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Elmore v. Arong

May 20, 2010

TONIE ELMORE, PLAINTIFF,
v.
ARONG, ET AL., DEFENDANTS,



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is the motion for summary judgment filed September 11, 2009 by defendants Maxham, Perfino, Moreno and Rendon. (Dkt. No. 48.) On April 1, 2010, plaintiff filed his opposition. (Dkt. No. 68.) Defendants did not file a reply.

After carefully considering the record, the undersigned recommends that defendants' motion be granted.

II. First Amended Complaint

This case is proceeding on the first amended complaint filed October 12, 2007, against defendants Turella, Maxham, Rendon, Perfino and Moreno. (Dkt. No. 9.) The pending summary judgment motion is not made on behalf of defendant Turella.*fn1

Plaintiff alleges that on August 25, 2003, he was called into the doctor's office. As plaintiff walked toward the office door, defendant Maxham physically assaulted him. Defendant Perfino arrived during the assault but failed to stop it.

After the assault, defendant Maxham began to handcuff plaintiff behind his back. Plaintiff told defendant Maxham that he had a chrono stating that he could only be handcuffed with his hands in the front of his body. Defendant Maxham ignored plaintiff and said, "this is the way it's going to be."

Plaintiff was later charged with assaulting defendant Maxham. Defendant Moreno was the Senior Hearing Officer at the disciplinary hearing. Defendant Moreno did not call any of plaintiff's witnesses. Defendant Moreno found plaintiff guilty based on the testimony of one witness who supported defendant Maxham's version of events. After being found guilty of the charges, plaintiff was placed in administrative segregation ("ad seg").

While housed in ad seg, plaintiff was charged with assaulting his cellmate. Defendant Rendon was the hearing officer at the disciplinary hearing. Defendant Rendon did not allow plaintiff to speak in his own defense and found him guilty.

III. Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Fed. R. Civ. P. 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and that the movant is entitled to 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). "[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. 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. at 323. In such a ...


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