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Kevin Bartholomew v. Terry Moore

January 26, 2012

KEVIN BARTHOLOMEW, PLAINTIFF,
v.
TERRY MOORE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. He sues defendants Lane and Cheser*fn1 (defendants) for actions taken while they were employed with the California Department of Corrections and Rehabilitation (CDCR) at California State Prison, Solano (CSPS).*fn2 Plaintiff claims that both defendants violated his First and Fourteenth Amendment rights. Defendants have filed a motion for summary judgment.

I. Plaintiff's Allegations*fn3

On October 15, 2007, plaintiff was placed in administrative segregation pursuant to an investigation into whether prison disciplinary proceedings should be initiated against him. An ancillary effect of plaintiff's being placed in administrative segregation was that he was terminated ("unassigned," in the prison jargon) from his job in the Prison Industries Authority (PIA) Metal Fabrication Plant at CSPS.

Plaintiff was released from administrative segregation on October 25, 2007. That day, plaintiff filed prisoner grievance No. CSP-S-07-03771 in which he complained about being unassigned from his job in the paint department at the PIA plant. In response to the grievance, plaintiff was informed by L. Rodrigues that he was eligible to return to his job at the plant and that he should request an interview with plant staff as the plant conducted its own hiring. Plaintiff submitted his request for interview to defendant Lane, Superintendent of Metal Products, on November 7, 2007.

Plaintiff alleges that he spoke with defendant Cheser that same day regarding plaintiff's grievance and the prospects for plaintiff being rehired at the PIA plant. According to plaintiff, Cheser said, "You didn't have to file this [appeal], but if you withdraw your appeal, and choose to work all day on Friday (volunteer overtime) instead of going to [Jumu'ah] (muslim) prayer on Fridays, I will have Brown (Office Clerk) type and process the paperwork to inmate assignment office to re-issue you a new workcard." Plaintiff did not withdraw his appeal and Cheser did not submit the paperwork necessary for plaintiff to be issued a workcard.

On November 8, 2007, plaintiff submitted his grievance to the next level of review. In the grievance plaintiff asserted that he requested an interview for employment at the PIA plant with defendant Lane but questioned the need for an interview. He asserted that his reassignment to the PIA plant was being obstructed by defendant Cheser because plaintiff is a Muslim.

On November 19, 2007, plaintiff reported to defendant Lane that defendant Cheser was discriminating against him because of his religious beliefs. Lane allegedly responded, "you pissed [Cheser] off by filing that [grievance]. You brought this on yourself, just drop the [appeal] and I will talk to [Cheser.]"

That same day, plaintiff was informed by defendant Lane that he should complete an application for employment in the fabrication plant and return it to him. Lane told plaintiff that upon receipt of the application, plaintiff would be given equal consideration for employment at the plant. It is not clear whether plaintiff ever completed the application.

The appeal process for grievance No. CSP-S-07-03771 was completed on August 12, 2008. In the final decision, the reviewer noted that plaintiff still sought a job at the PIA plant and, at that time, plaintiff's name was on the waiting list for employment. The reviewer noted that plaintiff would be considered for a job at the plant as soon as one became available. It does not appear that plaintiff was ever hired back at the plant.

II. Summary Judgment Standard

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 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) (quoting Fed. R. Civ. P. 56(c)). "[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. In such a circumstance, ...


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