United States District Court, S.D. California
November 8, 2005.
ROBERT MITCHELL, Plaintiff,
L. VILLA, Correctional Officer, Defendant.
The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge
REPORT AND RECOMMENDATION DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND DENYING MOTION TO SANCTION DEFENDANT'S ATTORNEY
[Doc. Nos. 31, 32, 39, 44]
Plaintiff Robert Mitchell is a state prisoner proceeding in
propria persona on a complaint for violation of his civil rights
pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's
motion for summary judgment or partial summary judgment and
Plaintiff's motion to sanction Defendant's counsel. After
thorough review of Plaintiff's motions, Defendant's opposition,
and all supporting documents, this Court recommends that both
Plaintiff's motion for summary judgment or partial summary
judgment and motion for sanctions be DENIED.
II. Procedural Background
On June 11, 2003, Plaintiff Robert Mitchell, a state inmate
incarcerated at Centinela State Prison at the time of the events,
filed a pro per civil rights complaint pursuant to
42 U.S.C. § 1983. Plaintiff concurrently filed a Motion to Proceed In
Forma Pauperis ("IFP"). The Honorable Judith N. Keep granted
Plaintiff's IFP motion on September 23, 2003.
Plaintiff raises five claims in his Complaint. First, he
alleges that Defendant Villa, a correctional officer at
Centinela, retaliated against him after he filed a grievance
against Defendant Villa. (Compl. at 7-10.) Second, Plaintiff claims that Defendant
Villa violated his right to petition the government for
grievances. (Id. at 10-12.) Third, Plaintiff alleges that
Defendant Villa engaged in "Due Process Equal Protection and
Liberty Interest Violations[.]" (Id. at 12-13.) Fourth,
Plaintiff alleges that Defendant Villa was negligent. (Id. at
14.) Plaintiff's final claim is for "Torts in Essence[.]" (Id.
at 15-16.) In his Complaint, Plaintiff seeks declaratory and
injunctive relief and compensatory and punitive damages. (Id.
On May 27, 2005, Plaintiff requested a hearing date for the
purposes of filing a Motion for Summary Judgment. [Doc. No. 26].
In an order dated June 7, 2005, this Court issued a scheduling
order and a hearing date for the motion. [Doc. No. 27].
On June 21, 2005, Plaintiff filed the instant Motion for
Summary Judgment or Partial Summary Judgment pursuant to Federal
Rule of Civil Procedure 56. [Doc. No. 32]. Concurrently, Plaintiff
filed a Motion to Sanction Defendant's Attorney of Record
pursuant to Federal Rule of Civil Procedure 11. [Doc. No. 31]. On
August 12, 2005, Defendant filed an opposition to Plaintiff's
Motion for Summary Judgment and for Sanctions. [Doc. No. 39]. On
August 17, 2005, Plaintiff filed his reply to Defendant's
Opposition to Plaintiff's Motion. [Doc. No. 44]. By previous
order, this Court deemed Plaintiff's Motion submitted without
III. Factual Background
Plaintiff's complaint alleges that on January 22, 2003,
Correctional Officer Villa forced Plaintiff to forego a shower.
(Compl. at 3.) According to Plaintiff, Defendant Villa and
Correctional Officer Delgadillo were responsible for conducting
inmate showers on the day in question. (Id.) The complaint
alleges that Defendant attempted to force Plaintiff and inmate
Grigsby to shower together in a single capacity shower. (Id.)
Plaintiff contends that he informed Defendant that it would be
hazardous for two people to shower together in a single shower.
Further, Plaintiff claims that he told Defendant that he is
disabled and requires a special handicap seat when he showers.
(Id.) After Plaintiff requested to see a program status report
authorizing two inmates in a single shower, Defendant denied
Plaintiff a shower. (Id.) On January 26, 2003, Plaintiff filed
a citizen's complaint against Defendant Villa regarding the
January 22, 2003, incident. (Id. at 4.) Plaintiff's complaint also alleges that on March 10, 2003,
Defendant approached him at the drinking fountain and attempted
to provoke Plaintiff into a physical altercation. (Id.)
