The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for partial summary judgment filed March 1, 2010, and plaintiff's motions to amend filed August 2, 2010, and September 13, 2010. For the following reasons, plaintiff's August 2, 2010 motion to amend is granted, and his September 13, 2010 motion to amend is denied. The undersigned recommends that plaintiff's motion for partial summary judgment be denied.
On May 24, 2010, plaintiff filed a motion to augment the record. Plaintiff requests that the record by "augmented" with the exhibits attached to his motion. Plaintiff will be allowed to have those exhibits be considered part of the file. However, it is plaintiff's burden to reference these exhibits when appropriate.
On February 6, 2009, plaintiff filed the original complaint against defendants Berkler, Fischer, Kisser, Ledesma, Villasenor, Virga, Walker, and the Secretary of the Department of Corrections and Rehabilitation ("CDCR"). The original complaint contained fifteen causes of action. On July 21, 2009, Magistrate Judge Mueller ordered service of claims one, two, three, four, five, six, eight, ten, eleven, thirteen, fourteen and fifteen. On November 13, 2009, defendants answered the complaint as to those claims.
On April 26, 2010, plaintiff filed a motion to voluntarily dismiss claims five, ten, eleven, fourteen and fifteen. On May 25, 2010, that motion was granted. On July 30, 2010, plaintiff filed a proposed amended complaint, and on August 2, 2010, plaintiff filed a motion to amend the complaint to dismiss claims one, two, three, six, and eight. The amended complaint contains two claims, designated as claims four and thirteen in the original complaint. On September 10, 2010, defendants filed a statement of non-opposition to plaintiff's motion to amend. On September 13, 2010, defendants filed an answer to the amended complaint. Good cause appearing, plaintiff's August 2, 2010 motion to amend is granted.
On September 13, 2010, plaintiff filed another motion to amend. This motion is not accompanied by a proposed amended complaint. Because plaintiff did not submit a proposed amended complaint, the court is unable to evaluate it. Accordingly, this motion for leave to amend is denied.
III. Summary Judgment Motion A. Plaintiff's Claims
The amended complaint contains two claims. First, plaintiff alleges that defendants retaliated against him for filing lawsuits and administrative appeals by sentencing him to a term in the Security Housing Unit ("SHU") at Pelican Bay State Prison ("PBSP"). Second, plaintiff alleges that defendants violated his right to due process when they validated him (confirmed designation) as an associate gang member and sentenced him to the SHU term.
Plaintiff's motion for summary judgment addresses his due process claim only. Plaintiff alleges that there was insufficient evidence to validate him as a gang associate. Plaintiff also argues that the regulations on which defendants relied to validate him are vague.
B. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 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 ...