The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT,
AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT
Plaintiff Kevin E. Fields, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 23, 2009. This action for damages is proceeding against Defendant Banuelos for retaliation, in violation of the First Amendment of the United States Constitution. (Docs. 1, 14.) Plaintiff's claim arises from an incident on June 16, 2006, in which Defendant confiscated his Kool-Aid and then wrote him up for possessing pruno, allegedly in retaliation for refusing the previous day to waive his right to discovery in a pending federal civil action.
On September 15, 2011, Defendant filed a motion for summary
judgment.*fn1 (Doc. 31.) Following various extensions
of time, Plaintiff filed an opposition on January 23, 2012,*fn2
Defendant filed a reply on February 10, 2012. (Docs. 42-44, 47.) Defendant's motion for summary judgment has been submitted upon the record, and the Court now issues the following ruling. Local Rule 230(l).
II. Summary Judgment Legal Standard
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). While the Court may consider other materials in the record not cited to by the parties, it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all reasonable inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).
Defendant does not bear the burden of proof at trial and in moving for summary judgment, he need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010). "Where [Defendant] has met that burden, the burden then shifts to [Plaintiff] to designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle, 627 F.3d at 387. "This burden is not a light one." Id. Plaintiff "must show more than the mere existence of a scintilla of evidence." Id.
A. Allegations in Verified Complaint*fn3
In his complaint, Plaintiff, an inmate confined in the Security
Housing Unit (SHU) at California State Prison-Corcoran (Corcoran),
alleges that on June 15, 2006, Defendant Banuelos, a correctional
officer, approached his cell and told him that his attorney was on the
phone and wanted to know if Plaintiff would waive discovery for thirty
days while she moved for summary judgment. Plaintiff said he was
acting as his own attorney and asked Defendant if he meant that Deputy
Attorney General Jennifer Nygaard was on the phone.*fn4
Defendant said yes and Plaintiff told him to tell Ms. Nygaard
that "hell no," he would not waive discovery for thirty days so she
could move for summary judgment. (Doc. 1, Comp., ¶11.) Defendant asked
Plaintiff why he did not want to waive discovery, and Plaintiff told
him it was none of his business and to just tell Ms. Nygaard what
Plaintiff said. Defendant became irate and began making threats and
cursing as he walked away.
On June 16, 2006, Officers Smith and Contreras came to Plaintiff's cell, told him he had been added on to the nurse's line, and asked if he wanted to go. Plaintiff told them he did and he was removed from his cell, escorted to the medical clinic, and seen by the nurse. When Plaintiff returned to his cell, other inmates informed him that Defendant entered his cell as soon as he left, confiscated two six-ounce bags of Kool-Aid, and threw them away in the rotunda trash can.*fn5 When Plaintiff was secured in his cell, he told Officers Smith and Contreras to tell Defendant he wanted to speak with him. They said they would, and Defendant appeared at Plaintiff's cell five minutes later. ///
Plaintiff asked Defendant why he confiscated Plaintiff's two bags of Kool-Aid in retaliation for refusing to waive his right to discovery, and he told Defendant he would need a cell search slip so he could demonstrate that Defendant conducted a retaliatory cell search, arbitrarily confiscated Plaintiff's Kool-Aid, and threw it away. Defendant told Plaintiff that if he wanted a cell search slip, he was going to write Plaintiff up and say he had pruno in his cell, as that is what he confiscated, not Kool-Aid. Plaintiff told Defendant he wanted a cell search slip and Defendant said he would give Plaintiff a write-up if that was what he wanted. Defendant then turned and walked away.
Approximately ten minutes later, Defendant returned with a copy of a property confiscation slip which stated that two plastic bags were removed because they contained unidentified liquid and smelled of alcohol, and they were disposed of pursuant to institutional procedures. Defendant then again told Plaintiff he would be getting a CDCR 115 Rules Violation Report (RVR). As Defendant was walking away, inmate Isaac Montgomery yelled to Defendant that he had witnessed everything, that he had given Plaintiff the Kool-Aid, and that he would be Plaintiff's witness at the disciplinary hearing. Defendant gave inmate Montgomery the middle finger, said he would bring some cheese later, and called inmate Montgomery a rat.
On June 20, 2006, Officer Counter gave Plaintiff a copy of the RVR, which was authored by Defendant and which charged Plaintiff with the manufacture of alcohol.
Plaintiff denies that there was pruno or any other illegal substance in his cell at any time.
1. Plaintiff is serving two life sentences: one for assault with a deadly weapon and another for assault on a correctional officer. Plaintiff has no release date.
2. Plaintiff has been housed at Corcoran since December 1, 2000, and on June 15, 2006, he was housed, single-celled, in the SHU 4B1R, cell 50.
3. Before June 15, 2006, Defendant had little or no interaction with Plaintiff and he showed no animosity toward Plaintiff.
4. The Fields v. Woodford case concerned prison staff at San Quentin rather than at Corcoran. Defendant was not a party to the Fields v. Woodfordcase and he knew nothing about the case, including the names of the defendants and whether or not they were correctional officers. Defendant did not know what the legal terms "discovery," "summary judgment," and "to waive discovery" meant; and he was not aware that Plaintiff had ever sued correctional officers. Defendant knew nothing about Plaintiff's lawsuits or his litigation history.*fn6
5. Deputy Attorney General Jennifer Nygaard, who was the defendants' counsel in Fields v. Woodford, does not recall if she called the prison on June 15, 2006, but her usual course of practice would be to speak directly to Plaintiff and not through Defendant Banuelos. Ms. Nygaard's usual course of practice would have been to take notes about the call on a legal pad. She reviewed her notes in the Fields v. Woodfordfile, and there is no notation that she called the prison on June 15, 2006.
6. On November 10, 2005, the court in Fields v. Woodford ordered the defendants to file a motion for summary judgment no later than ninety days from the date the answer was due. On January, 30, 2006, Plaintiff moved to file a second amended complaint. Due to Plaintiff's pending motion to amend, on April 3, 2006, the defendants moved for an extension of time to file a dispositive motion. On May 14, 2006, Plaintiff served his first request for the production of documents on the defendants. Because Plaintiff's motion to amend was still pending, Ms. Nygaard wrote to Plaintiff requesting that he stipulate to a stay of discovery pending the court's order on his motion to amend. In the letter, Ms. Nygaard asked Plaintiff to return the signed stipulation immediately if he agreed to its terms, so that she could file it by June 9, 2006. Plaintiff signed the stipulation on May 29, 2006. By that time, Ms. Nygaard had already filed the defendants' motion to stay discovery, on May 23, 2006.
The stipulation was received by the court on June 5, 2006, and on June 12, 2006, the court issued the following orders: (1) Plaintiff's motion to file a second amended complaint was granted; (2) the defendants' motion for an extension of time to file a summary judgment was granted; (3) dispositive motions were to be filed within sixty days; and (4) the defendants' request for a stay of discovery pending the court's ...