Plaintiff claims that he walked away and tried to return to his
cell. (Id.) Defendant directed Correctional Officers Tyler and
Ryan to activate the emergency alarm. (Id. at 5.) At that
point, all inmates got down on the floor in compliance with
policy. (Id.) Plaintiff and another inmate were placed into
mechanical restraints and escorted to the Program Office where
they were put in security cages. (Id.) According to Plaintiff,
he was the only one that received a disciplinary rules violation
in relation to the incident. (Id.) On March 13, 2003, Plaintiff
filed a citizen's complaint against Defendant Villa regarding the
March 10, 2003, incident. (Id.)
Plaintiff claims that on March 24, 2003, 11 days after
Plaintiff filed his second complaint against Defendant, he was
approached by "several unknown `gang affiliated' inmates" who
attempted to intimidate him into dropping his complaints against
Defendant. (Id.) Plaintiff refused to drop his complaints
against Defendant. (Id. at 6.)
On April 7, 2003, Plaintiff received a disciplinary hearing
regarding the March 10, 2003, incident. (Id.) Plaintiff
informed the hearing officer that Defendant was discussing
Plaintiff's complaints with other inmates. (Id.) As a result of
the hearing, Plaintiff was found guilty of refusing a direct
order in violation of CCR § 3005(B). (Id.)
After the hearing, Plaintiff claims that he witnessed Defendant
telling "several unknown `gang affiliated' inmates" about what
Plaintiff said at the hearing. (Id.) Plaintiff alleges that he
was again confronted by the "gang affiliated" inmates who
threatened to physically harm Plaintiff if he did not drop his
charges against Defendant. (Id.) Plaintiff claims that out of
fear for his safety, he withdrew his remaining complaint against
Plaintiff filed the instant suit against Defendant on June 11,
2003, alleging that Defendant's alleged retaliation against him
for filing grievances resulted in a denial of Plaintiff's
constitutional rights under the First and Fourteenth Amendments.
(Motion for Summary Judgment at 3.)
Plaintiff claims that he was singled out and retaliated against
for exercising his constitutional rights. (Motion for Summary
Judgment at 4.) Plaintiff also argues that he was denied the
right to file grievances against the Defendant because he feared for his
safety as a result of Defendant's discussions with other inmates.
(Id. at 10.) Additionally, Plaintiff claims he was "denied
equal protection, liberty, interest [sic] and due process."
(Id. at 11.) Finally, Plaintiff claims that Defendant Villa is
not entitled to qualified immunity. (Id. at 13.)
A. Standard of Review
Summary judgment is properly granted when "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Entry of summary judgment is appropriate "against a party who
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). The court shall consider all
admissible affidavits and supplemental documents submitted on a
motion for summary judgment. See Connick v. Teachers Ins. &
Annuity Ass'n, 784 F.2d 1018, 1020 (9th Cir. 1986).
A "material" fact is one that is relevant to an element of a
claim or defense and whose existence might affect the outcome of
the suit. See Fair Hous. Council of Riverside County,
249 F.3d 1132, 1136 (citing Chevron USA, Inc. v. Cayetano,
224 F.3d 1030, 1037 & n. 5 (9th Cir. 2000), cert denied, 532 U.S. 942
(2001)). The materiality of a fact is thus determined by the
substantive law governing a claim or defense. Id. Disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment. T.W. Elec. Serv., Inc. v. Pacific Elec.
Contractors Ass'n, 809 F.2d 620, 630 (9th Cir. 1987) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The moving party has the initial burden of demonstrating that
summary judgment is proper. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 152 (1970). However, to avoid summary judgment, the
nonmovant cannot rest solely on conclusory allegations. Berg v.
Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). "[A] party
opposing a properly supported motion for summary judgment may not
rest upon mere allegation or denials of his pleading, but must
set forth specific facts showing that there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
The court may not weigh evidence or make credibility
determinations on a motion for summary judgment. Quite the
opposite, the inferences to be drawn from the underlying facts
must be viewed in the light most favorable to the nonmoving
party. Id. at 255; United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The nonmovant's evidence need
only be such that a "fair-minded jury could return a verdict for
[him] on the evidence presented." Anderson, 477 U.S. at 252.
