The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are cross-motions for summary judgment filed by plaintiff and defendants Hall and Colon.*fn1 After carefully reviewing the record, the undersigned recommends that defendants' motion be granted in part and denied in part, and that plaintiff's motion be denied.
II. Legal Standard for Summary Judgment
Summary judgment is appropriate when a moving party establishes that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and that the movant is entitled to 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 file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id.
If the moving party meets its initial responsibility, 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). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that such a dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 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 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).
On July 25, 2011, plaintiff filed a summary judgment motion regarding his claims against defendant Colon. (Dkt. No. 69.) On July 27, 2011, plaintiff filed a summary judgment regarding his claims against defendant Hall. (Dkt. No. 70.) On August 25, 2011, defendants filed their summary judgment motion. (Dkt. No. 71.) On August 11, 2011, defendants filed oppositions to plaintiff's motions. (Dkt. Nos. 72, 73.) On August 18, 2011, plaintiff filed an opposition to defendants' motion. (Dkt. No. 74.)
On September 2, 2011, defendants filed a reply to plaintiff's opposition. (Dkt. No. 75.) Defendants' reply contained new evidence, i.e., the declarations of defendants Hall and Colon. When new evidence is presented in a reply, the court should not consider the new evidence without giving the non-moving party an opportunity to respond. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). Accordingly, on September 7, 2011, the undersigned granted plaintiff twenty-one days to file a supplemental opposition. On September 19, 2011, plaintiff filed a supplemental opposition. (Dkt. No. 78.) On September 21, 2011, defendants filed a reply to plaintiff's supplemental opposition. (Dkt. No. 79.)
This action is proceeding on the amended complaint filed August 24, 2010. Plaintiff alleges that he was transferred from the Yolo County Jail to the Deuel Vocational Institution ("DVI"). Upon his arrival at DVI, Yolo County sheriffs deputies allegedly told officers at DVI that plaintiff was a "legal beagle" and that they should watch him.
Plaintiff alleges that on May 26, 2010, he was deprived of his right to a daily shower by defendant Hall. Plaintiff also alleges that continuing after May 5, 2010, defendant Hall withheld plaintiff's legal mail, rerouted his regular mail and prevented plaintiff from receiving mail. Plaintiff also claims that defendant Hall removed plaintiff's name from the list for law library access. Plaintiff alleges that defendant Hall took all of the actions described above in retaliation for plaintiff being a "legal beagle."
Plaintiff alleges that on June 25, 2010, defendant Colon deliberately slammed the steel door of plaintiff's cell on plaintiff, causing pain to plaintiff's shoulder and ankle.
Plaintiff seeks compensatory, punitive and nominal damages, declaratory relief and unspecified injunctive relief.
C. Claims Against Defendant Colon
Legal Standard for Eighth Amendment "[T]he unnecessary and wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319 (1986). "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Wilkins v. Gaddy,130 S. Ct. 1175, 1178 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)) (internal quotations omitted).
Not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9. As the Supreme Court recently explained in Wilkins:
The 'core judicial inquiry' ... [is] not whether a certain quantum of injury was sustained, but rather 'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.' ... This is not to say that the "absence of serious injury" is irrelevant to the Eighth Amendment inquiry. '[T]he extent of injury suffered by an inmate is one factor that may suggest 'whether the use of force could plausibly have been thought necessary' in a particular situation.' The extent of injury may also provide some indication of the amount of force applied. . .
Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury. Accordingly, the Court concluded in Hudson that the supposedly 'minor' nature of the injuries 'provide[d] no basis for dismissal of [Hudson's] § 1983 claim' because 'the blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes.' 503 U.S. at 10.
130 S. Ct. at 1178--1179 (some internal citations omitted).
It is undisputed that on June 25, 2010, defendant Colon was operating the controls for plaintiff's cell door.
Citing 42 U.S.C. § 1997(e)(e), defendant Colon first moves for summary judgment on grounds that plaintiff suffered no physical injury. This section provides that, "[n]o federal action may be brought by a prisoner confined in a . . . prison . . ., for mental or emotional injury suffered while in custody without a prior showing of physical injury."
The physical injury requirement only applies to claims for mental and emotional injuries and does not bar an action for a violation of a constitutional right. See Oliver ...