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Curtis Harvey Merchant v. H. Lopez

April 13, 2011

CURTIS HARVEY MERCHANT,
PLAINTIFF,
v.
H. LOPEZ, P. WEITZEIL, R. MADDEN, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

CDCR #E-79892

ORDER

The matters before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 58) and Defendants' Motion for Summary Judgment (ECF No. 60).

I. Procedural History

On April 22, 2009, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint alleging claims pursuant to 42 U.S.C. § 1983. (ECF No. 1).

On September 11, 2009, Defendants Lopez, Weitzeil and Madden filed a Motion to Dismiss Plaintiff's Complaint, or in the alternative, a Motion for More Definite Statement. On December 23, 2009, the Court granted in part and denied in part Defendants' Motion to Dismiss and denied Defendants' Motion for More Definite Statement. (ECF No. 13). All claims against Defendant Madden were dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants Lopez and Weitzeil were ordered to file an Answer to Plaintiff's retaliation claims, which are the only remaining claims in this action.

On September 23, 2010, Plaintiff filed his Motion for Summary Judgment. (ECF No. 58). On October 1, 2010, Defendants filed their Motion for Summary Judgment. (ECF No. 60).

On October 8, 2010, the Court advised Plaintiff of his rights and obligations to oppose Defendants' Motion pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).*fn1

Both parties filed an opposition*fn2 and a reply to the respective Motions, and Defendants filed evidentiary objections. (ECF Nos. 66-71).

II. Factual submissions

At all relevant times, Plaintiff was an inmate at Calipatria State Prison. (Pl.'s Statement of Facts, ECF No. 58 at 8). From August 2007 to May 2008, Plaintiff was assigned as a paid scullery worker in the prison Food Services Department. Id. at 8, 10.

Defendant Weitzeil is an Office Technician in the Food Services Department at Calipatria State Prison. (Weitzel Decl. ¶ 3, ECF No. 60-3). Defendant Lopez is the Assistant Correctional Food Manager in the Food Services Department. (Lopez Decl. ¶ 2, ECF No. 60-3).

In September and November of 2007, Plaintiff "inquired about [a] clerical position to Defendant Weitzeil [in the main office of the Central Kitchen]." (Pl.'s Statement of Facts, ECF No. 58 at 8). Weitzeil stated that during these exchanges, Plaintiff "blocked [her] path" and "stated he would like to work in [Weitzeil's] office as [her] clerk." (Weitzeil Decl. ¶ 4, ECF No. 60-3). Weitzeil stated that she "felt uncomfortable with Plaintiff's persistence and demeanor, as it exceeded the typical interaction [she] would have with an inmate." Id.

Weitzeil stated that, on December 17, 2007, Plaintiff came to Weitzeil's office "in an aggressive and confrontational manner" to inform her that he was "upset" she had offered the clerk position to someone else. Id. at ¶ 5. Plaintiff testified that he "confronted Defendant Weitzeil" and stood "about three feet" from her. (Merchant Dep. at 28, 37-38, ECF No. 60-3).

Weitzeil stated that, on December 18, 2007, she "notified custody staff regarding the preceding day's events." (Weitzeil Decl. ¶ 6, ECF No. 60-3).

On January 15, 2008, "Plaintiff initiated [a] grievance against Defendants Lopez and Weitzeil, along with other non-party prison employees, for job discrimination," related to Weitzeil's failure to select Plaintiff as her clerk. (Pl.'s Statement of Facts, ECF No. 58 at 8).

On February 7, 2008, Plaintiff informed Weitzeil that he had filed an inmate appeal regarding the failure by Weitzeil to hire him as her clerk. Id.; see also Weitzeil Decl. ΒΆ 7, ECF No. 60-3. Weitzeil stated that she "informed [Plaintiff] that because of his actions on December 17, 2007, [she] would be uncomfortable working with an ...


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