ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. The court ordered service of his amended complaint on defendants Downing, Ellis, Johnson, Lorusso, Parks, Moghaddas, Walker and Paizis on the following claims: (1) from October 2003 through July 2004, defendants Downing, Johnson, Paizis and Moghaddas prescribed an antiviral drug called Amantadine but told plaintiff it was an anti-depressant, which he would have to take if he wanted to be released from psychiatric segregation, Amended Complaint (Am. Compl.) ¶ 32; (2) defendant Walker retaliated against plaintiff for filing a civil action by trying to have plaintiff killed by Bloodline gang members, id. ¶ 33; and (3) defendants Ellis, Parks and Lorusso used pepper spray against plaintiff, id. ¶ 40. Defendants, all of whom work or worked for the California Department of Corrections and Rehabilitation (CDCR), have moved for summary judgment. Plaintiff has sought permission to exceed the filing limits for his opposition to the motion. Defendants have filed a reply.
I. Standards 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 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.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[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. 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 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 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).
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 to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On December 6, 2007, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Defendants have objected to some of the evidence plaintiff has offered as exhibits to his opposition.
A. Plaintiff's Declaration
Defendants object to plaintiff's five page declaration on a number of grounds, ranging from relevancy to lack of foundation. The declaration suffers from a more basic problem: it is not signed. See Docket No. 191-3 at 5. The court cannot consider it in opposition to the motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 900 (9th Cir. 2003); Woloszyn v. County of Lawrence, 396 F.3d 313, 323 (3d Cir. 2005); Fed. R. Civ. P. 56(e). However, plaintiff's opposition to the motion for summary judgment, including his account of the disputed and undisputed facts, is signed under the penalty of perjury, as is the amended complaint; the court will consider the contents of these documents to the extent they are based on plaintiff's personal knowledge, are not conclusory, and do not run afoul of the Federal Rules of Evidence.
B. Declaration of Lenton Hall
Plaintiff has submitted the declaration of inmate Lenton Hall, who claims to have been an "eye-and ear-witness" to several of the events alleged in the complaint. Opposition (Opp'n), Ex. 28 ¶ 8. Defendants have objected to the declaration on a number of grounds.
In paragraphs two, three and four, Hall describes his own experiences with allegedly poisoned food at California State Prison-Sacramento and petitioner's conversations with Hall about being poisoned as well. Plaintiff made such claims in his amended complaint, but the court did not find these appropriate for service. See Order (Docket No. 44). This portion of the declaration is not relevant to the claims before the court.
In paragraph five, Hall avers he was housed two cells away from plaintiff on November 21, 2004, when defendant Parks used pepper spray on plaintiff, and asserts that plaintiff did not throw a tray at Parks and that Parks did not issue any verbal commands. Because Hall does not explain whether his cell was across from or next to plaintiff's, the court cannot tell whether he could see the incident. Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir. 2008) ("[c]onclusory affidavits that do not affirmatively show personal knowledge of specific facts are insufficient."); De La Torre v. Merck Enterprises, 540 F.Supp.2d 1066, 1075 (D. Az. 2008) ("a witness has personal knowledge only when testifying about events perceived through the physical senses or when testifying about opinions rationally based on personal observation and experience"). There is a sufficient foundation, however, for Hall's auditory perceptions.
In paragraph six, Hall claims that correctional officers were angry at plaintiff and began a concerted effort to punish plaintiff. Nothing in the averments shows Hall's personal knowledge of what he describes in this paragraph; it will be disregarded.
In paragraph seven, Hall says that after he threw urine on defendant Ellis, Ellis retaliated against him "by needlessly pepper spraying me and falsely justifying his actions by saying that I had taken my food-port hostage and that he sprayed me to regain control of the port." Although these allegations of Hall's are similar to the allegations of the complaint, they are not sufficiently similar to render Hall's description relevant. Compare Treece v. Hochstetler, 213 F.3d 360, 364 (7th Cir. 2000).
Paragraphs eight and nine -- listing other inmates who witnessed incidents with plaintiff and professed a willingness to come to court -- have no connection to the disputed facts in this case.
C. Declaration of G. Nicholls
The Nicholls declaration was submitted in connection with the court's request for information on plaintiff's claimed inability to make copies from his central file. See Opp'n, Ex. 3; see also Docket No. 161. Defendants argue that plaintiff's reliance on it to authenticate various grievances is improper. If that is the purpose plaintiff intends, it is unavailing, for the declaration does not establish the foundation for the admission of business records. Clark v. City of Los Angeles, 650 F.2d 1033, 1036 (9th Cir. 1981).
A portion of Exhibit 3, as well as Exhibits 7 and 14, are grievances relating to incidents not before this court and are not authenticated. They are not admissible on summary judgment. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
Exhibit 4 documents plaintiff's movement history. While it may be authenticated by its distinctive characteristics, Fed. R. Evid. 901(4), plaintiff has not laid a foundation for a non-hearsay use. Compare Fed. R. Evid. 803(6).
Exhibit 5 is a print-out of plaintiff's grievance history, which plaintiff offers to show that a correctional officer not a party to this action asked him to withdraw a grievance about his placement on B Facility. It is not relevant.
Exhibit 11 is a form documenting plaintiff's placement in Administrative Segregation (Ad Seg) on February 19, 2004. Defendants object that the form is not authenticated and is being offered for a hearsay purpose -- to show that plaintiff informed authorities he was in danger from members of the Bloods. The court relies on appearance, contents and substance in finding it authentic: each page of the printed CDCR form contains plaintiff's name and CDCR number. Plaintiff's statements -- that he felt threatened by the Bloodline members on B Facility -- would be admissible at trial even if they are not in an admissible form in the exhibit. Defendants' objection is overruled. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003).
H. Rules Violations Hearing Records
Exhibits 16, 21, 22, 25 and 26 are reports of proceedings on rules violations hearings. Plaintiff has not laid the foundation for any non-hearsay use of the statements contained in these reports except for those statements of the defendants that may be deemed to be admissions of party opponents or plaintiff's own statements. Fed. R. Evid. 801(d)(2); Fraser, 342 F.3d at 1036-37.
Plaintiff offers Exhibit 20 to show that he sent letters of complaint that he says prompted retaliatory actions by Parks, Lorusso and Ellis. This record is not relevant; as explained below, plaintiff has failed to demonstrate ...