FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with several civil claims brought pursuant to 42 U.S.C. § 1983, the Religious Land Use and Institutionalized Persons Act (RLUIPA), and state law. Before the court is a motion for summary judgment brought by counsel on behalf of defendant Brian Glenn. The motion seeks summary judgment in defendant's favor with respect to plaintiff's claim that defendant Glenn denied him three phone calls as required by California Penal Code § 851.5(a) in violation of plaintiff's right to due process of law under the Fourteenth Amendment. Plaintiff seeks $10,000 in compensatory damages for punishment and emotional injury resulting from the denial of due process.
I. Summary Judgment Standard 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 December 8, 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); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). II. Plaintiff's Allegations
In his verified complaint, signed under the penalty of perjury, plaintiff alleges that defendant Glenn violated his rights to due process under the Fourteenth Amendment while plaintiff was incarcerated as a pretrial detainee at the Solano County Jail (hereinafter "County Jail"). (Compl. at 6: 16-19.) At the time of the alleged incident, defendant Glenn was a correctional officer at the County Jail. (Id. at 5.) Specifically, plaintiff claims that while being processed into the County Jail he requested, but was denied the use of, a properly working telephone as required by California Penal Code § 851.5(a).*fn1 (Id.) Plaintiff claims to have "repeatedly requested to use a phone and defendant Glenn would either ignore my requests or tell me to shut up." (Id.)
III. Defendant's Arguments
A. No Evidence Exists That Defendant Violated Plaintiff's Rights
Counsel on behalf of defendant Glenn concedes that, the Supreme Court has "repeatedly held that state statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment." Vitek v. Jones, 445 U.S. 480, 488 (1980). The Ninth Circuit has held that California's statute providing an arrested person with the right to make at least three completed telephone calls creates such a liberty interest. Carlo v. City of Chino, 105 F.3d 493, 500 (9th Cir. 1997), cert. denied, 523 U.S. 1036 (1998). By violating the California statute, an officer violates an arrestee's constitutional right to due process. (Id.)
(Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. at 5-6.) Therefore, if defendant Glenn is found to have violated California Penal Code § 851.5 with regard to plaintiff, then a violation of plaintiff's right to due process is implicated.
In support of his motion for summary judgment defendant Glenn argues that "there is no evidence that [defendant] violated [plaintiff's] right to due process because there is no evidence that [defendant] violated § 851.5." (Id.) In this regard, defendant cites two uncontested facts in support of his argument: that signs were prominently posted informing newly arrived jail inmates of their rights to free local telephone calls and that plaintiff was placed in a holding cell within three hours of his arrest, after the booking process was complete, that was equipped with a telephone. (Id.) These undisputed facts, however, do not address plaintiff's contentions that the telephone in his cell was not working, that defendant Glenn denied plaintiff's requests to use ...