FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act ("RLUIPA") of 2000. This action proceeds on plaintiff's August 14, 2006 complaint against defendant for violation of the First Amendment and RLUIPA. On April 10, 2009, defendant moved for summary judgment. Plaintiff has opposed the motion and defendant has filed a reply. As explained below, plaintiff has failed to present evidence sufficient to show a genuine issue of material fact and defendant's motion must be granted.
I. 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 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)).
Summary judgment avoids unnecessary trials in cases with no genuinely disputed material facts. See N.W. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). At issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, Rule 56 serves to screen the latter cases from those which actually require resolution of genuine disputes over material facts; e.g., issues that can only be determined through presentation of testimony at trial such as the credibility of conflicting testimony over facts that make a difference in the outcome. Celotex, 477 U.S. at 323.
If the moving party meets its initial responsibility, the opposing party must 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). To overcome summary judgment, the opposing party must demonstrate a factual dispute that is both material, i.e. it affects the outcome of the claim under the governing law, see Anderson, 477 U.S. at 248; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and 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 attempting to establish the existence of a factual dispute that is genuine, 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.
In resolving a 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 December 12, 2006, 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).
The following facts are undisputed unless otherwise noted. At all times relevant to this dispute, plaintiff, who is Jewish, was a state prisoner in the custody of the California Department of Corrections and Rehabilitation, and incarcerated at the California Medical Facility (CMF), where defendant was employed as a Protestant Chaplain. Def.'s Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof ("SUF") 1-3.
On November 9, 2003, plaintiff attended a religious musical event at CMF's Protestant chapel.*fn2 SUF 5. During the service, defendant believed that plaintiff and the inmate seated next to him were engaging in inappropriate sexual conduct, thereby disrespecting the chapel. SUF 7. Defendant told them that their conduct was inappropriate, and ordered them to leave the chapel. SUF 9. However, plaintiff believed he was singled out because of his Jewish faith and because of defendant's mistaken belief that plaintiff was engaged in homosexual conduct. Compl., ¶¶ 3-4. Plaintiff therefore filed an inmate grievance against defendant, but later withdrew the grievance. Id., ¶ 5. Plaintiff and defendant never spoke about this grievance. SUF 15, 16.
On December 9, 2005, at the request of the clerks working in the Protestant chapel, plaintiff started playing the piano at the front of the chapel. SUF 23. Plaintiff did not have defendant's permission to play the piano, nor did defendant's clerks have the authority to give plaintiff permission to play the piano. SUF 24. Defendant heard the piano playing, came out of his office, and told plaintiff to leave the chapel. SUF 25. According to plaintiff, defendant said, "You continue to disrespect this chapel and you are not welcome here! I don't want that stinking Jew in here, and if I see any of the rest of you with him, I'll ban you as well!" Compl., ¶ 6. As plaintiff was leaving, defendant purportedly shouted, "Yeah! Now write that up!," which led plaintiff to believe that defendant was referring to the November 9, 2003 grievance. Id.
On December 20, 2005, between 8:40 a.m. and 8:45 a.m., plaintiff went to see if the Rabbi was in her office, although he did not expect her to arrive until 9:00 a.m. SUF 26, 29. The Rabbi's office is located at the Jewish chapel entrance, in the same hallway and approximately thirty feet away from defendant's office. SUF 19, 26. Inmates are not authorized to loiter in this hallway at any time. SUF 31. Further, inmates are required to obtain an inmate pass from a staff member before moving through the facility. SUF 20. Plaintiff waited for the Rabbi in the hallway outside of her office. SUF 30. Plaintiff did not have an appointment to see the Rabbi that day, nor did he have an inmate pass to see her. SUF 27, 28. Defendant saw plaintiff standing in the hallway, told plaintiff he was not authorized to be in the area, and that he had to leave. SUF 32. Plaintiff claims that defendant told him to, "Get the hell out of here, you reprobate! ...