ORDER RE: MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Abraham G. Pinzon met and spoke with Defendant Dan Vaughn at the Strawberry Inn restaurant/bar in July 2006. Defendant Vaughn was renovating his private residence at the time. Defendant Ron Jensen was the general contractor on the project. After speaking with Pinzon at the Strawberry Inn, Vaughn hired him to do tile work on the project. Vaughn is part owner of Defendant Pinecrest Market, a general store. Vaughn also works as a clerk or manager of the store and is regularly found at that location. Pinzon, bringing a record of the hours he worked that week, would approach Vaughn on Friday afternoons at Pinecrest Market to be paid. Vaughn would take money out of the till of Pinecrest Market to pay Pinzon.
One Friday in August, Pinzon approached Vaughn at night at the Strawberry Inn. Pinzon asked to be paid and Vaughn refused to pay him. Pinzon insisted and Vaughn allegedly threatened to shoot him. The next day Pinzon, Jensen, and Vaughn met to discuss the problem at the residence; Pinzon was paid. Pinzon continued to work on the project and be paid on Fridays. Vaughn began to complain about the quality of Pinzon's work and the amount of time the tile work was taking. Pinzon was not paid on October 7, 2006. On October 10, Vaughn approached Pinzon at the residence and fired him. Vaughn and Jensen told Pinzon that he was a tresspasser who had to leave. When Pinzon asked to be paid for his work over the last ten days, Vaughn is alleged to have said, "sue me nigger." Pinzon is of Puerto Rican ethnicity.
Pinzon filed suit in the small claims division of Superior Court, County of Tuolumne (Case No. SC-15790) against Defendants Vaughn and Jensen. On the complaint form, Pinzon stated that the reason Defendants owed him money was that "contractor and home owner welched on final 2 payments for the tile installations received." Doc. 28, Pinzon's Claim, at 4. A trial was held on January 22, 2007 before Judge Pro Tem Stephen Derkum. Judge Derkum found in favor of Defendants in a written decision. Doc. 28, Statement of Decision, at 7-10. Specifically, he found that Pinzon did not have a contractor's license and was working for Vaughn in the capacity of a contractor. Cal. Bus. & Prof. Code §7031 absolutely bars any state claim for compensation when an unlicensed individual does work for which he/she should be licensed. As a losing claimant in small claims court, Pinzon did not have the ability to file an appeal.
Pinzon first filed suit in federal district court on August 14, 2008 (Pinzon v. Jensen, Civ. Case No. 08-1193). Pinzon named Ron Jensen, Ron Jensen Construction, Dan Vaughn, Pinecrest Market, and the Superior Court, County of Tuolumne as defendants. Pinzon made claims under the Thirteenth Amendment, Fourteenth Amendment, Title VII of the Civil Rights Act of 1964, the Ralph Act, 42 U.S.C. §1981, and 42 U.S.C. §1983, alleging the Defendants failed to pay him for his tile work, subjected him to a hostile work environment, interfered with his right to make contracts, and discriminated against him on the basis of race. Pinzon was proceeding pro se and in forma pauperis. The complaint was screened Magistrate Judge Sandra Snyder pursuant to 28 U.S.C. §1915(e)(2). Judge Snyder issued a Findings and Recommendation that the suit be dismissed for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. No objections were filed and District Judge Lawrence O'Neill dismissed the complaint, closing the case on October 1, 2008.
Pinzon filed a second suit in federal district court on October 14, 2009 (the present case). Pinzon again named Ron Jensen, Ron Jensen Construction, Dan Vaughn, Pinecrest Market, and the Superior Court, County of Tuolumne as defendants. Pinzon made claims under the Thirteenth Amendment, Fourteenth Amendment, Titles II, VI, and VII of the Civil Rights Act of 1964, the Ralph Act, 42 U.S.C. §1981, and 42 U.S.C. §1983, making similar allegations as in the prior federal case. Pinzon is again proceeding pro se and in forma pauperis. Through screening and a motion to dismiss, the only claims left are the Ralph Act and 42 U.S.C. §1981 claims against Defendants Ron Jensen, Ron Jensen Construction, Dan Vaughn, and Pinecrest Market.
Vaughn and Pinecrest Market have made motions for summary judgment. Docs. 55 and 68. Pinzon has opposed these motions but did not provide any evidence in opposition. Doc. 63. In light of Pinzon's pro se status, Pinzon was allowed additional time to present evidence. Doc. 73. Pinzon has not done so; these motions must be resolved using the materials provided by Defendants.
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 judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). 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 Juell v. Forest Pharms., Inc., 456 F.Supp.2d 1141, 1149 (E.D. Cal. 2006); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated ...by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). If the non-moving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1103 (9th Cir. 2000).
III. Statements of Material Facts
A. Defendant Vaughn's and Plaintiff's Joint Statement
1. This dispute arises out of an employment relationship between plaintiff and [some] of the defendants.
2. Plaintiff Abraham G. Pinzon, who throughout has proceeded in forma pauperis, alleges that during July through October 2006, he performed custom tile work for the defendants.
3. Mr. Pinzon alleges that defendants in unlawful and discriminatory employment practices by refusing to pay him for his work because of his race; defendants also allegedly threatened him with violence and fired him and from his job [and unequal treatment and unpaid wages].
