ORDER AND FINDINGS AND RECOMMENDATIONS
This matter came before the court on January 15, 2010, for hearing of the motion for summary judgment brought by defendants Griffin and Miller (Doc. No. 53).*fn1 Marcos Alfonso Kropf, Esq. appeared on behalf of the moving parties. Plaintiff Ingram, who is proceeding pro se in this action, made no appearance and failed to file written opposition to defendants' motion. Defendants' motion for summary judgment was taken under submission.
Also before the court are plaintiff's motion to proceed in forma pauperis on appeal, "Motion for Appealing Judgment or Order Pursuant to Federal Rules of Civil Procedure 73," and motion for transcripts at government expense (Doc. Nos. 50, 51, and 52).
DEFENDANTS' 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 facts in contention are material, i.e., facts 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
Defendants Griffin and Miller seeks summary judgment or summary adjudication in their favor on the ground that they did not stop, detain, search, or have any contact with plaintiff in November 2007 and could not have violated plaintiff's constitutional rights as alleged. Defendants also seek summary judgment on the grounds that (1) the First, Sixth and Fourteenth Amendment claims alleged by plaintiff fail because all potential claims arising from an alleged detention or search must be analyzed under the Fourth Amendment; (2) the facts alleged in plaintiff's complaint fail to demonstrate that any of his First Amendment rights were denied; (3) the facts alleged in plaintiff's complaint fail to demonstrate that he was prosecuted by either of the defendants or that he was in any way deprived of his rights under the Sixth Amendment; and (4) the facts alleged in plaintiff's complaint fail to demonstrate that his Fourteenth Amendment rights were violated in any way.
Defendants' motion includes a separate statement of undisputed facts supported by (1) plaintiff's complaint, (2) the declaration of defendant Officer Kevin Griffin dated December 8, 2009, (3) the declaration of defendant Sergeant Andrew Miller dated December 8, 2009, (4) the declaration of Supervising Dispatcher Paul E. Troxel dated December 14, 2009, and (5) the declaration of defendants' counsel dated December 14, 2009.
Defendants' evidence establishes the following: (1) plaintiff alleges that he was stopped and detained by Officer Griffin and Sergeant Miller in November 2007; (2) plaintiff has not produced or disclosed to defendants' counsel any evidence or documentation in support of his allegation that he was stopped and detained by Officer Griffin and Sergeant Miller in November 2007; (3) the Communications Division for the Sacramento Police Department maintains records called "unit histories" that generally include a history of officer contacts and activity in the field, including records checks; (4) it is the general practice of Officer Griffin and Sergeant Miller to notify the Sacramento Police Department's dispatch center when they are involved in a traffic stop or when they detain or search a person in the field, unless radio traffic or other circumstances prevent them from doing so; (5) the unit histories maintained by the Sacramento Police Department do not show any stops or detentions of plaintiff in November 2007; (6) the unit histories for Officer Griffin and Sergeant Miller do not show that they performed any traffic stops on Colfax Street in the city of Sacramento in November 2007; (7) it is the general practice of Officer Griffin and Sergeant Miller to run a records check of any person they detain in the field; (8) the records maintained by the Sacramento Police Department do not include any record of plaintiff being stopped, detained, or contacted by Officer Griffin, by Sergeant Miller, or by any other Sacramento Police officer in November 2007; and (9) neither Officer Griffin nor Sergeant Miller ever contacted, stopped, or detained plaintiff in November 2007.
As required by the standards applicable to motions for summary judgment, defendants have 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 ...