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 October 12, 2011, defendants filed a motion for summary judgment. Plaintiff filed an unverified opposition on October 19, 2011, and defendants filed a reply on October 24, 2011. As set forth below, this court recommends that defendants' motion for summary judgment be granted.
II. Plaintiff's Amended Complaint
On July 28, 2010, plaintiff filed a verified amended complaint against eleven defendants. Plaintiff's statement of the claim consists of two paragraphs alleging:
On 3-20-10 I was assaulted by Officer Smith . . . , C/O Clemente, C/O Kamman, C/O Prior, and C/O Prowell in the Solano County Jail. I was then placed in "ad seg" by order of Sgt. Dolan and Lt. Marsh. When I was moved C/O Hall and Sgt. Dolan lost or destroyed all of my personal property as retaliation for the alleged battery on a C/O I was charged with.
C/O Wailes found [plaintiff[ guilty for incident report #10000403 by lying and saying I admitted to fighting with the officer, and my phone visiting and commissary privileges were taken for 10 days.
I filed a grievance on C/O Wailes' misconduct and Sgt. Cameron "covered up" Wailes' misconduct by going even further with embellishing my part in the incident and saying I was found guilty due to I was throwing punches at Smith and that I put my foot in the door. Again this reprisal was all retaliation for my use of the grievance system and alleged C/O battery charges. About a week before I was assaulted by C/O Smith I filed a grievance against him for sexual harassment/misconduct and C/O Smith, Sgt. Dolan, Sgt. Cameron, and Sgt. Cullison, and Lt. Marsh all "covered up" that grievance until I brought it to the attention of Internal Affairs. All defendants are Solano County Jail employees . . . . It should also be noted [that] Sgt. Dolan violated my right to call my attorney or any 3 calls, per Penal Code Section 851.5 (I believe?), within 3 hours of my arrest.
(Dkt. No. 16 at 3-4.) Appended to the amended complaint are copies of the felony complaint alleging plaintiff committed battery upon defendant Smith on March 20, 2010; the crime report supporting the felony complaint; and incident reports filed in connection with the March 20, 2010 incident.
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 September 20, 2010, 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. 22); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
On October 19, 2011, plaintiff filed a document styled, "Response to Defendants' Request for Summary Judgment," which is not signed under penalty of perjury. (Dkt. No. 74.) Plaintiff states that "the defendants must be held accountable for their actions. I was assaulted by jail employees. . . ." (Dkt. No. 74.) Plaintiff claimed "Officer Smith lied in his most recent declaration" where he stated that plaintiff "punched him in the face," because in the incident report, Officer Smith stated plaintiff "threw a right cross which he blocked and he gained control of [plaintiff's] upper torso." (Id.) "Excessive force was used." (Id.)
"'It is a general rule that a party cannot revisit theories that it
raises but abandons at summary judgment.'" Davis v. City of Las Vegas,
478 F.3d 1048, 1058 (9th Cir. 2007) (quoting BankAmerica Pension Plan
v. McMath, 206 F.3d 821, 826 (9th Cir. 2000)). See also Ramirez v.
City of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009).*fn1
"'A party abandons an issue when it has a full and fair
opportunity to ventilate its views with respect to an issue and
instead chooses a position that removes the issue from the case.'" Id.
(quoting McMath, 206 F.3d at 826).
Moreover, when a pro se litigant presents no evidence to support his allegations, a district court ruling on a summary judgment motion does not have a duty to search for evidence that would create a factual dispute because "[a] district court lacks the power to act as a party's lawyer, even for pro se litigants." Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (rejecting a pro se plaintiff's contention that in ruling on the defendants' summary judgment motion, the district court should have searched the record for evidence supporting her claims, and holding that by failing to present any evidence to support her opposition, the plaintiff failed to show the existence of any genuine factual dispute); see also Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136-37 (9th Cir. 2001) (citations omitted) (a court "has no obligation to search the entire case file for evidence that establishes a genuine issue of fact when the non-movant presents inadequate opposition to a motion for summary judgment"). "[A] party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (citation omitted).
In addition, Local Rule 260(b) provides, in pertinent part:
Any party opposing a motion for summary judgment or summary adjudication shall reproduce the itemized facts in the 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.
Id. (emphasis added). Finally, the court notes that plaintiff filed a similarly unverified and inadequate opposition in Baker v. Solano County, 2:10-cv-1811 KJM KJN P, in which plaintiff merely stated, "I do oppose the defendants' motion for summary ...