However, in determining whether the nonmovant has met his burden,
the court must consider the evidentiary burden imposed upon him
by the applicable substantive law. Id.
B. Plaintiff's Retaliation Claim
1. Disciplinary Rules Violation
Plaintiff claims that he received a disciplinary rules
violation for exercising his constitutional rights. (Motion for
Summary Judgment at 5.) Specifically, Plaintiff claims Defendant
Villa retaliated against him because he filed a grievance against
Defendant. (Id.) According to Plaintiff, he received a
disciplinary rules violation from Defendant on March 10, 2003,
because Plaintiff filed a staff complaint against Defendant in
January 2003. (Id.) Plaintiff's staff complaint was in regards
to his allegation that Defendant attempted to force two inmates
into a single person shower. Plaintiff received the March 10,
2003, disciplinary rules violation for being disruptive and
refusing a direct order. Plaintiff claims that although three
inmates were involved in the March 10, 2003, incident, only
Plaintiff received a disciplinary rules violation. (Id. at 8.)
Retaliation by a state actor for the exercise of a
constitutional right is actionable under 42 U.S.C. § 1983 because
retaliatory actions may tend to chill individuals' exercise of
constitutional rights. See Perry v. Sindermann, 408 U.S. 593,
597 (1972). A prisoner's retaliation claim must rest on proof
that a guard filed the disciplinary action against him in
retaliation for the prisoner's exercise of his constitutional
rights and that the retaliatory action advanced no legitimate
penological interest. Hines v. Gomez, 108 F.3d 265, 267 (1997).
Further, a plaintiff must show that the protected conduct was a
"substantial" or "motivating" factor in the defendant's decision
to act. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314
(9th Cir. 1989); Mt. Healthy City School Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977). However, courts "should `afford
appropriate deference and flexibility' to prison officials in the
evaluation of proffered legitimate penological reasons for
conduct alleged to be retaliatory." Pratt v. Rowland,
65 F.3d 802, 807 (9th Cir. 1995) (quoting Sandin v. Connor,
515 U.S. 472, 482 (1995)). Plaintiff fails to establish that Defendant Villa filed a
disciplinary action against him in retaliation for Plaintiff's
exercise of his constitutional right to file a grievance.
Plaintiff received a hearing, in front of a senior hearing
officer, regarding the March 10, 2003, incident and was found
guilty of refusing a direct order. Moreover, at the hearing,
Plaintiff admitted that he did not follow a direct order.
Specifically, Plaintiff stated that he did not go to his cell
when told to do so because Defendant cussed at him. Further, the
fact that other inmates involved in the March 10, 2003, incident
were not disciplined does not establish that Defendant acted
improperly in filing a disciplinary action against Plaintiff.
Accordingly, Plaintiff has not shown that the disciplinary action
was a product of retaliation.
Additionally, Plaintiff has not shown that Defendant's
retaliatory action did not advance a legitimate penological
interest. Rather, Plaintiff admits to refusing a direct order.
While Plaintiff was talking to another inmate Defendant Villa
ordered him to go back to his cell. Plaintiff ignored the order
and continued to talk with another inmate. Prison officers have a
legitimate interest in maintaining order within the prison and
should be afforded flexibility in the evaluation of legitimate
penological interests. Pratt, 65 F.3d at 807. Because Plaintiff
has not offered sufficient evidence to show that there was no
legitimate penological interest for Defendant's actions, there is
certainly a material fact at dispute. Accordingly, summary
judgment is not appropriate.
2. Discussions with Other Inmates
Plaintiff claims that Defendant violated his First Amendment
rights by telling "inmate gang members" that Plaintiff is a
"snitch." (Motion for Summary Judgment at 9.) Plaintiff contends
that this was a further act of retaliation by Defendant. (Id.)
