FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The gist of his complaint is that defendants mistreated him because he refused to become a "snitch" or informant. The court granted summary judgment in favor of defendants on all but two of plaintiff's claims in an order dated September 28, 2009. Dckt. No. 69. Defendants now seek summary judgment of the two remaining claims. For the reasons provided below, the court finds that the motion must be denied.
Plaintiff has also filed two motions seeking a summary award of damages. As discussed below, those motions must also be denied.
I. Facts Relevant to the Instant Motion for Summary Judgment
In May 2005, plaintiff began working as a cook in one of the CMF kitchens. He alleges that while he was working in the kitchen, defendant Halverson approached him and requested that he provide information about alleged gang members who also worked in the kitchen. Am. Compl., Dckt. No. 18, at 6. Plaintiff declined, explaining that prisoner informants risk violence at the hands of other prisoners. Id. According to plaintiff, defendant Halverson responded to this refusal with a promise that plaintiff would regret his decision. Id. at 6-7. Plaintiff further claims that on May 26, 2005, after he refused to be an informant but while he still worked in the kitchen, defendant Halverson confiscated the card plaintiff needed to obtain a liquid diet. Id. at 7 (citing to Ex. D); Pl.'s Mem. in Opp'n to Def.'s First Mot. for Summ. J. (hereafter, "Pl.'s First Mem."), at 1. On June 14, 2005, the dietician returned it to him after receiving a grievance from plaintiff. Pl.'s First Mem. at 1. Plaintiff claims that once he received the card, defendant Halverson told him that "he [Halverson] will get plaintiff." Am. Compl. at 7. Defendant Halverson denies that statement and denies that he asked plaintiff to become an informant.
Defs.' First Mot. for Summ. J. (Dckt. No. 49), Ex. 1, Decl. of Halverson ("Halverson Decl.") ¶ 5.
Plaintiff also alleges that at some unspecified time, defendant Halverson made telephone calls to the kitchen and encouraged kitchen staff to take adverse action against plaintiff for his refusing to become an informant. Am. Compl. at 9-10. He alleges that thereafter, defendants Lesane and Lee deprived plaintiff of food for six days by confiscating his liquid diet card and refusing to return it until ordered to do so. Id. at 10-11. Specifically, on February 23, 2007, as plaintiff was waiting to receive his special liquid diet meal, defendants Lesane and Lee "accosted" him, handcuffed him behind his back, placed him in a holding cell for four hours and confiscated his diet card. Id. Plaintiff had specific authorization for a liquid diet because he has no molars. Id. In order to obtain his special meals, however, plaintiff had to present a card proving his entitlement to a special diet. Id.
Defendants concede that Lesane and Lee confiscated plaintiff's food card during the February 23 incident. Am. Compl. at 11; Defs.' First Mot. for Summ. J., Ex. 2, Lesane Decl. ¶ 6; Ex. 3, Lee Decl. ¶ 2. Plaintiff asserts that as a result, he did not eat for five days. Am. Compl. at 11.
Although defendants Lesane's and Lee's accounts provide additional context and detail. Defendant Lesane asserts that when plaintiff was detained, he should have been in an area designated for those who receive special diets. Lesane Decl. ¶ 6. Lesane says that he found plaintiff "out of bounds"*fn1 attempting to obtain food that was not part of his liquid diet, i.e., chicken. Id. For that reason, and pursuant to CDCR policy, defendants Lesane and Lee confiscated the diet card. Id.; Lee Decl. ¶ 2.
Plaintiff asserts that for at least a year preceding this incident, the staff who supervised him in his job allowed him to enter the kitchen on his days off to eat left-overs from the previous night's dinner. Pl.'s First Mem., at 10, 20. Plaintiff says that this was an "unwritten privilege" that kitchen staff afforded prisoner employees. Id. at 20. Plaintiff concedes that he was attempting to obtain a piece of "soft" chicken from that area on the day in question. Id.
II. Summary Judgment Standards
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.
Summary judgment avoids unnecessary trials in cases with no genuinely disputed material facts. See Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). At issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, Rule 56 serves to screen the latter cases from those which actually require resolution of genuine disputes over material facts; e.g., issues that can only be determined through presentation of testimony at trial such as the credibility of conflicting testimony over facts that make a difference in the outcome. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)).
Focus on where the burden of proof lies as to the issue in question is crucial to summary judgment procedures. "[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. 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 opposing party must 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). To overcome summary judgment, the opposing party must demonstrate a factual dispute that is both material, i.e. it affects the outcome of the claim under the governing law, see Anderson, 477 U.S. at 248; T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and 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 this regard, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. In attempting to establish the existence of a factual dispute that is genuine, 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. 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). The opposing party must demonstrate with adequate evidence a genuine issue for trial. Valandingham v. Bojorquez, 866 F.2d 1135, 1142 (9th Cir. 1989). The opposing party must do so with evidence upon which a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 248, 252. If the evidence presented could not support a judgment in the opposing party's favor, there is no genuine issue. Id.; Celotex Corp., 477 U.S. at 323.
In resolving a 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 to ...