The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are: (1) defendants' motion for summary judgment (Doc. 48); and (2) plaintiff's motion for a stay of proceedings (Doc. 56).
Plaintiff names the following as defendants: Felker, Faulk, Lockart, Spalding, and Moore. Plaintiff alleges that "African-Americans [are] being systematically . . . shipped and housed at High Desert State Prison." He also alleges an "underground policy of 'not allowing them to be transferred.'" Plaintiff claims that he was improperly transferred to High Desert State Prison in retaliation for a prison grievance he filed in February 2007. He claims that he was informed by defendant Lockart that ". . . he and his boys knew all about [plaintiff] filing paper work [the February 2007 grievance] against this prison (High Desert) and that [plaintiff would] wish [he hadn't] done so." Plaintiff asserts that defendant Moore informed him that he was being "fast tracked" to a program for behavior modification because he had filed grievances concerning his transfer. He also claims that he was improperly classified as a member of a prison gang in retaliation and as a form of harassment. Finally, he claims that his prison grievances were intentionally "lost."
As to defendant Felker, plaintiff claims that he is responsible for the actions of his subordinates. As to defendant Faulk, plaintiff asserts that he willfully and knowingly participated in the alleged retaliation. It appears that liability against Faulk is alleged on the basis of his function as a facility captain responsible for the conduct of subordinate correctional officers. As to defendant Spalding, plaintiff alleges that he began the process to improperly label him a gang member. As to defendants Lockart and Moore, plaintiff alleges these were the actual correctional officers who engaged in other various acts of claimed retaliation.
Plaintiff states that the facts of his case give rise to a claim of retaliation and a claim of violation of equal protection. Plaintiff specifically admits that the grievance process was not completed as of the time of filing suit. Plaintiff seeks monetary damages and injunctive relief.
On February 29, 2008, the court issued findings and recommendations that plaintiff's equal protection claim be dismissed, defendants Felker and Faulk be dismissed, and that the action proceed only on plaintiffs' retaliation claims against defendant Spalding, Lockart, and Moore. The findings and recommendations were adopted in full on May 5, 2008, and all three remaining defendants have appeared in the action.
II. STANDARDS FOR SUMMARY JUDGMENT
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. 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, 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, 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. See 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 ...