Filed 3/20/13 Jackson v. Robinson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts a nd parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

FATEEN L. JACKSON,
Plaintiff and Appellant,

v. M. ROBINSON et al.,
Defendants and Respondents. F064018
(Super. Ct. No. S-1500-CV-268716)

OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge. Fateen Jackson, in pro. per., for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney General, Thomas S. Patterson and Kenneth T. Roost, Deputy Attorneys General, for Defendants and Respondents.
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* Before Wiseman, Acting P.J., Levy, J., and Cornell, J.2. Plaintiff Fateen L. Jackson is serving a se ntence in state prison. He sued a prison guard and several prison officials after the gua rd confiscated his CD player/clock radio
because it had a metal base that could have be en used to make a weapon. The trial court granted defendants’ motion for summary judgm ent and entered judgment in their favor. Jackson now argues that the court erred in granting summary judgment for several reasons, all related to an alleged inability to complete necessary discovery before the summary judgment motion was heard: Defe ndants failed to respond to his discovery requests in a manner he considered satisfact ory; the court refused to continue the summary judgment hearing to allow Jackson to complete additional discovery; and the court refused to file Jackson’s motion to comp el discovery because of formal defects. Jackson also argues that the court erred in denying his motion for reconsideration of the summary judgment motion. Jackson’s contenti ons are without merit and we will affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES Jackson filed his complaint in superior court on October 30, 2009. The complaint alleged that, in 2001, when Jackson was hous ed at California State Prison-Los Angeles County, he bought a clock radio with a CD pl ayer, which he was allowed to use in his
cell. Jackson was moved to California Corre ctional Institution-Tehachapi in 2004. On August 11, 2006, a correctional officer identif ied as defendant M. Robinson confiscated the device because it had a metal plat e attached to the underside. Jackson submitted an administrative appeal form, in which he requested that the metal plate be removed and the CD player return ed to him without it. In what is referred to as the “informal level” of response, the reviewing staff member rejected this request, writing that the plate was secured by 11 screws and that its removal would cause internal components to fall out. The staff member al so wrote that the device no longer conformed to regulations because of its size and becau se its outer housing was not made of clear plastic.3. Jackson sought another response at the “f ormal level,” stating that no parts would fall out if the metal plate were removed a nd that regulations contemplated that the transition to devices meeting the new requi rements would take place through attrition, with inmates retaining their old devices until they stopped working. A panel of two staff members—a correctional sergeant and a fac ility captain—upheld the initial response, writing that the metal plate was a potential secu rity threat, and that the CD player could not be returned without it because regul ations prohibited inmates from possessing
modified devices. Jackson then proceeded to the “Second Level” review, arguing that he did not believe removing the metal plate would result in a modified device within the meaning of the regulations, and that it was a common practic e for staff to remove parts of devices for
various reasons and then return the devices to inmates. Further, the sergeant who participated in the prior level of review ha d actually taken the metal plate off and had seen that nothing would fall out of the device. The sergeant said he would have given the CD player back to Jackson without the base if it had been up to him. A panel consisting of an associate warden and a chief deputy wa rden again upheld the original decision. They wrote that the device could not be retu rned with the metal plate because the plate was “potential weapon stock.” It also coul d not be returned without the metal plate because “[i]t is not the policy of California Co rrectional Institution to alter items in order
to issue items out.” Finally, Jackson requested a “Director’s Le vel” review. He cited former Title 15, California Code of Regulations, secti on 3006, subdivision (d), which provides: “Anything in the possession of an inmate which is not contraband but will, if retained in possession of the inmate, present a serious thr eat to facility security or the safety of inmates and staff, shall be controlled by staff to the degree necessary to eliminate the threat.” Jackson argued that this regulation au thorized staff to remove the metal plate and give the CD player back to him. He also contended that the prison was applying4. regulations arbitrarily, and asked to be reimbursed if the CD player were not returned. The original decision was upheld in a letter signed by the chief of the inmate appeals branch. The letter stated that the CD player was properly confiscated because the metal plate could be used to make a weapon. The letter did not address Jackson’s claim that he was entitled to have the prison remove the dangerous part and return the device to
him. It advised Jackson that he could forw ard his claim to the Victim Compensation and
Government Claims Board for further review . Jackson did so; the Board rejected his claim and advised him that its rejecti on allowed him to initiate litigation. Jackson’s complaint alleges th at, in addition to rejecting all his appeals, staff also refused to allow the CD player to be mailed to an outside address. He cited Title 15, California Code of Regulations , section 3191, subdivision (c), which provides that inmate property not meeting regulator y requirements can be mailed to someone willing to accept the property, if the inmate can pay the postage. Boxes checked on the complaint form indi cated that Jackson’s causes of action were general negligence and intentional to rt. Named as defendants were Officer Robinson and five officials who signed doc uments rejecting Jackson’s appeals: Correctional Sergeant G. Allen, Correctional Captain D. Zanchi, Associate Warden M. Carrasco, Chief Deputy Warden F. Gonzales, a nd Chief of the Inmate Appeals Branch N. The complaint prayed for co mpensatory damages of $50,000 plus punitive damages. After the complaint was filed, Jackson served interrogatories and requests for production of documents on defe ndants. On August 2, 2010, defendants successfully asked the court to extend the time for respondi ng to the discovery requests to October 4, 2010. On August 17, 2010, defendants filed their motion for summary judgment. On October 7, 2010, Jackson sent a letter to defe ndants’ counsel, asserting that defendants’ discovery responses were evasive, include d unmeritorious objections, and were missing pages. Defendants did not make further responses. Jackson attempted to file a motion to compel discovery, but on November 22, 2010, th e court returned his papers with a letter5. stating that Jackson had failed to state a hear ing date, time, and depa rtment and had failed to include copies and self-addressed stam ped envelopes. On November 30, 2010, Jackson filed a request to continue the he aring on the summary judgment motion, which was set to be heard on December 2, 2010, a nd to extend the deadline for his opposition to the summary judgment motion. The request st ated that Jackson needed more time to complete discovery. The court denied the request. The motion for summary judgment was heard on December 2, 2010, without an opposition on file by Jackson. The court granted the motion, stating in its order that there was no tort liability for confiscating contraband, that defendants did not breach their duty of care, and that defendants were en titled to law enforcement immunity under
