The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION FOR SUMMARY JUDGMENT; DENYING LEAVE TO AMEND TO FILE THIRD AMENDED COMPLAINT
Defendant R. Stanifer moves for summary judgment on all claims alleged in Plaintiff Floyd H. Nelson's Second Amended Complaint ("SAC"). Plaintiff Floyd H. Nelson ("Nelson") opposes the motion for summary judgment and separately moves for leave to file a Third Amended Complaint ("TAC") to remove the requests for preliminary and permanent injunctive relief. Defendant opposes the motion to amend the complaint and did not file a reply brief to Plaintiff's opposition to the motion for summary judgment. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court denies the motion for summary judgment and denies Plaintiff's motion to amend the complaint.
Plaintiff brings this civil rights action pursuant to 42 U.S.C. §1983. The SAC alleges that Defendant, the Senior Hearing Officer at Centinela State Prison, denied him his due process rights to call witnesses and present documentary evidence at the time of the September 11, 2002 disciplinary hearing in violation of his due process rights. He also alleges that Stanifer retaliated against him because he had filed two previous inmate complaints against Stanifer. (SAC ¶2).
Prior to the September 11, 2002 disciplinary hearing, Plaintiff filed two previous Form 602 appeals involving Stanifer. On June 9, 2002, Plaintiff filed an inmate appeal challenging Defendant's opposition to Plaintiff's release to the general inmate population. Plaintiff learned that Stanifer had falsely accused him of being a member of the Black Guerrilla Family ("BGF"). (SAC ¶6). Ultimately, on June 16, 2002 Plaintiff withdrew this inmate appeal when he was released into the general prison population. (SAC ¶7). On June 17, 2002 Plaintiff filed another inmate appeal against Defendant alleging that he displayed a 8" X 10" photograph of Plaintiff identifying him as a BGF gang member on the wall of his office for viewing by other inmates. (SAC ¶8). On September 7, 2002 Plaintiff alleges that Defendant made a statement to Plaintiff that the "filing of 602s (inmate appeals) against me (R. Stanifer) will come back to haunt you (Plaintiff) and do more harm to you than good." (SAC ¶9).
By way of further background to the disciplinary hearing, on December 11, 2001 Plaintiff was involved in an altercation with another inmate at the yard at Corcoran State Prison. (Stanifer Decl. ¶6). Plaintiff was found guilty of mutual combat at that hearing. The Investigative Report sets forth the details of the altercation. (Stanifer Decl., Exh. B). Upon Plaintiff's transfer to Centinela State prison, Plaintiff was granted a new hearing, scheduled for September 11, 2002. (Stanifer Decl. ¶5).
Prior to the start of the September 11, 2002 hearing, Plaintiff alleges that Stanifer made further comments of retaliation at the time of the disciplinary hearing. Defendant allegedly told Plaintiff "Remember what I told you the other day about filing 602s against me?," "you are now in my court," "you knew better than to file 602s against me, and "I will demonstrate to you the extent of my authority and the consequences for filing 602s against me." (SAC ¶12). Plaintiff allegedly informed Stanifer that "he was not prepared to proceed with the hearing and attempted to provide defendant Stanifer with a three page document outlining the inadequacies of the investigative employee (IE) report submitted by L. Boos Emma and the evidence needed by Plaintiff to present in defense and/or mitigation of the charge." (SAC ¶12). Plaintiff alleges that he agreed to sign a waiver of the presence of previously requested witnesses at the insistence of Stanifer. "Despite Plaintiff informing defendant R. Stanifer that he was not prepared to proceed, the disciplinary hearing was held." Id. Stanifer would not accept the three page document and Plaintiff alleges that such conduct was in retaliation for Plaintiff's previous filing of inmate complaints. (SAC ¶14). Plaintiff alleges that "the finding of guilty [of mutual combat] came as a direct result of defendant R. Stanifer's failure and refusal to consider and review the three page document." (SAC ¶15). Plaintiff alleges that Defendant Stanifer's conduct in denying him the right to present evidence at the time of the evidentiary hearing violated his due process rights.
On July 28, 2003 Plaintiff filed the original complaint naming 47 Defendants. On October 7, 2003 the court granted Plaintiff's motion to proceed in forma pauperis but dismissed the complaint without prejudice for failure to state a claim. On November 20, 2003 Plaintiff filed a First Amended Complaint ("FAC"), adding six new Defendants. On February 10, 2004 the court dismissed the FAC without prejudice. The SAC only names Stanifer and, on May14, 2004 the court concluded that the SAC survived the screening provisions of 28 U.S.C. §§1915(e)(2)(B) and 1915A with respect to the retaliation claim against Defendant Stanifer. Defendant timely answered the complaint and now moves for summary judgment on this claim.
A motion for summary judgment shall be granted where "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); British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original). The opposing party cannot rest on the mere allegations or denials of a pleading, but must "go beyond the pleadings and by [the party's] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. At 2553 (citation omitted). The opposing party also may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
The court must examine the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt as to the existence of any issue of material fact requires denial of the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment, when "'the moving party bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence were uncontroverted at trial.'" Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (emphasis in original) (quoting International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)).
The basic requirements of due process are the right to notice and the opportunity to be heard "at a meaningful time and in a meaningful manner." Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982). The extent and manner of determining what process is due in any given situation depends on "(1) the private interests at stake; (2) the risk that the procedure used will lead to erroneous results and the probable value of the suggested procedural safeguard; (3) and the governmental interest affected." Little v. Streeter, 452 U.S. 1 (1981); see also Matthews v. Eldridge, 424 U.S. 319, 335 (1976). This "balancing test" determines what the due process clause requires, even ...