ORDER AND FINDINGS AND RECOMMENDATIONS
This matter came before the court on February 5, 2010, for hearing of defendant McGlinchey's motion for summary judgment (Doc. No. 54).*fn1 Marcos Alfonso Kropf, Esq. appeared on behalf of the moving party. Plaintiff Ingram, who is proceeding pro se in this action, made no appearance and failed to file written opposition to defendant's motion. Defendant's motion for summary judgment was taken under submission.
Also before the court are plaintiff's "Motion for Appealing Judgment or Order Pursuant to Federal Rules of Civil Procedure 73," motion to proceed in forma pauperis on appeal, and motion for transcripts at government expense (Doc. Nos. 51, 52 and 53).
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Legal Standards Applicable to a Motion 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 judgment as a matter of law. Fed. R. Civ. P. 56(c). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Owen v. Local No. 169, 971 F.2d 347, 355 (9th Cir. 1992).
A party moving for summary judgment 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.
"[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.'" Celotex Corp., 477 U.S. at 323. 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. See 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. Summary judgment should then 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. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). In attempting to establish the existence of a 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 a dispute exists. See Fed. R. Civ. P. 56(e)(2); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that a fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. 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). 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).
II. Application of the Standards
Defendant McGlinchey seeks summary judgment or summary adjudication on the ground that he did not violate plaintiff's constitutional rights on October 28, 2007, and that he is immune from liability on the basis of qualified good faith immunity.
Defendant's motion includes a separate statement of undisputed material facts supported by (1) the declaration of defendant McGlinchey signed on an unspecified date in December 2009, with copies of the police report and statements taken on October 28, 2007, (2) the declaration of Officer Daniel Paiz dated December 23, 2009, with a copy of the statement taken by Officer Paiz from plaintiff's companion on October 28, 2007, (3) the declaration of defendant's counsel dated January 5, 2010, with attached excerpts from and an exhibit to the transcript of plaintiff's deposition taken June 15, 2009, in case No. CIV S-08-2683 GEB DAD PS, and (4) plaintiff's complaint.
Defendant's evidence establishes the following: (1) on October 28, 2007, defendant Officer Brian McGlinchey was working as a Sacramento City Police Officer, in full uniform and in a marked patrol car; (2) on October 28, 2007, plaintiff was on searchable probation pursuant to an order of the Sacramento Superior Court placing plaintiff on formal searchable probation for a period of four years; (3) plaintiff admits and understands that the terms of his probation required that he submit his person, property, automobile, and any object under his control to search and seizure by any law enforcement officer; (4) on October 28, 2007, Officer McGlinchey stopped a car driven by plaintiff; (5) when he stopped plaintiff's car, Officer McGlinchey knew that plaintiff was on searchable probation, saw plaintiff fail to signal a turn, observed that plaintiff's front window was tinted in violation of the state vehicle code, and had information that a vehicle matching the description of plaintiff's car was routinely driving in the area and its occupant was selling drugs; (6) after Officer McGlinchey stopped plaintiff's car, the officer asked plaintiff if he needed assistance getting out of the car; (7) plaintiff told Officer McGlinchey that he did not need assistance getting out of his car; (8) Officer McGlinchey searched plaintiff, using his hands to check the inside of plaintiff's pockets and in and around plaintiff's waistband; (9) to the extent that Officer McGlinchey used any force with respect to his search of plaintiff, it was only incidental; (10) Officer McGlinchey did not squeeze plaintiff's leg; (11) Officer McGlinchey used only the amount of force needed to search and arrest plaintiff; (12) after plaintiff was placed in Officer McGlinchey's patrol car, plaintiff complained that it was hot in the car, and Officer McGlinchey responded by turning on the air conditioner and leaving it on; (13) at no other time did plaintiff complain that he was suffering any pain or discomfort; (14) at no time during his encounter with Officer McGlinchey did plaintiff request medical assistance; (15) at no time during his encounter with Officer McGlinchey did plaintiff cry out in pain or otherwise indicate that he was suffering any pain; (16) plaintiff and the passenger in his car, Lamont Pride, were arrested after illegal drugs were found in plaintiff's car; (17) plaintiff admitted to the officers that he was hiding illegal drugs in his anal cavity; (18) the vehicle's passenger, Lamont Pride, was also hiding drugs in his anal cavity; (19) plaintiff has not disclosed any evidence or supporting documentation for his allegations that Officer McGlinchey violated plaintiff's civil rights in any way; (20) plaintiff consented to the search of his residence.
As required by the standards applicable to motions for summary judgment, defendant has identified portions of the pleadings, materials obtained through discovery, and affidavits that demonstrate the absence of a genuine issue of material fact as to plaintiff's claims. The burden thus shifts to plaintiff to establish that a genuine issue as to any material fact actually does exist. Plaintiff must demonstrate that any fact in contention is material, i.e., it might affect the outcome of the suit under the ...