4. Until mid-August of 2006, nothing of a discriminatory or racial nature occurred up to that point.
5. On a riday evening in mid-August, plaintiff, who is Puerto Rican-American, went to a "half restaurant/half bar" called the Strawberry Inn.
6. Plaintiff may have been drinking at the time and claims Mr. Vaughn was drunk.
7. That Friday evening in the Strawberry Inn bar, Plaintiff asked Mr. Vaughn to pay plaintiff his wages, and according to plaintiff, Mr. Vaughn whom plaintiff believes was drunk at the time, said "I'm not going to pay you," and then said "I'm going to use my gun on you." [Mr. Pinzon could not pay for a drink because he had not been paid and had no money.]
8. Mr. Vaughn did not show plaintiff a gun; plaintiff does not know whether Mr. Vaughn had a gun in his possession and has never seen Mr. Vaughn was actually carrying a gun that day.
9. Nothing else of the substantive nature occurred that mid-August evening at the Strawberry Inn.
10. The next day, plaintiff showed up for work, resolution was reached, and plaintiff got paid the entire amount he was owed.
11. Plaintiff agrees that he did not believe he was going to get shot by Mr. Vaughn; otherwise plaintiff would not have showed up for work the next day and continued to work the next day and continued to work for six weeks and the mid-August incident.
12. The next event of any significance occurred on October 10, 2006.
13. Plaintiff again sought payment from Mr. Vaughn for his work, and according to plaintiff, Mr. Vaughn said "Hey, I'm not paying you." Then, according to plaintiff, Mr. Vaughn said "Hey, sue me nigger."
14. Plaintiff did not respond to Mr. Vaughn's statements because plaintiff was in a homicidal rage. Mr. Jensen then "shoos" plaintiff from the worksite, telling him to get off the property.
15. Plaintiff was upset, but left the job site without further incident and has had no additional conversation with Mr. Vaughn at any other time [except at the small claims hearing].
16. Plaintiff admits he is not aware of any other people that Mr. Vaughn has supposedly mistreated other than himself and is not aware of any Hispanics  that may have in any way been mistreated by Mr. Vaughn.
17. In December 2006, plaintiff filed a lawsuit in state court over this same dispute and lost; following a small claims court trial, judgment was entered against plaintiff and in favor of the defendants.
18. Mr. Pinzon pursued racial discrimination-based claims and threats of violence claims, and filed a series of complaints in this court culminating on March 6, 2009, when plaintiff filed the operative amended complaint.
B. Defendant Pinecrest's and Plaintiff's Joint Statement
1. 42. U.S.C. §1981, Issue 1- Plaintiff Cannot Establish That He Had Any Contractual Agreement or Employment Relationship With Defendant Pinecrest Market
1. Mr. Pinzon alleges that he was hired as an employee of Pinecrest market.
2. Pinzon alleges that Pinecrest Market discriminated against him based upon his race by making "numerous comments about Plaintiff's African American ancestry, used the word 'nigger' and other racial epithets in Plaintiff's presence and directed at Plaintiff and made disparaging remarks about Plaintiff and the quality of his work."
3. Pinzon alleges that Defendant Pinecrest Market refused to pay him the agreed amount and stated to the Plaintiff "sue me for it nigger."
4. Pinzon's claim for workplace discrimination arises out of custom tile work that he performed at the home of Defendant Dan Vaughn between July 2006 and October 2006.
5. Pinzon claims that Pinecrest Market is liable for workplace discrimination because it was his employer and "responsibility lies with the employer."
6. Pinzon did not ever have any written or oral employment agreement with Mr. Vaughn or any other person regarding work to be performed at the Pinecrest Market.
7. Pinzon did not provide any pre-employment documents to Pinecrest Market prior to commencing the tile installation services at Vaughn's personal residence.
8. No employment application, W-2 form, other income tax form, emergency contact form or other insurance document exists evidencing any employment relationship between Pinzon and Pinecrest Market.
9. Pinzon has never performed any work at the Pinecrest Market.
10. Pinzon worked "solely on Mr. Vaughn's home on Old Strawberry Dr.; July 5, '06 through October 10, '06."
11. Defendant Vaughn and Pinzon met at the Strawberry Inn and that is where Mr. Vaughn asked Pinzon to perform tile work at his personal residence.
12. At all times, it was understood between Pinzon and Mr. Vaughn that any work Pinzon performed would be at Mr. Vaughn's personal residence.
13. On a weekly basis, Pinzon would visit the Pinecrest Market to meet with Vaughn and tell him what was owed for the work Pinzon had performed at Vaughn's personal residence in the prior week.
14. Throughout the time that Pinzon worked on the project at Vaughn's personal residence, whenever Pinzon went to the Pinecrest Market to meet with Vaughn and turn in his weekly hours summary, Vaughn would immediately pay Pinzon from the till or the safe at the Market.
15. Mr. Vaughn works at the Pinecrest Market.
16. Until mid-August of 2006, nothing of a discriminatory or racial nature occurred that was identifiable to Pinzon.
17. Sometime in August 2006, Pinzon approached Vaughn at the Strawberry Inn and turned in his ...