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Gary L. Sargent, et al v. Paul Simoneta

September 21, 2011

GARY L. SARGENT, ET AL.,
PLAINTIFF,
v.
PAUL SIMONETA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs, proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court is defendants' motion for summary judgment (Doc. 43), and plaintiffs' motion to for leave to file an amended complaint (Doc. 45). A hearing on defendants' motion for summary judgment was held on September 8, 2011, before the undersigned in Redding, California. Defense counsel Gary Brickwood appeared on behalf of the defendants. No appearance was made on behalf of either plaintiff.

A. BACKGROUND

This case was originally filed in the Northern District, but transferred on request of plaintiffs, after they were notified by defense counsel that it was filed in the wrong district. The claims arise out the defendants' refusal to assist plaintiffs, who claim to be disabled senior citizens in need of protection and/or assistance from private individuals.

Plaintiffs claim they contacted the Adult Protective Services, and were denied services by Mr. Simoneta. Based on that denial, they requested assistance from Mr. Baugh and s Ms. Tracy, who also denied them assistance.

B. UNDISPUTED FACTS

The motion for summary judgment/adjudication is based solely on the facts as alleged in the complaint, and the declaration of Mr. Simoneta. Mr. Simoneta's declaration contains information regarding the contact Mr. Atterbury had with the Shasta County Adult Protective Services (APS), and APS's role in general with disabled/dependent adults. Mr. Simoneta does not recall any communication with Mr. Sargent, but based on the facts alleged in the complaint determined if contact with APS was made, APS was not in the position to help him either.

Plaintiffs allege in the complaint that plaintiff Atterbury was residing at a friend's house when the friend died. He had money and property left at the house, which the friend's wife refused to return. Plaintiff Sargent suffered from a sudden and unexpected eviction, and had a dispute with his sister over his parent's will. These are the harms the defendants failed to stop or help them with.

Plaintiff fail to provide any evidence for the court to review. In addition, they fail to adequately dispute any of the evidence defendants provide.

C. MOTION FOR SUMMARY JUDGMENT

Defendants argue they are entitled to summary judgment/adjudication on two basis: there was no duty to protect the plaintiffs to give rise to a § 1983 action, and they are entitled to qualified immunity.

In opposition, plaintiffs filed a motion to amend the complaint, and an opposition. They have not, however, submitted any evidence in support of their motion.

1. Standards

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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 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 ...


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