The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 37)
Plaintiff Lamont Shepard ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed January 6, 2010, against L. A. Martinez, R. Perez, P. Garcia, J. Soto, E. De la Cruz, and A. Trevino for excessive force in violation of the Eighth Amendment. On February 9, 2012, Plaintiff filed a motion for summary judgment. ECF No. 37. On April 9, 2012, Defendants filed their opposition. ECF No. 45. On April 24, 2012, Plaintiff filed his reply. ECF Nos. 48, 52. The matter is submitted pursuant to Local Rule 230(l).
II. Summary Judgment Standard
Summary judgment is appropriate when it is demonstrated that there exists no genuine dispute as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 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 4 burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in 5 reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" 6
Id. at 324. Indeed, summary judgment should be entered, after adequate time for discovery and upon 7 motion, against a party who fails to make a showing sufficient to establish the existence of an 8 element essential to that party's case, and on which that party will bear the burden of proof at trial. 9
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, 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.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine dispute as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the 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. Fed. R. Civ. P. 56(c); 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, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2002); 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, Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 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 2 trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the 3 pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" 4
Matsushita, 475 U.S. at 587 (quoting former Rule 56(e) advisory committee's note on 1963 5 amendments). 6
In resolving a motion for summary judgment, the court examines the pleadings, depositions, 7 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, Anderson, 477 U.S. at 255, and all 9 reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)).
Finally, to demonstrate a genuine dispute, 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 586-87 (citations omitted).
A. Failure to Comply with Local Rules
Plaintiff lists undisputed facts in his motion for summary judgment without citation. Pl.'s Mem. P. & A. 2-6. Pursuant to Local Rule 260(a),
Each motion for summary judgment or summary adjudication shall be accompanied by a "Statement of Undisputed Facts" that shall enumerate discretely each of the specific material facts relied upon in support of the motion and cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to establish that fact. The moving party shall be responsible for the filing of all evidentiary documents cited in the moving papers.
An examination of Plaintiff's statement of facts indicates that Plaintiff does not provide the particular citation to the document relied upon to establish the facts. "A party asserting that a fact cannot be genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587. For the 2 sake of clarity, the Court will list Plaintiff's statement of facts and Defendants' disputes. 3
B. Plaintiff's Unsupported Statement of Facts and Defendants' Disputes
1. Plaintiff, a prisoner of the State of California, is serving a life sentence for first degree 5 murder. Defendants do not dispute this fact. 6
2. On March 15, 2009, Plaintiff informed Director Tilton via Declaration that one of 7 your officers told me (Plaintiff) that the officers here at C.S.P. -- Corcoran has it out for me, 8 (Plaintiff) a "red light," and that Plaintiff life was at stake. 9
Defendants dispute this fact because there is no citation to any evidence, and the fact contains inadmissible hearsay and is irrelevant to the events.*fn1
3. On July 28, 2009, Plaintiff was threaten by Defendant Martinez, and informed Plaintiff that, "we go get you N.Word." Plaintiff immediately filed an Inmate Appeal to inform the Warden of Defendant Martinez's intentions to no avail.
Defendants contend that Defendant Martinez never threatened Plaintiff. Martinez Decl. ¶ 44.*fn2
4. On August 4, 2009, Defendant Martinez worked overtime on third watch alone with Defendants De la Cruz and Soto to carry out their threat.
Defendants do not dispute that Defendants Martinez, De La Cruz, and Soto worked overtime on August 4, 2009. However, Defendants dispute all other facts, contending that Defendants Martinez, De La Cruz, and Soto did not threaten, assault, or beat Plaintiff on August 4, 2009. Martinez Decl. ¶¶ 3-7, ...