The opinion of the court was delivered by: Hayes, Judge
ORDER ADOPTING REPORT MOTION FOR SUMMARY JUDGMENT AND RECOMMENDATION, AND GRANTING DEFENDANTS' (D.E. # 64 & 78)
Pending before the Court is the Report and Recommendation ("R&R") (D.E. # 78) of Magistrate Judge Cathy Ann Bencivengo, filed on July 11, 2006, recommending that Defendants' Motion for Summary Judgment (D.E. # 64) be granted in its entirety. Despite receiving extensions of time,*fn1 Plaintiffs failed to file an opposition to the summary judgment motion and failed to object to the R&R.
The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court must "make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. §636(b)(1). "[A] failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barila v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989). Because a motion for summary judgment raises a purely legal issue, de novo review of the R&R in this case has not been waived by the failure to file objections. See id.
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. When deciding a summary judgment motion, the Court "construes the evidence in the light most favorable to the nonmoving party." Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citation omitted).
Plaintiffs, two prisoners who were cell-mates at the Centinela State Prison ("Centinela" or "prison") from approximately March 2001 to March 2004, brought this action pursuant to 42 U.S.C. § 1983, alleging a denial of their rights to equal protection and due process under the Fourteenth Amendment. Plaintiffs claim Defendants discriminated against them on the basis of their race when, on March 18, 2002, Defendants T. Ryan ("Ryan") and V. Lyles ("Lyles") allegedly required Plaintiffs to shower together in a single-capacity shower because Plaintiffs are African-American. (Second Am. Compl. ¶¶ 14-29, 52.) Plaintiffs also claim Defendants violated their equal protection and due process rights by adopting and enforcing a policy, custom and practice of segregating inmate showers among the various races at Centinela. (Id. ¶¶ 6-8, 37-50, 54, 56.)
At the time in issue, Plaintiffs were cell-mates in the lower tier of Section C of Centinela's Building C-3. (Jackson Dep. at 18-19, 21, 31-33; Smith Dep. at 14-16, 23-25.) Between March 13, 2002 and approximately March 22, 2002, Building C-3 was placed under a "modified program," or "lockdown," which restricts inmate activity for security reasons, in response to an "incident." (Jackson Dep. at 23-24, 27; Smith Dep. at 18-19.) Building C's "Modified Program Status Report," which is issued to inmates, stated that showers were to be conducted as follows: "cell partners together - own tier." (Jackson Dep. at 22-23, 27, 99-100, Ex. E; Smith Dep. at 59-60, Ex. 4.) Sections A and C of building C-3 have one single-capacity shower on both the upper and lower tiers. (Jackson Dep. at 43-44, Ex. D.)
On March 18, 2002, Ryan and Lyles escorted Plaintiffs from their lower-tier, Section C cell to the single-capacity shower in the lower tier of Section C. (Jackson Dep. at 31-33; Smith Dep. at 24-25.) Ryan told Plaintiffs they must shower together in the single-capacity shower. (Jackson Dep. at 46, 50-51; Smith Dep. at 26-27.) When Plaintiffs protested, Ryan told Plaintiffs they would be sent back to their cell without a shower, and she would note in the shower log that they had refused to shower. (Jackson Dep. at 46-47, 52; Smith Dep. at 26-27.) Plaintiffs asked if they could use one of the two double-capacity showers in Section B. (Jackson Dep. at 57; Smith Dep. at 32.) Ryan responded that the shower on the top tier of Section B, which she called the "Black shower," was broken, and the shower on the bottom tier of Section B was the "Hispanic shower." (Jackson Dep. at 57-58; Smith Dep. at 33.) She further explained that she was "just following the institutional modified program" order. (Smith Dep. at 27-28.)
Plaintiffs asked Ryan and Lyles to call a supervising officer, and then Plaintiffs showered in the single-capacity shower. (Jackson Dep. at 59; Smith Dep. at 48-49.) While Plaintiffs showered, Ryan contacted her supervisor, who told her to "follow the modified program order." (Jackson Dep. at 47-49; Smith Dep. at 53-54.) Before Plaintiffs finished showering, or shortly thereafter, "Correctional Sergeant Machado" entered Building C-3 and informed Ryan and Lyles that inmates could not be ordered to shower together in single-capacity showers unless they agreed to do so. (Jackson Dep. at 55; Smith Dep. at 53.)
This incident resulted in Plaintiffs being taunted by some of their fellow inmates. (Smith Dep. at 84-86; Jackson Dep. at 120.)
Plaintiffs instituted this action*fn2 in March of 2003.
"It is well-settled that a plaintiff in a section 1983 action must show: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the claimant of a right secured by the Constitution or federal law." Hammer v. Gross, 884 F.2d 1200, 1203 (9th Cir. 1989) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Defendants do not challenge that they were acting under color of state law. They do, however, ...