The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED AND PLAINTIFF'S ACTION BE DISMISSED WITH PREJUDICE (Doc. 70) OBJECTIONS DUE WITHIN THIRTY DAYS
I. Findings and Recommendation
Thomas Waterbury ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's amended complaint, filed May 9, 2006, against defendants A. K. Scribner, D.D. Sheppard-Brooks, S. Bradley, J. Amerson, V. Castillo, and S. Rodriguez ("Defendants") for violation of Plaintiff's rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment. On January 30, 2009, Defendants filed a motion for summary judgment, after receiving an extension of time. (Doc. 70.) On March 9, 2009, Plaintiff filed an opposition to Defendants' motion, after obtaining an extension of time. (Doc. 74.)*fn1 Defendants did not file a reply to Plaintiff's opposition. The Court deems the matter submitted. L. R. 78-230(m).
B. Summary Judgment Standard
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 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). "[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. 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. 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 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. 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, 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, 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 Motion for Summary Judgment, 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, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). 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. 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 586-87 (citations omitted).
1. Plaintiff was incarcerated at California State Prison - Corcoran (CSP-Corcoran) at times material to the matters at issue following his conviction for murder in the first degree with special circumstances, a jury finding him guilty of murder for monetary gain.*fn3
2. Defendants were employed by the California Department of Corrections and Rehabilitation (CDCR) and assigned to CSP-Corcoran in the following capacities: Defendant Scribner was the Warden; Defendant Sheppard-Brooks was the Chief Deputy Warden; Defendant Castillo was an Appeals Coordinator; Defendant Bradley was a Supervisor in the Accounting Department; and Defendants Amerson and Rodriguez were Account Technicians.
3. In August 1996, Gregory Harding, the Chief Deputy Director of Support Services for CDCR, sent a memorandum to all wardens with the California Prison System, implementing new procedures for processing inmates' tax refund checks. All tax refund checks received by the mail room were to be delivered to the accounting office for the Facility Representative. The Facility Representative was to determine the inmate's eligibility to receive the tax refund. Background research was to be conducted to ascertain the validity of the refund check by certifying whether the refund amount matched the amount of taxes withheld from the inmate's pay, and verifying the inmate's date of incarceration. If eligibility to receive a tax refund could not be established, the Facility Representative was to contact the appropriate agency to establish the validity of the check. Also listed were the agency contacts for the Internal Revenue Service (IRS) and the Franchise Tax Board (FTB).*fn4
4. On September 9, 1996, James Tilton, Deputy Director of the Administrative Services Division, sent a memorandum clarifying what might be considered as a questionable tax refund. Specifically noted was the inmate's date of incarceration. If the inmate was known to have worked prior to incarceration, was receiving a joint tax refund from a spouse, or if CDCR was aware the inmate had taxable prior year income, the Facility Representative should not refer the tax refund check to the IRS. Included were additional telephone numbers for the IRS and FTB.*fn5
5. CDCR issued an administrative bulletin regarding inmate receipt of tax refund checks. According to the bulletin, the Facility Representative was to assist outside agencies in determining an inmate's suitability for receiving a tax refund check. To this end, staff were to contact the IRS Questionable Refund Program Agent or the FTB Fraud and Prevention Unit to determine an inmate's eligibility for a refund.
6. On June 15, 2000, David Tristan, the Deputy Director of Institutions, sent a memorandum to all Wardens. According to the memorandum, the IRS Criminal Investigations Branch had determined that inmate schemes involving fraudulent tax returns resulted in a loss of over a million dollars per year. The IRS requested the assistance of CDCR in identifying and deleting these fraudulent tax returns. Staff were advised that any tax refund check in an amount exceeding $250.00 was to be verified with the IRS prior to being deposited into the inmate's trust account. An inmate's eligibility to receive the check would be verified by the IRS within forty-eight hours. Any check determined to be fraudulent was to be returned to the IRS.*fn6
7. In March 2004, a short memorandum was issued reiterating the procedures for processing an inmate's tax refund checks if the inmate had been incarcerated the entire tax year. In such cases, trust office staff were to contact the IRS.*fn7
8. All prisoner mail is opened by the mail room staff. If the mail room receives a check for an inmate, the mail room staff remove the check and stamp the outside of the envelope with the inmate's name and housing unit on the envelope, and the amount of the check. A copy of the envelope is sent to the inmate. The mail room then logs the information onto a spreadsheet.
9. After the information is logged onto the spreadsheet, a member of the mail room staff brings all checks and money orders, wrapped in the spreadsheet, to the accounting office. An account technician or cashier compares the checks to the entries on the spreadsheet, and if they match, signs the spreadsheet for verification. Tax refund checks are generally placed on a separate spreadsheet.
10. The cashier then makes copies of the checks and money orders, with three items per page, and runs an accounting tape based on the copies of the checks.
11. The accounting office then codes the check for the type of deposit. Certain types of deposits are exempt from restitution. After coding the checks, the cashier then adds the checks again, runs ...