Further, Plaintiff argues that the inmate gang members forced him
to withdraw his complaints against Defendant and that he did so
out of fear for his safety. (Id.)
The question whether a prison official "called an inmate a
`snitch' in the presence of other inmates is `material' to a
42 U.S.C. § 1983 claim for denial of the right not to be subjected
to physical harm by employees of the state acting under color of
law." Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir.
1988). A prison officer may violate an inmate's constitutional
rights by labeling him a "snitch" to other inmates out of
retaliation for filing grievances. Id. at 1138. The question of whether Defendant labeled Plaintiff as a
"snitch" to other inmates is a genuine issue of fact. The
documents provided by Plaintiff in his Separate Statement of
Uncontroverted Facts and Conclusions of Law, along with the
Declaration of Correctional Officer L. Villa, demonstrate the
existence of a dispute over whether Defendant Villa targeted
Plaintiff for retribution by identifying him as a "snitch."
Moreover, documents provided by Plaintiff alone show that there
is a genuine issue of fact. Specifically, Exhibit C of
Plaintiff's Separate Statement of Uncontroverted Facts and
Conclusions of Law, a Rules Violation Report, shows that
Defendant denies speaking with other inmates regarding
Plaintiff's complaints. Additionally, Defendant denies
identifying Plaintiff as a snitch in his Declaration. The Rules
Violation Report only shows that Plaintiff accused Defendant of
speaking with other inmates to get Plaintiff to drop his
complaints. Viewing the evidence in the light most favorable to
Defendant, it cannot be said that there is not a material fact at
issue. Accordingly, summary judgment is not appropriate.
C. Right to File Grievances
Plaintiff claims that Defendant violated his First Amendment
right to file prison grievances by labeling Plaintiff a "snitch."
(Motion for Summary Judgment at 10.) Specifically, Plaintiff
claims that by calling him a "snitch," Defendant caused "inmate
gang members" to force Plaintiff to drop his complaints. (Id.)
Thus, Plaintiff contends that he dropped his complaints against
Defendant out of fear for his safety.
The Constitution provides protections against "deliberate
retaliation" by prison officials against an inmate's exercise of
his right to petition for redress of grievances. Soranno's
Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).
Because retaliation by prison officials may chill an inmate's
exercise of his legitimate First Amendment rights, such conduct
is actionable even if it would not otherwise rise to the level of
a constitutional violation. Thomas v. Carpenter, 881 F.2d 828,
830 (9th Cir. 1989).
Although it is clear that Plaintiff has a right to file prison
grievances, he has not shown that his First Amendment rights were
violated. Plaintiff claims that "here it is undisputed that [he]
had to withdraw his grievance . . . against the Defendant because
the Defendant labeled [him] a `snitch' in front of inmate gang
members and that these inmates forced Plaintiff to withdraw his
grievance against Defendant." (Motion for Summary Judgment at 10.) Contrary
to Plaintiff's assertion, his allegations are not undisputed.
Plaintiff is simply making an allegation and does not establish
his accusations as true. Rather, based on the evidence presented
by both parties, whether Defendant identified Plaintiff as a
"snitch" and whether certain "inmate gang members" forced
Plaintiff to withdraw his complaints are disputed issues.
Accordingly, summary judgment is inappropriate.
D. Fourteenth Amendment Claim
Plaintiff contends Defendant violated his rights under the
Equal Protection Clause of the Fourteenth Amendment by calling
Plaintiff a "nigger," by denying him a shower because of his
medical disability, by singling Plaintiff out as an African
American, and by labeling him a "snitch." In his declaration,
Defendant denies doing any acts in violation of Plaintiff's
rights. Plaintiff offers Defendant's responses to his requests
for admissions, Plaintiff's complaint, Defendant's answer,
Plaintiff's declaration, and the declarations of three other
inmates to establish that Defendant violated his rights under the
When an equal protection violation is alleged, the plaintiff
must plead facts to show that the defendant "acted in a
discriminatory manner and that the discrimination was
intentional." FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir.
1991) (citations omitted); Reese v. Jefferson School Dist. No.
