The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel. On January 13, 2012, defendant Janzen filed a motion for summary judgment. Plaintiff filed an opposition on February 8, 2012, and defendant filed a reply on February 15, 2012. On February 8, 2012, plaintiff filed a motion to supplement the amended complaint. Defendant did not oppose or address the motion to supplement. As set forth below, this court recommends that defendant Janzen's motion for summary judgment be granted, and plaintiff's motion to amend be denied without prejudice to its renewal if accompanied by a proposed second amended complaint.
II. Plaintiff's Amended Complaint
After filing a 46-page original complaint against six defendants, on November 29, 2010, plaintiff filed a verified amended complaint naming R. Janzen as a defendant, and alleging:
On 10-8-09, at F.S.P. Inmate Assignment Office, Lt. R. Janzen refused to place [plaintiff] on the Priority Ducat List (Instnl.) [sic] at 7:30 AM for escort release to law library the day after riot/race based lockdown; preventing him from obtaining copies to timely file writ of certiorari, in the last remaining 8 days before his U.S. Supreme Court deadline, denying his First Amendment access to the Courts. (Extension of time and Writ was denied as "Out of time," and no other [forum] or court available for habeas relief.
III. Motion for Summary Judgment
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated 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., citing Fed. R. Civ. P. 56(c). 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. 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 the 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).
By order filed January 4, 2011, the court advised plaintiff of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 13); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
B. The Parties' Arguments
Defendant Janzen contends that he was not responsible for plaintiff's inability to attend the library on October 8, 2009. Although plaintiff was included on a request list to go to the prison library on October 8, 2009, the modified program status issued by the warden after a race riot occurred precluded plaintiff from attending the law library that day. Defendant argues that he had no control over which inmates were allowed access to the library on October 8, 2009, and he was required to follow the warden's orders. Defendant Janzen also argues that because plaintiff had access to the library on October 14, 2009, prior to the filing deadline, plaintiff's claim that he missed a court deadline due to being denied access to the library on October 8, 2009, eight days before the deadline ran, is defeated.
In addition, defendant argues that plaintiff's claim is barred by Heck v. Humphrey, 512 U.S. 477, 485-87 (1994). Defendant contends that plaintiff's lost opportunity to attack his sentence and conviction, either by direct appeal or habeas petition, has no value unless his conviction or sentence was, in fact, unlawful; thus any judgment awarding plaintiff damages for this claim would necessarily imply that plaintiff's underlying conviction or sentence is invalid. Finally, defendant contends that he is entitled to qualified immunity.
Plaintiff's unverified opposition appears to rest on procedural, rather than substantive, grounds. Plaintiff argues that defendant's motion for summary judgment is premature, that discovery is not completed, and that defendant raised a new defense which introduced issues not raised in the pleadings. Plaintiff reiterates his disagreement with the court's prior order denying plaintiff's motion to compel discovery as untimely, and denying his request to be provided a free copy of his deposition transcript.
In reply, defendant argues that plaintiff failed to present admissible evidence demonstrating that a genuine issue of material fact precludes entry of summary judgment. In plaintiff's verified complaint, plaintiff states that defendant Janzen refused to place plaintiff on the priority ducat list the day after the prison was placed on lockdown. (Dkt. No. 10 at 3.) However, defendant points out that plaintiff submitted no evidence in support of this statement. Plaintiff also failed to submit evidence to rebut the admissible evidence presented by defendant that demonstrates (a) plaintiff was unable to attend the library on October 8, 2009, because the warden placed the prison on a modified program that allowed no black inmates to enter the library on October 8, 2009, and (b) defendant Janzen's only role was to review and sign off on priority library pass requests from the librarian, and ...