The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Pending before the court in this § 1983 prisoner civil rights action is defendants' motion for summary judgment filed on October 26, 2011 (docket # 55); plaintiff filed his opposition on November 7, 2011 (# 56), after which defendants filed a reply on November 16, 2011 (# 58). By order, filed on February 17, 2012 (# 62), following adjudication of plaintiff's motion to compel discovery, plaintiff was granted forty-five days to file a supplement to his opposition, which was filed on March 28, 2012 (# 66); defendants were granted an extension of time to file a reply to the supplemental opposition, which they did on April 18, 2012 (# 69). Also pending is plaintiff's motion for sanctions, filed on March 12, 2012 (# 64), and opposed by defendants on March 26, 2012 (# 65). The subsequent motion for sanctions, filed on May 7, 2012 (# 70), which defendants opposed on May 18, 2012 (# 71) as duplicative, is properly construed as a reply. The court will first set forth the remaining allegations of plaintiff's first amended complaint, proceed to consider plaintiff's motion for sanctions for defendants' alleged failure to comply fully with a court order regarding discovery production and will then address defendants' dispositive motion.
Plaintiff now proceeds against defendants Correctional Officer (C/O) Beyer; C/O Carter; and Correctional Sergeant Fowler in the remaining allegations of the first amended complaint. On April 29, 2009, defendant C/O Beyer ordered plaintiff to pack his property for a move to a different housing unit despite plaintiff's explanation to him that he had physical limitations and qualifying disabilities under the Americans With Disabilities Act (ADA) and that he had been ordered by the chief medical officer not to lift more than two pounds. First Amended Complaint (FAC), p. 3. Plaintiff tried to move several boxes to show defendant Beyer the chrono showing he had had recent surgery on the ulnar nerve in his left hand, which had caused atrophy of the muscle. Id. In doing so, he re-injured his ulnar nerve causing extreme pain and more muscle atrophy. Id. at 4. Plaintiff asked to speak to a lieutenant or sergeant; instead, defendant Beyer hand-cuffed him, placed him in Administrative Segregation and issued false misconduct charges against him alleging he was delaying a peace officer and refusing to move. Id., at 3-4, 15, 25-29.
Plaintiff claims that the day before, on April 28, 2010, defendant C/O Carter had made false allegations against him (plaintiff) to defendant Corr. Sgt. Fowler which had led to defendant Fowler's threatening to move plaintiff if he were disrespectful toward any C/O. FAC, p. 4. Defendant Carter accused plaintiff of "snitching on the C/O's" by writing inmate grievances and Men's Advisory Council (MAC) Reports to the associate warden. Id. Plaintiff therefore alleges retaliation against him by these three defendants for his grievances, resulting in false disciplinary charges in violation of his First Amendment rights. Id. He also alleges that defendant Beyer violated his rights under the ADA. Id., at 4-5. Plaintiff seeks injunctive relief and money damages. Id., at 11.*fn1
Plaintiff later proceeds from the position that his claims also arise under the Eighth Amendment for deliberate indifference to serious medical needs and alleges (unspecified) Fourth and Fourteenth Amendment violations, which defendants observe in their summary judgment motion (MSJ). MSJ, docket # 55-1 at 4, citing Docket # 48 at 3-4.*fn2 Plaintiff did not properly seek to amend or supplement the claims of his first amended complaint; however, he does make an express reference in the first amended complaint to his Fourth (as well as First Amendment) rights having been violated by defendant Beyer in having denied his request to speak with a lieutenant or sergeant with regard to his physical limitations. FAC, pp. 3-4. Although the claim does not appear to be colorable, the court will liberally construe the allegations to include a claim of a Fourth Amendment rights violation and address it below. As for the Eighth Amendment deliberate indifference claim, it could be logically inferred with respect to defendant Beyer under the circumstances of that claim. To the extent plaintiff also seeks to invoke the Fourteenth Amendment's due process and, possibly, equal protection provisions, the gravamen of any supplementary cause of action would appear to arise under the Eighth Amendment. Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871 (1989) (amendment providing "an explicit textual source of constitutional protection...must be the guide for analyzing" claims implicating government conduct over the "more generalized notion of 'substantive due process....'"); Whitley v. Albers, 475 U.S. 312, 327,102 S. Ct. 1078 (1986) (Fourteenth Amendment Due Process Clause affords prison inmate "no greater protection than does the Cruel and Unusual Punishments Clause" of the Eighth Amendment. Nevertheless, the court will also address any claim under the Fourteenth Amendment below.