14J, 208 F.3d 736, 740 (9th Cir. 2000). "`Discriminatory
purpose' . . . implies more than intent as 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." Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).
Although Plaintiff points to Defendant's responses to his
request for admissions and Defendant's answer to establish that
Defendant violated his constitutional rights, there is nothing in
either document indicating that Defendant admits to
discriminatory conduct. Moreover, Defendant's declaration
suggests the opposite. Defendant claims that he has not done any
acts in violation of Plaintiff's constitutional rights. Plaintiff
also offers his compliant, his declaration, and the declaration
of three other inmates to establish a Fourteenth Amendment
violation. Although these documents allege that Defendant
discriminated against Plaintiff, based on Defendant's
declaration, the facts are in dispute. This Court may not make credibility
determinations on a motion for summary judgment. Further, the
inferences to be drawn must be viewed in the light most favorable
to the nonmoving party. Anderson, 477 U.S. at 255. Accordingly,
this Court denies Plaintiff's motion for summary judgment.
E. Qualified Immunity
Plaintiff contends that Defendant is not entitled to qualified
immunity because Defendant's conduct violated a clearly
established constitutional right. Moreover, Plaintiff argues that
a reasonable officer would have known that "filing a disciplinary
rules violation against Plaintiff for the exercise of his
Constitutional rights, that labeling Plaintiff a `snitch' in
front of inmate gang members, and interfering with and denying
him the right to petition the grievance was unlawful." Defendant
contends that Plaintiff has not shown that Defendant is not
entitled to seek qualified immunity. Further, Defendant argues
that he should be allowed to assert qualified immunity by
bringing his own motion for summary judgment.
Qualified immunity shields government officials performing
discretionary functions from liability for civil damages unless
their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have
known. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
"Qualified immunity is `an entitlement not to stand trial or face
the other burdens of litigation.'" Saucier v. Katz,
533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). The privilege is "an immunity from suit rather than a
mere defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to
trial." Mitchell, 472 U.S. at 526.
"A court required to rule upon the qualified immunity issue
must consider, then, this threshold question: Taken in the light
most favorable to the party asserting the injury, do the facts
alleged show the officer's conduct violated a constitutional
right? This must be the initial inquiry." Saucier,
533 U.S. at 200 (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). "If
no constitutional right would have been violated were the
allegations established, there is no necessity for further
inquiries concerning qualified immunity." Id. "On the other hand, if a violation could be made out on a
favorable view of the parties' submissions, the next, sequential
step is to ask whether the right was clearly established. This
inquiry, it is vital to note, must be undertaken in light of the
specific context of the case, not as a broad general
proposition." Id. Thus, "the right the official is alleged to
have violated must have been `clearly established' in a more
particularized, and hence more relevant, sense: The contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right."
Id. (citing Anderson, 483 U.S. at 640). "The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted."
Id. (citing Wilson v. Layne, 526 U.S. 603, 615 (1999) ("[A]s
explained in Anderson, the right allegedly violated must be
defined at the appropriate level of specificity before a court
can determine if it was clearly established.").
This Court must first consider whether the facts, taken in the
light most favorable to the Plaintiff, establish that his
constitutional rights were violated. Here, the right to file
prison grievances, and to be free from discrimination and
retaliation, are clearly established constitutional rights.
However, the facts alleged by Plaintiff do not establish that
Defendant violated those rights. The facts presented by Plaintiff
at a minimum show that there is a dispute over whether Defendant
filed a disciplinary rules violation against Plaintiff out of
retaliation. Specifically, the Rules Violation Report offered by
Plaintiff does not show that Defendant's actions did not have a
legitimate penological interest. Rather, it shows that Plaintiff
was in fact found to have not followed a direct order.
Accordingly, there are still triable issues of fact as Plaintiff
has not met his burden of establishing that his constitutional
rights were violated, and summary judgment is not appropriate.
