FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. In his amended complaint, he alleged that defendants Levan, Burchfield, Mineau and Taylor, all employees of the California Department of Corrections and Rehabilitation (CDCR), improperly classified him as "Mexican" when they knew his ethnicity should have been listed as "other" because he is Cuban. He further alleged that the improper classification places him in jeopardy because the "black inmates and Mexican inmates, prison gang members as well as his own ethnicity inmates, all will retaliate upon him." Amended Complaint (Am. Compl.) at 5(A).
On January 7, 2008, defendants Levan, Burchfield and Mineau filed a motion for summary judgment on the merits, while defendant Taylor sought summary judgment on the ground that plaintiff had not exhausted his administrative remedies as to her. Docket No. 26. This court recommended that summary judgment be granted as to Levan, Burchfield and Mineau and denied as to Taylor. Docket No. 41. The district court adopted these recommendations and granted defendant Taylor's request to file a renewed motion for summary judgment. This motion is now before the court.
I. 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 May 7, 2007, 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), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Plaintiff entered the state prison system on July 28, 2005, accompanied by a probation report, which identified him as "Hispanic." Declaration of K.J. Anderson (Anderson Decl.) ¶¶ 4, 6-7 & Ex. B. Prison officials at North Kern State Prison (NKSP) Reception Center used this information to identify plaintiff as Mexican. Id. ¶ 7. Plaintiff's ethnicity as "Mexican" was entered into his central file and in OBIS, an electronic database that maintains information about CDCR inmates. Id. This information also was included on the CDC-135 Transfer Order that accompanied plaintiff from NKSP to Folsom State Prison (FSP) in September 2005, at which point he was issued an i.d. card saying he was Mexican, even though he "told them three times" he was Cuban. Declaration of J. Mineau (Mineau Decl.) ¶¶ 6, 9 & Ex. A; Deposition of Luis Armentero (Armentero Depo.) at 11:13-12:4; Anderson Decl. ¶ 13 & Ex. A.
Plaintiff appeared before a classification committee for initial review on September 21, 2005 and was released to the general prison population. Anderson Decl. ¶¶ 17-20.
In October, plaintiff sent three requests for a meeting with his correctional counselor, defendant Taylor. Armentero Depo. at 24:5-6, 30:4-5; Am. Compl. at 5A. In one request, plaintiff asked to review his central file--an "Olsen" review"--and in two other requests he asked for an interview for "change of ethnicity" without further elaboration. Armentero Depo. at 29:24-30:6, 32:15-17; Original Complaint (Docket No. 1) at 26-28*fn1 (request for interview forms). Defendant Taylor never called plaintiff into her office. Armentero Depo. at 29:4-5, 30:4. Taylor did maintain office hours, but plaintiff claimed that "most times she never was ...