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Portnoy v. City of Davis

October 9, 2009


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



This action, which plaintiffs initiated proceeding pro se, has been referred to the undersigned pursuant to the parties' consent to proceed before a United States Magistrate Judge.

28 U.S.C. §636(c)(2). Previously pending on this court's law and motion calendar for September 24, 2009, was the motion for summary judgment filed August 10, 2009, by defendants City of Davis, Bezuglov, Munoz, and Allen. Plaintiffs have filed an opposition.*fn1 Plaintiff Sergei Portnoy appeared in pro se. Defendants were represented by Susan De Nardo and Amie McTavish.


Plaintiffs Mr. and Mrs. Portnoy filed the amended complaint on September 18, 2008, pursuant to the Civil Rights Act, 42 U.S.C. § 1983, alleging that defendants City of Davis and three of its named police officers*fn2 violated plaintiffs' rights to be free from unreasonable searches, as provided by the Fourth Amendment. The amended complaint avers that on the afternoon of July 19, 2007, three Davis police officers entered plaintiffs' apartment at gunpoint and without a warrant after repeatedly knocking, grabbed, dragged and restrained Mrs. Portnoy, handcuffed and restrained Mr. Portnoy, inspected the upstairs where plaintiffs' children were located, with guns drawn, and then released plaintiffs and left the premises with the only explanation that "they were looking for a women who lived at this address" [Sic]. The amended complaint further alleges that, "after these actions of the police my wife began to loose appetite and weight, the oldest child began to stammer and youngest child did not sleep well and cryed at night. [¶ ] Actions of policemen left bruises on my body and scratches on my hands." [Sic].

The amended complaint also names in the caption state law claims of trespass, assault and battery, and intentional and negligent infliction of emotional distress.*fn3 Plaintiffs seek monetary damages.


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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee note to 1963 amendment). Summary judgment is appropriate "if . . . there is no genuine issue as to any material fact, and . . . the moving party is entitled to judgment as a matter of law." Rule 56(c). Disputed facts must be material (affecting the outcome of the suit under the governing law), and genuine (supported by evidence permitting a reasonable jury to return a favorable verdict). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986).

The moving party:

[A]lways 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, 106 S.Ct. 2548, 2553 (1986) (quoting Rule 56(c)).

The moving party without the burden of proof at trial may rely "solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. (citations omitted.) That party need only point to the absence of a genuine material factual issue, and is not required to produce evidence negating the opponent's claim. Id. at 323-24; Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885, 110 S.Ct. 3177, 3187 (1990).

When the moving party meets its responsibility, the burden shifts to the opposing party. Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. The opposing party then must submit "significant probative evidence" on each element of his claims on which he bears the burden at trial.*fn4 Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994). Unverified denials in pleadings are insufficient. Neither can conclusory statements defeat a properly supported motion. Scott v. Rosenberg, 702 F.2d 1263, 1271-72 (9th Cir. 1983). Rather, specific facts in the form of affidavits or admissible discovery material must be submitted. Rule 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S.Ct. at 1356 n.11.

The opposing party need not conclusively establish any fact. To demonstrate a genuine dispute, however, 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, 106 S.Ct. at 1356 (citation omitted). In other words, the evidence must demonstrate that a trial is required to resolve the parties' differing versions of the truth.

T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

The court believes the evidence of the opposing party, Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, and draws all reasonable inferences in its favor, Matsushita, 475 U.S. at 587, 106 S.Ct. at1356. Nevertheless, inferences are not drawn out of the air, and the opposing party must produce a factual predicate from which to draw an inference. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985).


Plaintiffs' opposition to summary judgment is two pages in length and is merely a bullet point list of arguments. Plaintiffs have not provided declarations or responded to defendants' undisputed facts or presented their own statement of undisputed/disputed facts. Plaintiffs' opposition contains no exhibits or other evidence in support. Plaintiffs do not address the evidence cited in defendants' motion for summary judgment. The opposition contains only conclusory argument which claims that defendants' evidence is unreliable, yet for the most part does not counter the specific issues raised in defendants' brief. Plaintiffs have failed to tender any evidence of specific facts in the form of affidavits, and/or admissible discovery material.

The present opposition brings into focus the Ninth Circuit's conflicting rulings on analysis of pro se oppositions to summary judgment motions. The Ninth Circuit has stated that pro se litigants must follow the same rules of procedure that govern other litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987). As a general rule for ordinary litigants, the judge does not have to scour the record in efforts to find evidence which might defeat summary judgment, i.e., the litigant must supply the needed evidence within the motion or opposition. See Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir.2001) (stating the rule for represented parties: "Other circuits are not unanimous, but Forsberg is both binding on us and consistent with the majority view that the district court may limit its review to the documents submitted for the purposes of summary judgment and those parts of the record specifically referenced therein."); but see Jones v. Blanas, 393 F.3d 918, 922-923 (9th Cir. 2004) ("[b]ecause Jones is pro se, we must consider as evidence in his opposition to summary judgment all of Jones [admissible] ...

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