ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action. Defendants Armoskus, Boitano, Brown, Cobb, Cox, Dreith, Eder, Felker, Fleming, Kopec, McCraw, Miranda, Platt, Vanderville, Wong and Wright have filed a motion for summary judgment.*fn1 Defendant Rohlfing has filed a separate motion for summary judgment and a motion to strike plaintiff's surreply. Throughout these findings and recommendations, the court will refer to the documents by docket number and appropriate exhibit designation. When an exhibit consists of multiple pages, the court will rely on the Bates-stamped page numbers assigned by the parties or by the numbers assigned by the CM-ECF system, when the parties have not paginated the exhibits. According, defendant Rohlfing's motion for summary judgment is docket no. 186.
The motion for summary judgment filed by Armoskus, Boitano, Brown, Cobb, Cox, Dreith, Eder, Felker, Fleming, Kopec, McCraw, Miranda, Platt, Vanderville, Wong, and Wright is comprised of docket nos. 188 through193-2, which includes various subparts. Plaintiff's opposition to the motion for summary judgment is comprised of docket nos. 223 through 223-8. Defendant Rohlfing's reply is docket no. 224; the other defendants' reply is docket no. 225. Plaintiff's surreply is docket no. 226. Defendant Rohlfing's motion to strike is docket no. 227.
Plaintiff has not provided sufficient information to allow the Marshal to effect service on defendants Lopez and Mericle, for whom the court found service appropriate. See Docket Nos. 89, 95, 98, 141, 151. Dismissal of the action as to defendants Lopez and Mericle is therefore appropriate. Fed. R.Civ. P. 4(m).
Defendants object to plaintiff's exhibits attached to his opposition to the motions for summary judgment on the ground that the exhibits are largely irrelevant and are not certified or otherwise authenticated. Docket No. 224 at 2; Docket No. 225 at 2.
A court may consider only admissible evidence in ruling on a motionfor summary judgment. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
Authentication is a "condition precedent to admissibility," and this condition is satisfied by "evidence sufficient to support a finding that the matter in question is what its proponent claims. Fed. R. Evid. 901(a) . . . [U]nauthenticated documents cannot be considered in a motion for summary judgment.
Id.; Hal Roach Studios v. Richard Feiner and Company, Inc., 896 F.2d 1542, 1550 (9th Cir. 1989) Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir.1987) (unauthenticated documents may not be relied upon to defeat a motion for summary judgment).
Plaintiff's attempts to authenticate a variety of incident reports and medical records through a his declaration is unavailing: "A document can be authenticated [under Rule 901(b)(1)] by a witness who wrote it, signed it, used it, or saw others do so." Orr, 285 F.3d at 774 n.8; Docket No. 223 at 103-105.
Nevertheless, to the extent that plaintiff relies on prison medical records which have been submitted in properly authenticated form by defendants, the court will rely on them. Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1550-51 (9th Cir.1990) (use of unauthenticated documents was harmless error where both sides relied on the same documents and one side had authenticated the documents). Moreover, to the extent that records from plaintiff's central file and medical records may be authenticated as provided by Federal Rule of Evidence 901(b)(3) &(4), the court will consider them. In resolving these motions, the court will cite only those documents it finds to be properly authenticated, whether offered by plaintiff or the defendants. Moreover, the court will not rely on those portions of any declarations not based on the affiant's personal knowledge and do not contain hearsay.
As both defendant Rohlfing and the grouped defendants have observed, plaintiff has filed over 700 pages in opposition to the two motions for summary judgment and has done little to point the parties and the court to those portions of the exhibits relevant to the particular claims. For example, plaintiff refers the reader to an exhibit A; exhibit A, however, is ninety pages long. It is not the court's "obligation to mine the full record . . ." to find the exact portion of each lengthy exhibit which supports plaintiff's argument. Schneider v. TRW, Inc., 938 F.2d 986, 990 n.2 (9th Cir. 1991). Nevertheless, the court has reviewed the exhibits and in the following discussion of the merits of the motion will identify those portions it finds to be adequately authenticated or otherwise in compliance with the requirements of Rule 56.
Moreover, much of plaintiff's evidentiary support is simply not relevant to the issues at hand. Although plaintiff explains that some of the unauthenicated outside medical records are offered to show a preexisting back injury which, he claims, was aggravated, or to demonstrate his long-standing eye problems and sensitivity to the light, these records have minimal relevance to a determination whether particular actions resulted in a denial of medical care or whether bright lights during a particular time-frame caused plaintiff pain. The defendants do not contest plaintiff's underlying medical conditions.