Government Code section 820.4.
Jackson filed a motion to set aside th e order granting summary judgment and to reconsider his request for a continuance. Th e motion asserted that Jackson was unable to obtain evidence necessary to oppose summary judgment because defendants failed to make adequate responses to his discovery reque sts, the court refused to file his motion to compel discovery, and the court denied him extra time to continue pursuing discovery.
The court denied the motion. Judgment for the defense was entere d on March 2, 2012, after defendants neglected for a period to submit a judgment for the court’s approval. Jackson’s notice of appeal, which was was submitted earlier, was d eemed filed upon this court’s receipt of a conformed copy of the filed judgment.
DISCUSSION Jackson makes three arguments on the summary judgment issue: Defendants made inadequate discovery responses, preventing him from effectively opposing summary judgment; the court erred when it refused to file his motion to compel discovery; and the court erred when it refu sed to grant him a continuance to conduct additional discovery. Only the second and th ird arguments actually assert error by the6. trial court. To show prejudice resulting from any error in the court’s refusal to file the motion to compel, Jackson would have to s how a potential to discover evidence that would have supported his opposition to the summary judgment motion. ( People v.
Watson (1956) 46 Cal.2d 818, 836; Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 746 [reversible error established only if appe llant shows reasonable probability of more favorable outcome absent error].) To show that the court erred in denying a continuance for the purpose of pursuing additional discovery, Jackson would have to show that “facts essential to justify opposition may exist” and that additional discovery was necessary to obtain and present them (Code Civ. Proc., § 437c , subd. (h)); and to show that the error was prejudicial, he would have to show a reasonable probability of a more favorable outcome if the continuance had been granted. In other words, all Jackson’s arguments for reversal of the trial court’s summary judgm ent ruling require him to show that he was pursuing discovery of some evidence that c ould have helped him to defeat the summary judgment motion. He has not shown this. In his ope ning brief, Jackson mentions several interrogatories to which he received respons es he considered evasive or incomplete: “what was the proper application of [Title 15, California Code of Regulations, section] 3006(d)”; what education and training defendants had; wh ether defendants had been defendants in prior lawsuits; and whether de fendant Robinson had ever altered inmates’
devices. He also mentions two document re quests to which he received responses he considered inadequate: for prior inmate grievances against defendants concerning inmates’ property; and for “rules, regulati ons, laws, rights, policies, directives or instructions to staff concerning inmates[’] personal property ....” Jackson’s argument appears to be that proper responses to these discovery requests would have helped him to show that there was no policy against removing parts from inmates’ otherwisepermissible devices to render them nondangerous and that this had often been done in the past. Missing from Jackson’s briefs is a ny explanation of how, if he had obtained7. information supporting this thesis, the inform ation would also have supported denial of the motion for summary judgment. He cites no authority for the view that confiscating a device with a dangerous part and refusing to return it with that part removed would amount to negligence or an intentional tort —the causes of action for which he sued—
even if defendants had accommodated inmates’ wishes in similar situations on other occasions. There is no doubt that prison sta ff are entitled to take from inmates property than can be used to make weapons, and we know of no grounds for the notion that this
lawful conduct becomes tortious if staff fail to return the property after taking affirmative steps to make it safe. The record indicates that prison staff actually took the objectionable metal plate off the CD player, and their reasons for refusi ng to return the CD player other than the dangerous character of that plate—the device would fall apart without the plate, it was not made of clear plastic, modification re ndered it contraband, a nd something was wrong
with its size—seem to have been abandoned by the time Jackson’s grievance reached the
director’s level of review. Prison offici als were under no obligation to carry out a modification to make a dangerous object safe , but it appears to be undisputed that the modification had actually already been carried out, and staff simply decided not to return the device anyway. Behavior that is frust rating and appears arbitrary is not, however,
made tortious for that reason. Jackson also argues that the trial c ourt erred when it denied his motion for
reconsideration of the orders denying a continuance and gr anting summary judgment. A motion for reconsideration of a prior order must be based on new or different facts, circumstances, or law. The party making th e motion must “state by affidavit ... what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).) Jackson’s motion for recons ideration merely recited the facts about his dissatisfaction with defendants’ discovery re sponses and the court’s refusal to file his motion to compel additional responses. By his own admission, Jackson had already told8. the court about his dissatisfaction with defe ndants’ responses at a case management conference on November 1, 2010. He asserts that at the summary judgment hearing, he “was not heard on the issues surrounding th e reasons [he] could not file a proper opposition,” but his motion for a continuance, which was read and denied by the court, explained those reasons. We conclude that Ja ckson failed to make a statement of new or different facts, law, or circumstances in support of his motion for reconsideration.
DISPOSITION The judgment is affirmed.
No costs are awarded.