Whitall v. Gutierrez

Background

In September 2018, Officer William Welch ordered Raymond Whitall to return to his cell and told him he would be restricted there for 30 days. Welch said Sergeant S.D. Gutierrez had called and instructed him to impose the punishment. Whitall repeatedly asked for the basis of the punishment, but Welch did not confirm whether Gutierrez had one. A later investigation by the California Department of Corrections and Rehabilitation found no disciplinary records supporting the punishment.

The parties disputed the extent of the restrictions. Whitall said he lost access to the dayroom, phones, yard recreation, and the ability to shower whenever he wanted. The defendants asserted that he lost dayroom access but retained the same access to other facilities and services.

Whitall had previously filed grievances and a complaint alleging misconduct by Gutierrez. He claimed that Gutierrez ordered the 2018 punishment in retaliation for those grievances. Whitall filed this case without a lawyer in February 2020. After screening his complaint, the court allowed three categories of claims to proceed: a federal due process claim against Welch, related California state-law claims against Welch, and a federal retaliation claim against Gutierrez.

Summary Judgment for Officer Welch

The court rejected Welch’s argument that Whitall could not pursue a due process claim without first showing a protected liberty interest. The court applied binding Ninth Circuit precedent holding that a prisoner’s due process rights may be violated when discipline is imposed with no supporting evidence. The court also concluded that Gutierrez’s phone call explained why Welch acted but was not evidence supporting the discipline itself.

The court nevertheless granted qualified immunity to Welch. Qualified immunity protects an officer unless existing law clearly established that the officer’s specific conduct was unlawful. The court found that Welch’s reliance on his supervising officer’s instruction to impose relatively minor discipline did not violate clearly established federal law. The court therefore granted summary judgment for Welch and against Whitall on the due process claim.

The court also granted summary judgment for Welch on all five state-law claims: claims under the Ralph Act, the Bane Act, California’s dependent-adult-abuse statute, intentional infliction of emotional distress, and negligent infliction of emotional distress. For the first four claims, the court found that Whitall had not presented evidence that Welch acted with the required intent or recklessness. For the negligence-based emotional-distress claim, the court held that the duty recognized under California law did not extend to protecting prisoners from disciplinary action without an allegation of physical harm.

Retaliation Claim Against Sergeant Gutierrez

The court denied Gutierrez’s motion for summary judgment on Whitall’s First Amendment retaliation claim. The court found evidence from which a jury could decide that Gutierrez ordered Welch to discipline Whitall, including Welch’s account of receiving a call from someone identifying himself as Gutierrez.

The court also declined to reject the retaliation claim based on the timing of the punishment. Whitall’s evidence that he had filed grievances against Gutierrez and that Gutierrez had expressed frustration about those grievances created a factual issue that the court could not resolve by weighing evidence at summary judgment.

The court further held that Whitall did not need to prove that his own speech was completely stopped. His evidence that he was largely confined to his cell and lost access to phone calls and recreation was enough for the retaliation claim to proceed to a jury.

Sanctions

Gutierrez used Whitall’s medical records in a reply brief supporting summary judgment, even though he had not disclosed those records during discovery. Federal Rule of Civil Procedure 37(c)(1) generally bars a party from using information that it failed to disclose unless the failure was substantially justified or harmless.

The court found that Gutierrez’s nondisclosure was neither justified nor harmless. The records were relevant to whether Whitall could access spaces and programs during his confinement, an issue central to the retaliation claim. The court also found that the late disclosure, which included nine new witnesses and nearly a thousand pages of records after fact discovery had closed, impaired Whitall’s ability to conduct discovery. The court granted Whitall’s sanctions motion and excluded Gutierrez’s belated evidence from consideration on the motion and from use at trial.

Disposition

The court granted summary judgment in favor of Welch and against Whitall on all counts, denied Gutierrez’s motion for summary judgment on the retaliation claim, denied Whitall’s motion for partial summary judgment, and granted Whitall’s motion for sanctions against Gutierrez.