By way of further example, sixty pages of Docket No. 223-4, Ex. B-1, are handwritten copies and photocopies of sections of the California Penal Code, Title 18 of the United States Code, and the Bill of Rights. Thirty two pages of Docket No. 223-3, Ex. A-6, are portions of Title 15 of the California Code of Regulations, governing the prisons. Under Local Rule 5-133(j), it is necessary to attach copies of cases or statutes only when those authorities have not been published, reported or codified; the authorities plaintiff has provided are easily available. Plaintiff has neither explained why he has attached these materials nor referred to them in his points and authorities.
Another forty-five pages of material relate to an incident in 1996, when prison officials confiscated a business plan plaintiff had prepared in an attempt to launch a business selling tee shirts and sweatshirts. Docket No. 223-6, Ex. B at 7-52. Plaintiff has not clearly explained the relevance of these materials to the resolution of the issues presented in the summary judgment motions
In the order lifting the previously imposed page limits to allow plaintiff to file a lengthy opposition, the court warned plaintiff that this did not give plaintiff license to file irrelevant materials. Docket No. 213. Plaintiff will be given the opportunity to explain why he should not be subject to sanctions for failure to observe the court's prior warning.
Defendant Rohlfing has filed a motion to strike plaintiff's surreply to the replies to the opposition to the motions for summary judgment.
When a party has raised new arguments or presented new evidence in a reply to an opposition, the court may permit the other party to counter the new arguments or evidence. El Pollo Loco v. Hashim, 316 F.3d 1032, 1040-41 (9th Cir. 2003). Defendants' reply does not present new arguments nor new evidence; they simply note the problems with plaintiff's evidentiary support. The surreply is improper.
III. Summary Judgment Standards Under Rule 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On August 17, 2006, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Because of the number of defendants and claims joined in this litigation, the court will not provide a single statement of undisputed facts but rather will address the facts and law relating to the discrete claims in separate sections of this document.
IV. The Incident Of October 29, 2001
On October 29, 2001, plaintiff hurt his back while exercising on the yard; with the assistance of two other inmates, he made it to a bench by the yard gate. Am. Compl. ¶ 51.*fn2
When clinic personnel were ready to examine plaintiff, defendant McGraw had two inmates help plaintiff to the clinic because plaintiff claimed he could not walk. Docket No. 193-2, Ex. F at 2. (Declaration of K. McCraw); Docket No. 223, Ex. A at 72 (Declaration of James Wilson); Docket No. 223, Ex. A at 73 (Declaration of Michael Thomas). Plaintiff was laid on a bench, while he waited to be examined. Am. Compl. ¶ 51. However, when Dr. Mericle asked him to stand to be examined, plaintiff responded that he just needed some muscle relaxers and a week-long lay-in. Docket No. 193, Ex. B-1 at 4 (medical progress note). Plaintiff then said he could not stand. Dr. Mericle did not observe signs of chronic pain. Docket No. 193, Ex. B-1 at 4.*fn3
When defendants McCraw and Eder arrived at the clinic in a response to a call from clinic personnel, plaintiff was yelling obscenities at the medical staff and asking for pain pills. Docket No. 193-2, Ex. G ¶ 2 (Declaration of J. Eder); Docket No. 223, Ex. A at 104 ¶ 7 (Declaration of John Jordan). Plaintiff refused to identify himself to Eder, but instead let out a piercing whistle. Docket No. 193-2, Ex. G ¶ 2. Eder told plaintiff he could have to leave the clinic, but plaintiff began to whistle loudly and yell. Docket No. 193-2, Exs. Ex. F ¶ 4 & G ¶ 2; Docket No. 193, Ex. B-1 at 4. McCraw reiterated that plaintiff would be handcuffed and returned to his cell. Docket No. 193-2, Exs. F ¶ 4 & G ¶ 3. Plaintiff refused to stand up. Id. Eder and McCraw took plaintiff by the arms and dragged him part of the way or the entire way to a wheelchair. Compare Docket No. 223, Ex. A at 104 ¶¶ 8-9 (plaintiff avers he did not sit or stand and was dragged to the wheelchair) with Docket No. 193-2, Ex. F ¶ 4 (plaintiff sat up to be handcuffed and supported himself briefly, then went limp and so officers dragged him) and Docket No. 193, Ex. B-1 at 4 ("he was sitting flexed very well, showing no sign of back spasm, showing good ROM").
When they reached the cell, plaintiff said he could not stand, so Eder and McCraw took his arms, lifted him to his feet, dragged him from the wheelchair and lowered his chest onto his bunk and his knees on the floor. Docket No. 193-2, Exs. F ¶ 5 & G ¶ 4; Docket No. 223, Ex. A at 104 ¶ 10.*fn4
Plaintiff avers that this treatment aggravated his preexisting back injury, rendering him unable to move without assistance for several days after the incident and causing him to suffer ...