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Roman Ortiz v. Cox

September 28, 2012



Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on claims raised in plaintiff's complaint against defendant Donald Cox. This matter is before the court on the defendant's motion for summary judgment. Plaintiff opposes the motion. Upon review of the motion, and the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:


All facts stated herein are undisputed unless noted otherwise. At all times relevant to this action, plaintiff was incarcerated at California State Prison -- Solano. Defendant Cox was, and is, a correctional officer at that facility.

On July 16, 2009, defendant Cox issued a Rules Violation Report ("RVR"), Log No. S1-09-07-0465, as to plaintiff for possession of a cell phone charger. Doc. No. 1 at 17. The RVR specifically stated that Cox "observed [plaintiff] pull a cell phone charger from inside his mattress, get down off his bunk and flush it down the toilet. This occurred immediately following his cellmate, Inmate Perez-Lopez flushing his cell phone down the toilet." Id. Plaintiff was issued the RVR on July 20, 2009. Id. at 12.

On July 29, 2009, plaintiff appeared at a hearing on the RVR. Doc. No. 1 at 11-12. The hearing, however, was continued to August 5, 2009 to allow defendant Cox to participate as a witness. Id. At the August 5, 2009 hearing, the evidence presented included the contents of the RVR, defendant Cox's testimony and the testimony of an inmate witness for plaintiff*fn1 . Doc. No. 1 at 15. Plaintiff pled Not Guilty and stated "What's in the report is not true." Id. Following the hearing, the Senior Hearing Officer ("SHO") found plaintiff guilty based on the following: (1) the contents of the RVR; (2) defendant Cox's testimony that he did see plaintiff with a cell phone charger; and (3) the fact that plaintiff did not offer any information to refute the charge. Id. Plaintiff was assessed a 30-day credit forfeiture and a 90-day forfeiture of privilege group. Id.

Plaintiff filed an appeal on August 20, 2009, claiming defendant Cox falsified the charges. See Doc. No. 1 at 8. The informal and first levels of review were bypassed. See id. Plaintiff's appeal was denied at the second and director's levels of appeal. See id. at 6-7, 13-14.


Plaintiff initiated this action on February 10, 2010 against multiple defendants. By order dated April 16, 2010, plaintiff's complaint was screened and found to state a claim only as to defendant Cox. Although plaintiff was granted two opportunities to amend his complaint to state a claim as to the other defendants, he failed to do so. Accordingly, the court found service appropriate only for defendant Cox.

Defendant Cox filed an answer on November 22, 2010, and a scheduling order issued thereafter. On July 17, 2011, Cox filed a motion for summary judgment, which plaintiff opposed. On April 2, 2012, the undersigned issued findings and recommendations recommending that defendant's motion for summary judgment be granted.

During the pendency of the April 2, 2012 findings and recommendation, the United States Court of Appeals for the Ninth Circuit issued its opinion in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012). In light of that opinion, the undersigned vacated the April 2, 2012 findings and recommendations and gave plaintiff supplemental notice pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).*fn2 The court also granted plaintiff additional time to file an amended opposition, which he has now filed. Defendant Cox has filed an amended reply.


Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a 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) (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. "[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, ...

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