Defendant urges that he should be allowed to assert qualified
immunity by bringing his own motion for summary judgment on that
and all other applicable grounds. This Court notes that Defendant
has failed to file a timely motion for summary judgment, and has
thus waived his right to do so. Further, this Court previously
denied Defendant's request, based on his counsel's representation
of a heavy caseload, for an extension of time to file a
cross-motion for summary judgment. In an order dated September
26, 2005, this Court stated that it could not find good cause for
extending the time to file the motion premised on the fact that
Defendant's counsel was working on every other pending case but this one. Again, this Court
cannot find good cause to allow Defendant to bring a late motion
for summary judgment.
Plaintiff contends sanctions should be imposed against
Defendant's counsel pursuant to Federal Rule of Civil Procedure
11 for causing unnecessary delay and increasing the cost of
litigation. Specifically, Plaintiff urges that defense counsel
misled the Court and Plaintiff by requesting an extension of
pretrial deadlines so that defense counsel could depose Plaintiff
and submit expert reports. Plaintiff claims that Defendant's
counsel unnecessarily delayed litigation because, although
Defendant's counsel requested the extension, he never took
Plaintiff's deposition or submitted expert reports. Defendant's
counsel contends that sanctions are not warranted because he did
not violate any court orders in seeking extensions of time.
Federal Rule of Civil Procedure 11 prohibits lawyers from
filing papers with the court that are: (1) "presented for any
improper purpose, such as to harass or to cause unnecessary delay
or needless increase in the costs of litigation," or (2) not
"warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law." Fed.R.Civ.P. 11(b)(1)-(2); United
Nat. Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1115 (9th Cir.
"Rule 11 . . . imposes an objective standard of reasonable
inquiry which does not mandate a finding of bad faith." Chambers
v. NASCO, Inc., 501 U.S. 32, 47 (1991); G.C. & K.B.
Investments, Inc. v. Wilson, 326 F.3d 1096, 1110 (9th Cir. 2003)
("As with frivolous pleadings, whether a paper is filed for
improper purpose is tested by objective standards.") (quotations
omitted). The subjective intent of counsel is of no importance.
Instead, the court applies a reasonable person standard. G.C. &
K.B. Invs., Inc., 326 F.3d at 1109 ("The `reasonable man'
against which conduct is tested [for purposes of Rule 11] is a
competent attorney admitted to practice before the district
court."). It is important to note that the court "should impose
sanctions on lawyers for their mode of advocacy only in the most
egregious situations, lest lawyers be deterred from vigorous
representation of their clients." R&D Latex Corp.,
242 F.3d at 1115. In the present case, Defendant's counsel submitted an
application for extension of time of the remaining pretrial
deadlines. In this application and at the Mandatory Settlement
Conference held on January 21, 2005, Defendant's counsel
represented that additional time was needed to complete expert
discovery and to conduct Plaintiff's deposition. Plaintiff made
no objections to the request. Accordingly, the Court found good
cause to grant Defendant's request. Plaintiff also contends that
Defendant's counsel contacted him well after the point of
discovery cut-off to request additional time to conduct further
discovery. Plaintiff declined defense counsel's request. Although
Defendant's counsel may not have deposed Plaintiff or submitted
an expert report, the Court does not find this conduct so
egregious as to warrant sanctions. Plaintiff did not object to
defense counsel's request for an extension of the remaining
pretrial deadlines and declined to stipulate to additional time
for discovery when contacted via telephone by defense counsel.
Accordingly, Plaintiff's request for sanctions is DENIED.
After thorough review of the record in this matter and based on
the foregoing analysis, IT IS RECOMMENDED:
1. Plaintiff's Motion for Summary Judgment be DENIED.
2. Plaintiff's Motion to Sanction Defendant's Counsel be
This report and recommendation of the undersigned Magistrate
Judge is submitted to the United States District Judge assigned
to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)
IT IS HEREBY ORDERED that no later than December 9, 2005, any
party may file and serve written objections with the Court and
serve a copy on all parties. The document should be captioned
"Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be
filed and served no later than December 30, 2005. The parties
are advised that failure to file objections within the specified time may waive the right to raise those objections on
appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153
(9th Cir. 1991).
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