The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion for leave to file a second dispositive motion, filed on June 28, 2012. Dkt. 64. Plaintiff filed an opposition to this motion on July 5,2012 and defendant replied on July 12, 2012. Dkts. 65, 68. Upon consideration of the briefs in support of and opposing the motion the court now finds as follows: BACKGROUND
In the order and findings and recommendations dated July 12, 2011, the undersigned granted defendant's motion for summary judgment as to plaintiff's Fourteenth Amendment claim and denied the motion as to plaintiff's Eighth Amendment claim. Dkt. 33 at 17.*fn1 Thus the action proceeds only as to plaintiff's claim that he was subjected to a violation of his rights under the Eighth Amendment by defendant Willis who confiscated his identification card for ten days which interfered with his psychiatric treatment.*fn2 Id. Specifically, the court found the following material issues in dispute: whether defendant intentionally interfered with plaintiff's psychiatric care, whether he knew that plaintiff was being denied treatment; and whether plaintiff was, in fact, being denied treatment. Id at 7. Defendant claims to now have before it an "expanded factual record" which justifies a second summary judgment motion and the opportunity to defeat plaintiff's remaining claim.
Defendant raises three factual matters that, if shown to be true, defendant claims would compel summary judgment in its favor. Defendant does not claim that this new evidence was unavailable at the time it first moved for summary judgment or that anything precluded defendant from obtaining the evidence. Rather, defendant explains that in light of the court's July 12, 2011 order addressing these factual matters still in dispute, defendant undertook a further inquiry to "address some of the factual questions the Court believed had gone unanswered." Dkt. 64 at 2.
Plaintiff responds that the purportedly new evidence does not compel summary judgment on any of the disputed facts already considered by the court. The court will address each factual matter raised by defendants to determine whether or not a successive summary judgment motion is warranted.
In addressing the issue of whether defendant presents new evidence that might compel summary judgment on plaintiff's Eighth Amendment claim, it is useful to recall the elements of an Eighth Amendment violation under § 1983, for which defendant must produce sufficient evidence showing that there is no genuine factual dispute. Here, defendant must demonstrate the absence of a material fact that defendant was deliberately indifferent to plaintiff's need for psychiatric treatment. See Estelle v. Gamble, 429 U.S. 97, 105 (1976). This requires a showing that defendant disregarded a substantial risk of serious harm of which he was actually aware. See Farmer v. Brennan, 511 U.S. 825, 838-42.
Defendant is reminded that plaintiff's burden to show the presence of a genuine issue of fact does not require him to establish a fact conclusively in his favor. Rather, he need only present evidence from which a reasonable jury might return a verdict in his favor. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 631 (9th Cir. 1987).
The Court's Discretion to Allow Successive Summary Judgment Motions
Defendant likens his request to the "expanded factual record" which justified a second summary judgment motion in Hoffman v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010). Dkt. 64 at 3. But the analogy is misplaced. It is true that a district court has wide discretion to permit successive motions for summary judgment, which is particularly appropriate on an expanded record and to foster the "just, speedy, and inexpensive resolution" of lawsuits. Id at 911-12. The court, however, also cautioned of the potential for abuse of this procedure and reiterated the discretion maintained by district courts to "weed out frivolous or simply repetitive motions." Id at 911. The court finds defendant's motion more akin to the latter rather than the former.
In Hoffman, defendant was permitted a second summary judgment motion after a mistrial on the merits was declared. Id at 910. The expanded factual record - which justified the successive motion - included testimony from the trial, testimony of an expert deposed after the deadline for filing the initial dispositive motions, and the testimony of a new expert witness whom the court allowed to be added after the mistrial. Id at 912. None of those facts, or any similar circumstances, are present here. Although defendant treats the court's order on summary judgment as an invitation to submit further briefing, it was not. The "expanded factual record" that defendant claims to now have before it does not include any evidence that could not have been obtained and included in defendant's first motion for summary judgment. Indeed, all of the factual bases cited by defendant for allowing a successive motion were before the court and referred to in its July 12, 2011 order.
Plaintiff's Need for an ID Card
The gravamen of plaintiff's allegations is that defendant confiscated plaintiff's identification card, without explanation, for ten days which interfered with plaintiff's ability to receive the psychiatric treatment that he was required to undergo. Dkt. 12 at 3. As a result, plaintiff suffered "severe emotional distress, mental anguish, worry, anger, depression, grief and inability to sleep." Id at 42-44. A material issue of fact, therefore, is the extent to which plaintiff required his identification card in order to receive his psychiatric medication and whether defendant and plaintiff were aware of the requirements for obtaining plaintiff's medication.
In the summary judgment order, this very issue was addressed. Although defendant averred that he did not intentionally interfere with plaintiff's ability to take his psychiatric medication, the court found that the evidence of a notice outside the facility's pill line clinic window reading "No ID Card, No Medication," together with plaintiff's averment that defendant knew plaintiff was a psychiatric patient and was required to ensure that he received his medication, raised a genuine issue of material fact that could not be resolved on summary judgment. See Dkt. 33 at 12; 14-15. That defendant now offers evidence of other ways for plaintiff to get his medication and that defendant was aware of these alternatives when he confiscated plaintiff's identification card, does not negate the prior evidence plaintiff put forth. It only furthers the court's finding that the availability of plaintiff's medication is, indeed, a genuine issue of material fact. Plaintiff's Ability to Replace his ID Card
Defendant claims to have evidence - in the form of third-party declarations - showing that plaintiff might have easily replaced his own identification card during the time in which defendant had confiscated his. Dkt. 64 at 4. But such evidence is more akin to an affirmative defense that plaintiff had a duty but failed to mitigate his damages rather than a dispositive liability issue for which plaintiff bears the burden of proving at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To the extent that the issue is meant to be one of causation, "no harm-no foul" issues of fact remain; such as the time in which plaintiff could have availed himself of this alternative procedure, whether plaintiff should have known of this procedure and so forth. It is somewhat analogous to a deliberate indifference claim arising from a botched prison surgical procedure to which plaintiff objected in the first place but that defendant ...