The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P.56(c) [Doc. No. 37]
Arthur Baker ("Plaintiff"), a state prisoner currently incarcerated at Calipatria State Prison located in Calipatria, California, is proceeding pro se and in forma pauperis with a First Amended Complaint ("FAC") filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983.
Currently pending before the Court is Defendants Williams, Jimenez, Hughey, Tamayo and Stratton's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 37].
II. PROCEDURAL BACKGROUND
Defendants Williams, Jimenez, Hughey, Tamayo and Stratton move for summary judgment on the grounds that: (1) no genuine issues of material facts exist to show that they violated Plaintiff's Fourteenth Amendment due process or equal protection rights; (2) no genuine issues of material facts exist to show that they conspired to deprive Plaintiff of his civil rights; (3) no genuine issues of material facts exist to support Plaintiff's retaliation claim; and (4) Plaintiff's property claim should be dismissed.
On October 15, 2009, the Court advised Plaintiff of his rights and obligations to oppose Defendants' Motion pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).*fn1 Plaintiff filed his Opposition on January 19, 2010 [Doc. No. 43]. Defendants filed their Reply on January 25, 2010 [Doc. No. 44]. In addition, Plaintiff's First Amended Complaint is verified under penalty of perjury. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (holding that a complaint or motion duly verified under penalty of perjury pursuant to 28 U.S.C. § 1746 may be used as an opposing affidavit under FED.R.CIV.P. 56.).
Having now exercised its discretion to consider the matter as submitted on the papers without oral argument pursuant to S.D. CAL. CIVLR 7.1.d.1, the Court hereby GRANTS Defendants Williams, Jimenez, Hughey, Tamayo and Stratton's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 for the reasons set forth in detail below.
III. DISMISSAL PURSUANT TO FED.R.CIV.P.4(m)
In the Court's November 26, 2008 Order, Plaintiff was ordered to show cause by January 5, 2009 why the claims against Defendants Crabtree, Leapheart and Ganier should not be dismissed for want of prosecution pursuant to FED.R.CIV.P. 4(m). See Nov. 26, 2008 Order at 16. That time has since passed and Plaintiff has failed to properly effect service on these Defendants. In addition, Plaintiff named Defendant Canada in his original Complaint but failed to name him as a Defendant in his First Amended Complaint. Thus, the claims against Defendant Canada are deemed waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
Defendants Crabtree, Leapheart, Ganier and Canada are hereby DISMISSED from this action and the Clerk of Court is directed to enter judgment for these Defendants.
IV. PLAINTIFF'S FACTUAL ALLEGATIONS*fn2
Plaintiff was first housed at Calipatria State Prison ("CAL") on October 31, 2001. (See FAC at 5.) At the time he was incarcerated at CAL, prison officials noted in his classification records that he was not, nor had he ever been, affiliated with a prison gang. (Id.) On April 27, 2005, Plaintiff was arrested by officers with the "Investigative Security Unit." (Id.) Sergeant Crabtree read Plaintiff his Miranda rights and told Plaintiff that he had been arrested for attempted murder on a peace officer arising from an attack on Officers Hughey, Steele and Lewis which occurred on April 25, 2005. (Id.) Sergeant Crabtree told Plaintiff that members of the "Crips" gang were believed to be responsible for the attack. (Id.) Plaintiff informed Sergeant Crabtree that he played no role in these attacks. (Id.)
Plaintiff alleges that because Sergeant Crabtree was "angry" about the attack on the fellow officers, he retaliated against Plaintiff by placing him in a small metal "cage" which was designed to prevent a person from sitting down. (Id.) Accordingly, for nearly eight hours Plaintiff claims to have suffered "pain and swelling in his feet, ankles, knees, hips, spine, wrist and shoulders, from the inability to sit inside the cage." (Id.) Defendant Crabtree allegedly stated "you want to whine after attacking my officers . . . you deserve more pain than that." (Id. at 6.) After approximately eight hours, Plaintiff was transferred to the administrative segregation unit. (Id.) He was again placed in a small metal cage. (Id.) Plaintiff claims he pleaded for help from correctional officers when his was no longer able to support his ...