The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
ORDER AND REPORT AND RECOMMENDATION
Currently pending and considered herein is Plaintiff's Motion for Discovery in Presentation of Video Surveillance (Dkt. 30) and Defendants' Motion for Summary Judgment (Dkt. 23) referred to the undersigned Magistrate Judge for Report and Recommendation by Order dated June 4, 2010 (Dkt. 14). Having fully considered the parties' briefing and the record before it, the Court issues the following Report and Recommendation and Order.
REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT
Plaintiff is an inmate in the custody of the State of California. Plaintiff alleges that he was arrested on May 3, 1985, for being on school grounds without permission from the school. The charges included a violation of California Penal Code ("PC") 626.8 which is for disruptive presence at school by a "known sex offender." Plaintiff alleges that he was not and never has been a sex offender, and that the charges were dismissed because he was found "factually innocent."
Later, when Plaintiff was arrested and convicted of a different offense, he discovered that his California Department of Corrections and Rehabilitation (CDCR) classification record contained the statement: "Arrested 9/25/1985 by CASO Fresno for PC 477(A), Annoy/Molest Children. The dispo was dismissed. UCC of 4/15/1997 elected not to affix 'R' suffix, per archive review of 8/22/2003." Plaintiff alleges that the title of the charge, "Annoy/Molest Children," is inaccurate and that he has never been charged with any sex offense or offense against children. He further alleges that, beginning on November 11, 2003, he has attempted to have the reference removed from his classification record because it was defamatory and placed him in a dangerous position with the CDCR. He has been unable to have the reference removed through administrative channels, or via habeas corpus proceedings he brought in the California state court system.
In this action, Plaintiff asserts in his Complaint that the incorrect record amounts to a violation of his constitutional right to due process and free speech, and that the statements amount to slander. (Complaint, Dkt. 1). Plaintiff also made allegations that the wrongful entries pose a danger to his safety. (Id.)
The Court conducted an initial review of Plaintiff's Complaint on September 9, 2009. (Initial Review Order, Dkt. 9). The Court construed Plaintiff's allegations regarding a danger to his safety as an Eighth Amendment claim, which the Court did not allow to go forward because Plaintiff failed to allege several necessary facts to state that claim. The Court granted Plaintiff leave to file a motion to amend to add the missing factual allegations for this claim, which Plaintiff has not done.*fn1 The Court also dismissed Plaintiff's free speech and slander claims, and several improper defendants.
The Court, however, allowed Plaintiff's Fourteenth Amendment due process liberty interest claim for failing to correct the prison records to proceed as against only the defendants who may be his record custodians, Warden J. Yates, Counselor A. Gipson and Chief of Inmate Appeals N. Gennis. Defendants move for summary judgment on this remaining claim.
Summary judgment is appropriate where a party can show that, as to any claim or defense, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327.
"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the case. See id. at 248.
The moving party is entitled to summary judgment if that party shows that each issue of material fact is not or cannot be disputed. To show the material facts are not in dispute, a party may cite to particular parts of materials in the record, or show that the materials cited do not establish the presence of a genuine dispute, or that the adverse party is unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court must consider "the cited materials," but it may also consider "other materials in the record." Fed. R. Civ. P. 56(c)(3).
Material used to support or dispute a fact must be "presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted in support of or opposition to a motion "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ...