The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS (Doc. 37) OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Arthur Robles ("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 proceeds on Plaintiff's original complaint, filed on November 22, 2006. (Doc. #1.) On August 24, 2009, Defendants filed a motion for summary judgment. (Doc. #37-45.) On September 28, 2009, Plaintiff filed an opposition. (Doc. #47.) For the reasons stated below, the Court finds that Defendants are entitled to qualified immunity and recommends that their motion for summary judgment be granted.
I. Motion for Summary Judgment
A. Summary Judgment Legal Standards
Defendants argue that they are entitled to summary judgment because they are entitled to qualified immunity and because Plaintiff has not exhausted his administrative remedies before filing suit. A defending party may move for summary judgment on all or part of a claim. Federal Rule of Civil Procedure 56(b). A party moving for summary judgment is entitled to judgment in their favor if they demonstrate that there is no genuine issue as to any material fact and they are entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). The moving party "bears the initial responsibility of informing the . . . 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).
Defendant's evidence in support of their motion for summary judgment includes an authenticated copy of a request for admissions, sent to Plaintiff on May 11, 2009. (Decl. of David L. Herman in Supp. of Defs.' Mot. for Summ. J., Ex. B.) Plaintiff did not respond to Defendants' request for admissions. Federal Rule of Civil Procedure 36(a)(3) provides that "[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." Federal Rule of Civil Procedure 36(b) provides that "[a] matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended." "Unanswered requests for admissions may be relied on as the basis for granting summary judgment." Conlon v. U.S., 474 F.3d 616, 621 (9th Cir. 2007) (citing O'Campo v. Hardisty, 262 F.2d 621, 624 (9th Cir. 1958)).
Some of the facts deemed to be admitted in Defendants' favor by operation of Rule 36 are inconsistent with the facts alleged by Plaintiff in his complaint. For example, Plaintiff alleges in his complaint that all three defendants slammed Plaintiff to the ground, causing injury. (Compl. 3.) Defendants requested that Plaintiff admit that he was not thrown to the floor by Defendants, and to admit that he did not suffer any physical injuries while being removed from his cell on December 23, 2005. (Decl. of David L. Herman, Ex. B at 6.) Although the admissions are inconsistent with the allegations in Plaintiff's complaint, which Plaintiff presumably has personal knowledge of and could testify to, Plaintiff cannot rebut a Rule 36 admission with evidence that is inconsistent with the admission. 999 v. C.I.T. Corp., 776 F.2d 866, 869-70 (9th Cir. 1985).
Rule 36(b) provides that matters admitted under Rule 36(a) can be withdrawn. However, Rule 36(b) expressly states that it only operates "on motion" by a party. Plaintiff has not moved to have the admissions withdrawn. Thus, the Court will not sua sponte withdraw Plaintiff's admissions. The matters addressed in Defendants' request for admission will be deemed admitted by Plaintiff for the purpose of ruling on Defendants' motion for summary judgment.
Further, Local Rule 260(b) provides:
Any party opposing a motion for summary judgment . . . shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.
Plaintiff's opposition did not reproduce Defendants' Statement of Undisputed Facts and did not deny any of the facts that Defendants present as undisputed. Plaintiff's opposition does not otherwise challenge Defendants' version of the facts.
The Court treats Defendants' version of the facts as undisputed:
1. On December 23, 2005, Plaintiff was incarcerated in the Madera County jail.
2. Plaintiff was housed in Module "E", a housing module used for inmates who are violent, escape risks, or otherwise noncompliant with jail rules.
3. Plaintiff was housed in Module E due to a history of assaulting correctional officers, using profanity, making sexual gestures toward female officers, breaking windows and fire sprinklers, flooding his cell, possessing and consuming illegal inmate-manufactured alcohol ...