ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's amended complaint, filed June 15, 2005. Broadly construed, plaintiff's amended complaint has two claims: that defendants Jackson and Wagner interfered with plaintiff's right to access the courts by refusing to process plaintiff's inmate grievances concerning his request to create a chess club and to publish a chess newsletter at High Desert State Prison (High Desert), and that defendants violated his rights under the First Amendment in connection with plaintiff's efforts to create the chess club and to publish the chess newsletter. This matter is before the court on cross-motions for summary judgment pursuant to Fed. R. Civ. P. 56.
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 31, 2005, 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), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
On October 7, 2004, plaintiff filed an inmate grievance against the prison employee at High Desert who was responsible for all officially sanctioned inmate tournaments at the prison. In the grievance, plaintiff alleged that the coach had made a "unilateral choice" to deny plaintiff "the right to create a chess bulletin, chess newsletter, and chess materials to be published by a prisoner." Ex. A to Complaint, filed February 18, 2005, at 3. Plaintiff requested a meeting with "the institution head to go over the plans" that he had for a chess newsletter and running chess matches on the yard at High Desert. Id. On October 12, 2004, defendant Wagner screened out plaintiff's appeals as an abuse of the appeals process, on the grounds that plaintiff (1) had "not reasonably demonstrated that [the] appeal issue(s)" had adversely affected his welfare; and (2) the appeal was a request for information, not an appeal. Id. at 2. Accompanying the latter reason were instructions to use a "form GA-22, Inmate Request for Interview." Id. On or about October 18, 2004, plaintiff filed another appeal concerning the same subject; that appeal was rejected by defendant Jackson for the same reasons given by defendant Wagner. Defendants' Ex. D, filed November 6, 2008, at 113-114. Defendant Runnels never received any correspondence from plaintiff concerning a request to publish a chess newsletter. See Declaration of D. Runnels, filed November 6, 2008.
In his motion for summary judgment, plaintiff contends that (1) the manner in which his grievance was processed interfered with his ability to exhaust administrative remedies and, therefore his right to access the courts; (2) defendants are not allowing plaintiff to publish a chess newsletter; and (3) defendant Runnels is liable for violations of plaintiff's right to due process once he was placed on notice of the alleged violations.*fn1 Defendants seek summary judgment on the grounds that (1) neither of them tried to prevent plaintiff from publishing a chess newsletter; and (2) neither of them caused plaintiff any constitutional injury because plaintiff ...