The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING SUMMARY JUDGMENT
Defendant Mark Simonson seeks summary judgment on Plaintiff Joseph Tomada's Fourteenth Amendment substantive due process claim. Defendant argues he is entitled to prevail on his motion since the uncontroverted facts show that he is not liable under the "danger-creation" exception to the general rule that "a . . . failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." (Def.'s Mot. for Summ. J. ("Mot.") 6:14-7:1 (quoting DeShaney v. Winnebago County Dept. Of Social Services, 489 U.S. 189, 197 (1989)).) Alternatively, Simonson argues he "is entitled to qualified immunity" from Tomada's substantive due process claim. (Mot. 17:5.) Plaintiff opposes the motion.
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat. Trust and Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
When the defendant is the moving party and is seeking summary judgment on one or more of a plaintiff's claims,
[The defendant] has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of production, the [defendant] must either produce evidence negating an essential element of the [plaintiff's claim] or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact.
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citations omitted). If the moving party satisfies its initial burden, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and internal quotation marks omitted). The "non-moving plaintiff cannot rest upon the mere allegations or denials of the adverse party's pleading but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial." Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (citation and internal quotation marks omitted).
"A motion for summary judgment cannot be defeated by mere conclusory allegations unsupported by factual data." Angel v. Seattle First Nat. Bank, 653 F.2d 1293, 1299 (9th Cir. 1981). Further, Plaintiff's "mere argument does not establish a genuine issue of material fact to defeat summary judgment." MAI Sys. Corp. V. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993).
In addition, Local Rule 260(b) requires: Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.
If the non-movant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the non-movant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006).
Because a district court has no independent duty to scour the record in search of a genuine issue of triable fact, and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment, . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party's] behalf.
Simmons v. Navajo Cnty., Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010) (citation and internal quotation marks omitted). However, "[the Court] may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
Evidence must be viewed "in the light most favorable to the non-moving party," and "all reasonable inferences" that can be drawn from the evidence must be drawn "in favor of [the non-moving] party." Nunez v. Duncan, 591 F.3d 1217, 1222-23 (9th Cir. 2010). Further, "[t]he district court must . . . undertake some initial scrutiny of the inferences that could be reasonably drawn from the evidence . . . to determine whether there remains sufficient probative evidence which would permit a finding in favor of [Plaintiff] based on more than mere speculation, conjecture, or fantasy." Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680-81 (9th Cir. 1985).
Tomada sues Simonson for personal injuries Tomada sustained in the early morning on July 13, 2008, during an altercation Tomada had with two men after Tomada left the Pastime Bar. (Def.'s Statement of Undisputed Facts ("SUF") ¶¶ 36-39.) Simonson was a City of Benicia police officer on patrol near the Pastime Bar at about 2:00 a.m. that morning, at which time Simonson observed two groups of ...