FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently pending before the court are: (1) plaintiff's motion for summary judgment/motion for judgment on the pleadings (Docket Nos. 77, 82); (2) defendant's motion to strike plaintiff's motion for summary judgment (Docket No. 79); (3) plaintiff's motion to compel defendant to provide further interrogatory responses (Docket No. 80); (4) plaintiff's motion to compel the California Department of Corrections and Rehabilitation ("CDCR") to provide further discovery (Docket No. 81); and (5) plaintiff's renewed motion for a determination that defendant's declaration in support of his August 2, 2010 motion for summary judgment was submitted in bad faith (Docket No. 81). For the reasons provided below, the court recommends that plaintiff's motion for summary judgment/motion for judgment on the pleadings be stricken.
The court further recommends that plaintiff's renewed motion for a determination that defendant's declaration was submitted in bad faith be denied. Finally, the court orders that plaintiff's motions to compel be denied.
Plaintiff's verified complaint alleges as follows: On April 4, 2007, plaintiff was removed from rehabilitative therapy for Enhanced Outpatient Program (E.O.P.) status inmates[*fn1 ] on the exercise yard at CMFVacaville prison by Correctional Officer Vojkufka. C/O Vojkufka the arbitrarily decided to suspend and withhold all rehabilitative therapy and regular exercise yard time privileges for 30 days without notifying his superior officers and/or without benefit of filing any disciplinary infractions against plaintiff.
It is plaintiff's assertion that C/O Vojkufka became angry at the inmates under his supervision after he left his assigned post overseeing the N-Tower exercise yard and a fistfight occurred between inmates Bradley Parrish, RM N-204, and Kellums, V-48858, resulting in an intervention by other correctional officers as well as Sgt. Demarrs. When C/O Vojkufka returned to the N-Tower exercise yard he was berated by Sgt. Demarrs for leaving his post. C/O Vojkufka then began speaking disrespectfully to the remaining E.O.P. inmates. When the plaintiff politely asked C/O Vojkufka to tone down his language and demeanor, C/O Vojkufka then singled-out plaintiff and threatened a disciplinary charge of "inciting a riot" . . ..
Plaintiff never at any time incited, instigated, asked, told, cajoled, or pressured other E.O.P. inmates to take any type of action in deeds or words.
In an attempt to intimidate and retaliate against plaintiff, C/O Vojkufka removed him from the exercise yard and admonished plaintiff that his therapy and exercise yard was suspended until he (Vojkufka) decides to permit plaintiff access for exercise and recreational therapy.
On April 5, 2007, plaintiff was informed by N-2 wing staff, C/O Larson, that C/O Vojkufka had stopped "all" of his rights and privileges to access the exercise yard. C/O Larson stated he did not know the reason for suspension of privileges at it was "not based on disciplinary charges or instructions from administrative staff but directly from C/O Vojkufka."
Plaintiff attempted to resolve the denial of recreational therapy and exercise yard via talking to C/O Vojkufka. When C/O Vojkufka reiterated "his" intention to deny access to the exercise yard for 30 days, plaintiff attempted to hand C/O Vojkufka a CDC form 602 appeal grievance asking for his right to exercise yard and recreational therapy for E.O.P. status inmates. . . . Dckt. No. 1 at 7-8. Plaintiff alleges that defendant Vojkufka's actions violated his right to be free from cruel and unusual punishment under the Eighth Amendment.
Defendant denies the bulk of plaintiff's allegations, admitting only that: (1) plaintiff exhausted his administrative remedies; (2) defendant was employed as a correctional officer at CMF at the relevant time; and (3) plaintiff was removed from the yard on April 3, 2007*fn2 "and informed that he may not be able to attend regular yard for 10 days." Dckt. No. 17, Answer at 1-2. Defendant maintains the following version of events in his supplemental declaration filed in support of his August 2, 2010 motion for summary judgment*fn3 (as corrected by the notice of errata filed on October 22, 2010):
On the morning of April 3, 2007, I was working on the N-2 yard with my partner, Officer Kent. [¶] During exercise yard, two inmates began fighting. I ordered all inmates on the yard to get down on the ground in a prone position. [¶] All but three of the inmates complied with the order; two inmates wearing headphones and inmate Heilman.
Inmate Heilman was the only inmate standing up. He began shouting at me and the other inmates. I ordered inmate Heilman to get on the ground and to stop shouting at everyone. Inmate Heilman finally went down on the ground, but he continued to shout and yell at the other inmates.
Due to the volatility of the yard following the fight, I believed that Heilman's shouting would incite the other inmates. [¶] I escorted inmate Heilman off the yard and back to his cell.
After inmate Heilman was re-housed, I informed him that, per orders of Sergeant Demars, he would not be allowed to attend exercise yard for ten days. However, I explained to inmate Heilman that he would still be allowed to attend recreational therapy on the yard. [¶] I also told inmate Heilman that I was going to issue a disciplinary violation because of his ...