Plaintiff's Motion for Sanctions
Plaintiff asks for sanctions to be imposed upon defendants for what he contends is their failure to comply with the court's February 17, 2012, order, wherein the undersigned had, while denying the greater part of plaintiff's motion to compel discovery, ordered defendants to produce the portion of the ADA logbook at CSP-Solano sought by plaintiff in his third request for production from defendant Fowler: "'the (ADA) log book that was in building #3 at CSP-Solano on or about April 27, 2009 and/or April 28, 2009'" and from defendants Beyer and Carter: "production of the same logbook for 'on or about April 29, 2009.'" See Order at # 62, pp. 9-10, 12. The court noted the apparent particular relevance of the documentation with respect to plaintiff's specific claim under the ADA against defendant Beyer. Id., at 10. Defendants' counsel was also directed to ensure plaintiff prompt access to his medical and central file records at Pleasant Valley State Prison (PVSP) if plaintiff wished to inspect them there. Id., at 10, 12
By his motion, plaintiff seeks to implicate defendants for their subsequent failure to produce the logbook documentation premised on the assertion that while a binder of documents that show inmates with ADA disabilities is maintained in Building 3 at CSP-Solano, it is only for the inmates currently confined there and that once a prisoner has transferred, the documents that apply to that prisoner are removed from the binder and discarded. Motion at # 64, p. 2 & at p. 14, attaching defendants' further response to third request for production. The response further asserts that no pages referencing plaintiff and his disability from April 2009, have been available since his transfer from CSP-Solano to PVSP, which occurred on September 1, 2010. Id. at 14. Plaintiff maintains that the documentation would have shown that plaintiff was in fact an ADA prisoner with a physical limitation that included that lifting with the left arm was to be limited to no more than two pounds "due to muscle atrophy, compactment syndrome" and would have shown plaintiff had a left leg weakness. Id. at 5. Plaintiff maintains that his long experience as a prisoner, since 1982, has made him aware of how records are kept in his medical and central files and that all ADA documents are generated by an ADA coordinator who produces the documentation and stores the information within computer files. Id. at 2-3. Plaintiff accuses the defendants of deliberate destruction or discarding of the logbook documentation which evidence would have supported his claim of being an ADA prisoner with physical limitations whose ADA rights defendant Beyer allegedly violated. Id. at 3, 5. Plaintiff also contends, as of the date of his filing the instant motion, that defendants' counsel failed to comply with the Feb. 17, 2012, order to provide plaintiff prompt access to his medical and central file records; plaintiff maintains that the records should have accompanied him from CSPSolano to PVSP to Deuel Vocational Institution (DVI), where plaintiff is presently incarcerated. Id. at 4, 10. Plaintiff seeks various forms of sanctions from staying/delaying consideration of the motion for summary judgment to a default judgment entered against defendants. Id. at 8.
In opposition, defendants' counsel avers that he acted promptly upon receiving plaintiff's February 29, 2012, notice that he wished to inspect his prison files by, the following Monday March 5, 2012, contacting the DVI litigation coordinator and requesting that plaintiff be allowed the opportunity to inspect his central and medical files by March 16, 2012, and later that day, confirming the request by email. Opposition (Opp.) at # 65, p. 2, citing Declaration of David Carrasco, Supervising Deputy Attorney General, ¶¶ 3-4. Counsel includes a copy of a CDC-128 B document that he received on March 14, 2012, confirming plaintiff's review of his central file. Id., at 2, citing Carrasco Dec., ¶ 5 & Exhibit 1. The form at Ex. 1 contains what appears to be plaintiff's signature, as well as a "staff witness signature," a checked box next to the statement "I have reviewed my central file," and a date of 3/14/12. The form at Ex. 2 contains a statement indicating that plaintiff had "reviewed his Department of Medical Records Chart" without confidential information having been removed prior to the review on 3/16/12, evidently signed by plaintiff on that date and by a health records technician, which counsel states that he received on March 16, 2012. Id., citing Carrasco Dec., ¶ 6 & Ex. 2.
