FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. He alleges that defendants Cook, Baughman, Sisto, Dennis and Fickling were deliberately indifferent to his mental health needs when they revoked a chrono for single-celling and placed him in a double cell and defendants Adams and Trullinger were deliberately indifferent to his safety when they refused to remove him from this double cell. When he was double-celled with another inmate, named Crawford, Crawford attacked him and injured his head. Defendants have filed a motion for summary judgment. Plaintiff has filed an opposition, and defendants a reply.
The court found service of the complaint appropriate for Runnels, Cook, Baughman, Adams, Fickling, Dennis, Sisto and Trullinger. Docket No. 22. Based on the information provided by plaintiff, the U.S. Marshals service was able to serve Runnels, Baughman, Adams, Dennis, Sisto and Trullinger; it was unable to serve Cook and Fickling. Docket Nos. 28, 32, 33, 35. Although plaintiff was given additional time to provide more information to facilitate service on Cook and Fickling, he has not done so. Docket Nos. 26, 36, 42. Accordingly, defendants Cook and Fickling should be dismissed from the action without prejudice. Fed. R. Civ. P. 4(m).
II. Summary Judgment Standards
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 February 8, 2008, 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).
III. Evidentiary Concerns
Defendants argue generally that plaintiff's evidence is not sufficient to defeat summary judgment and argue specifically that some of that evidence, detailed below, is inadmissible. Defs.' Objections to Pl.'s Evidence (Docket No. 57-2) at 2-3.
Plaintiff asserts that the decision to revoke his single cell status was made by Cook and that defendant Dennis's decision was based on Cook's desire to have plaintiff housed in a double cell. He relies on his declaration and his deposition, which recounts Cook's statements. Opposition (Opp'n), Ex. A, Declaration of Edward Malone (Malone Decl.) ¶ 3; Deposition of Edward Malone (Malone Depo.) at 62:1-7. Defendants' objections are well-taken.
Because Cook's statement is hearsay, the court will not consider it on summary judgment. In addition, plaintiff fails to support his conjecture about Dennis's motivation with admissible evidence, so the court will not consider it. Kim v. United States, 121 F.3d 1269, 1276-77 (9th Cir. 1997) (affidavit in opposition to summary judgment must be based on personal knowledge and inadmissible hearsay cannot defeat motion for summary judgment).
B. Defendant Dennis's Duties
Plaintiff disputes Dennis's claim that he was obligated to reevaluate inmate chronos, but plaintiff's reasons are somewhat obscure: he says Dennis "does not qualify this statement with any regulation or relationship with custody staff to refer all inmate[s]for specific reasons as single cell status." Plaintiff's Statement of Undisputed Facts (PSUF) ¶ 7. Defendants object that plaintiff is not qualified to give an opinion on Dennis's duties and on relevance grounds. To the extent the court understands what plaintiff is saying, it does appear he is expressing his own opinion about Dennis's duties; defendant's objection is well taken.
Defendants also object on hearsay grounds to plaintiff's claim that Dennis did not consult the doctor who had written the original single-cell chrono. PSUF ¶ 9. In his declaration, however, plaintiff swears he learned this from Dennis, which means the statement is an admission of a party opponent, which is not hearsay. Fed. R. Evid. 801(d)(2); Malone Decl. ¶ 2. To the extent plaintiff opines that Dennis should have consulted the doctor as a matter of professionalism, defendant's objection is well taken as this statement appears to be expressing an expert opinion without any attempt to demonstrate that plaintiff is qualified to render such an opinion. Fed. R. Evid. 702.
C. Cellmate Crawford's Threats
According to plaintiff, Crawford told staff Crawford was tired of having cellmates and that somebody would get hurt if officials moved plaintiff, or anyone else, into his cell. PSUF ¶ 15; Malone Depo. at 44:17-21. Defendants argue that this statement is hearsay and plaintiff's undisputed fact assumes facts not in evidence, namely defendants were aware of the threats. Both objections are well-taken: plaintiff's account of Crawford's threats constitutes hearsay and there is no ...