written 10 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned, 11 | “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 12 | (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 13 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 14 | CM/ECF document and page number, when possible, or otherwise reference the exhibit with 15 || specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 16 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 17 | 636(b)d)(C). A party’s failure to file any objections within the specified time may result in the 18 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 19 20 Dated: _ December 18, 2025 law ZA. foareh Zackte 1 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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