As to plaintiff's allegations regarding the ADA logbook, defendants set forth that each building at CSP-Solano has a binder with lists of prisoners with disabilities and information about their disabilities, that officers assigned to each building are responsible for their own binders and for keeping them updated with current information as well as for purging the pages containing information about prisoners no longer housed there. Opp., p. 2, citing Declaration of H. Johnson, employed by CDCR at CSP-Solano as ADA Counselor, ¶¶ 1-3. Thus, according to declarant Johnson, while "[a] binder of documents listing inmates with ADA disabilities was and is maintained at CSP-Solano, Building 3," it only lists those inmates who are currently housed in that building and in that institution. Id., citing Johnson Dec., ¶ 4. Once a prisoner is transferred to another institution, according to H. Johnson, the documents concerning that inmate are removed and discarded from the binder, and it is one of ADA Counselor Johnson's duties to inspect each building's binder to make sure they are current and pages that concern prisoners no longer housed in a particular building have been purged. Id. at 3, citing Johnson Dec., ¶¶ 5-6. Therefore, any pages that referenced plaintiff and his disabilities in April 2009 have not been available since his Sept. 1, 2010, transfer to PVSP from CSP-Solano. Id., citing Johnson Dec., ¶ 7. Nevertheless, declarant Johnson avers that after searching the binders in each building, she also searched her office records for information concerning plaintiff but that as her records only go back to April of 2011, his name did not appear on those records. Id., citing Johnson Dec., ¶ 8. Therefore, defendants contend, as a reasonable search was conducted but disclosed no documents responsive to plaintiff's request, they should not be subject to sanctions. Id.
Plaintiff's motion for additional sanctions, filed on May 7, 2012, which was opposed by defendants as, inter alia, duplicative, on May 18, 2012, is more properly deemed a reply (if a belated one) to defendants' opposition to plaintiff's March 12, 2012, motion for sanctions, and is so construed by the undersigned. In the reply, plaintiff concedes that defendants' counsel did arrange for plaintiff's inspection of his medical and central files but complains that he has yet to receive any of the copies he sought from his review of the central file documents and has not been provided some of the copies he asked for from the medical file following his review. Reply, # 70, pp. 1-3. Plaintiff also emphasizes defendants' declaration that correctional officers assigned to each building are responsible for keeping their ADA binders updated with current information on prisoners in their building but again asserts that ADA staff at CSP-Solano which produces such information keep it stored on computer and/or in the "Archive Dept." Id., at 3. Plaintiff provides no evidence for this or for any alleged destruction of documents (spoliation) beyond his belief based on his long years of incarceration. The court cannot find defendants to be in default on plaintiff's ADA claim simply because their record-keeping with respect to ADA prison logbooks is not to plaintiff's liking.*fn3 On the other hand, neither can defendant Beyer show that there was no evidence in the ADA logbook that should have alerted him to plaintiff's disability or physical limitations at the relevant period. As for plaintiff's access to his prison and medical records, defendant's counsel discharged the court's order by undisputedly making sure that he had reasonably timely access and sanctions cannot be imposed on the ground of plaintiff's not yet having achieved all the document copies he sought after his review. Plaintiff's motion for sanctions will be denied.
Motion for Summary Judgment
Defendants move for summary judgment on the grounds that (1) plaintiff's retaliation claims fail because defendants neither falsely accused nor threatened him or took any action against him motivated by plaintiff's participation in a protected activity; (2) plaintiff's Fourth, Eighth and Fourteenth Amendment claims fail because there is no evidence to support them; (3) defendants are entitled to qualified immunity because they violated no constitutional right. Notice of Motion for Summary Judgment, p. 1. Defendants do not address plaintiff's claim against defendant Beyer that plaintiff's rights under the ADA were violated.
Summary Judgment Standards under Rule 56
Summary judgment is appropriate when it is demonstrated that there exists "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, 106 S. Ct. 2548, 2553 (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, 106 S. Ct. at 2552. "[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, 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. at 323, 106 S. Ct. at 2553.
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 does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). In attempting to establish the existence of this 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, 106 S. Ct. at 1356 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, 106 S. Ct. 2505, 2510 (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 631. 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.'" ...