The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are the parties' cross motions for summary judgment. Docs. 32, 59.
Plaintiff is not an unfamiliar figure to the undersigned or the Eastern District in general. Commencing in 1993, in an action still ongoing before the district judge (93-767 LKK GGH), plaintiff brought an action claiming that he was hindered in the practice of his Wiccan religion. Since that time, plaintiff has brought no less than seven actions either again claiming a violation of his First Amendment/RLUIPA rights, or that untoward actions have occurred to him as a result of his litigation notoriety, or some combination of both. There is truth to the statement of defendants' counsel set forth in the Points and Authorities:
Rouser cannot manipulate prison official's ability to investigate and prosecute criminal activities--vital to maintaining a prison's safety and security-- merely by cloaking his nefarious conduct under the Wicca umbrella. Otherwise any investigation and disciplinary process would be susceptible to an inmate's claim that his activities are immune from adverse consequences, merely because he uses religion as a shield.
On the other hand, it is possible that the thorn-in-the-side plaintiff can be the victim of conspiracies under the cloak of a relatively closed and frustrated prison system. Fortunately, the conflicting possibilities will have to await adjudication in yet another inevitable litigation in that plaintiff's due process claims are barred as a matter of law, and plaintiff's completely unsupported retaliation and miscellaneous other assertions do not warrant further scrutiny.
This case is proceeding on the amended complaint (AC), filed on September 11, 2007, against eight defendants who were employed at Mule Creek State Prison (MCSP). The basis of plaintiff's complaint was that his due process rights were violated when he was found guilty of a Rules Violation Report (RVR) that resulted in loss of credits and plaintiff was transferred to a different prison. However, the RVR finding has not been reversed, invalidated or expunged pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). Nevertheless, the court ordered service on the defendants as plaintiff alleged violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA)*fn1, a First Amendment Free Exercise claim and other claims*fn2 that were intertwined with the underlying disciplinary hearing claims.
After reviewing plaintiff's motion for summary judgment and his opposition to defendants' motion for summary judgment, it is abundantly clear that the majority of plaintiff's claims involve allegations of due process violations in his RVR hearing. Plaintiff takes issue with the use of confidential informants, alleged tampering with recorded phone transcripts and allegations that defendants falsified reports and provided perjured testimony. Plaintiff seeks monetary damages for these actions.
All claims involving the practice of religion have little bearing on this case, especially as plaintiff makes no allegations that his ability to practice his religion was ever burdened. The defendants were either involved in the investigation that led to the RVR, took part in the hearing concerning the RVR, or were supervisors. As will be discussed below, the undersigned will address plaintiff's claims involving RLUIPA, the First Amendment and other miscellaneous claims, but all of plaintiff's claims related to the RVR hearing are Heck barred.
III. Motion for Summary Judgment
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 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.
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, see 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, see 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 630. 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. 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 ...