The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 37)
Plaintiff Michael Golden ("Plaintiff") brings this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants the County of Tulare ("County"), various Doe Defendants, and Bill Wittman ("Wittman") (collectively "Defendants").
Defendants filed a motion for summary judgment on February 10, 2011. (Doc. 37). Plaintiff filed opposition to the motion for summary judgment and objections to Defendants' evidence on February 28, 2011. (Docs. 42, 43). Defendants filed a reply on March 7, 2011. (Doc. 38).
On August 18, 2008, Plaintiff appeared in Tulare County Superior Court to be arraigned on a misdemeanor violation of California Vehicle Code section 14601.1(a), driving on a suspended license, and an infraction under California Vehicle Code section 4000(a)(1), driving an unregistered vehicle. The Superior Court remanded Plaintiff to the custody of the Tulare County Sheriff's Department. Plaintiff was taken to the Tulare County Jail ("Jail").
At approximately 2:30, more than three hours after his arrest and after being booked, Plaintiff called his attorney, Jeffery Kallis ("Kallis"), for legal advice. Mr. Kallis advised Plaintiff to hang up and arrange for a private and confidential phone call to ensure that personnel at the detention facility were not monitoring or recording the call. Plaintiff hung up and asked a Sheriffs Deputy, identified in the complaint as Doe 26, for a confidential telephone call to his attorney. Doe 26 stated that he would arrange the confidential call. However, Plaintiff was never afforded an opportunity to make a confidential call to his attorney.
On August 19, 2008, at approximately 8:00 a.m., Plaintiff asked an individual identified as Doe 27 if his confidential call to his attorney was arranged. Doe 27 stated he would check on it. Plaintiff repeated his request to Doe 27 three to five times over the course of the next few hours. Each time, Doe 27 stated he would check on it. At approximately 11:45 a.m., an individual identified as Doe 28 escorted Plaintiff to the medical center, and Plaintiff repeated his request for a confidential phone call. Doe 28 chuckled and said "that's not going to happen." Due to his shock and intimidation, Plaintiff ceased his requests for a confidential phone call.
Plaintiff was confined at the Jail for three days. On August 20, 2008, Plaintiff pled no contest to the Vehicle Code charges, was sentenced to three days incarceration, with credit for time served, and released.
Kallis placed several calls to the Jail in an attempt to reach Plaintiff. Kallis was told each time that he would be called back, but he never was.
Summary judgment/adjudication is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that 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). The movant "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) (internal quotation marks omitted).
Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984.
When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if [a] dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. ...