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Larry Joe Percival v. Ken Clark

January 18, 2013


The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge



Plaintiff Larry Joe Percival, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 28, 2009. The action proceeds on Plaintiff's claim that while he was incarcerated at California Substance Abuse Treatment Facility and State Prison, Defendant Nail retaliated against him for engaging in protected activity in violation of Plaintiff's rights under the First Amendment to the United States Constitution. (ECF Nos. 21 & 22.)

On September 20, 2012, Defendant Nail filed a motion for summary judgment. (Def.'s Mot. Summ. J., ECF No. 37.) Plaintiff filed an opposition on October 18, 2012. (Pl.'s Opp'n, ECF No. 38.) Defendant Nail filed a reply on October 24, 2012. (Def.'s Reply, ECF No. 39.) Pursuant to Local Rule 230, Defendant Nail's motion is now ready for ruling.

The Court has considered all papers filed in support of and in opposition to the motion for summary judgment, and, for the reasons set forth below, will grant the motion be granted.


The competing alleged facts are as follows: Plaintiff alleges that on November 6, 2008, Plaintiff saw Defendant Nail physically assault another inmate. (Third Am. Compl., ECF No. 21, at 3.) Defendant Nail told Plaintiff that he would have Plaintiff shot if Plaintiff reported what he saw. (Id.) After this incident, Plaintiff wrote a letter to the "Director of Corrections" regarding the incident. (Id.)

Plaintiff and Defendant Nail have differing versions of events that occurred on December 9, 2008, the date of the incident at issue in Plaintiff's Third Amended Complaint.

According to Plaintiff, Defendant Nail had Plaintiff removed from his cell so he could be interviewed regarding his staff complaint. (Def.'s Mem. P. & A., ECF No. 37-1, at 2, Ex. B; Pl.'s Decl., ECF No. 38, at ¶ 2.) While he was away from his cell, Correctional Officer Garza and Defendant Nail searched Plaintiff's cell and found a weapon. (Pl.'s Decl. at ¶ 3; Def.'s Mem. P. & A. at 9.) Defendant Nail conducted the search and planted the weapon in Plaintiff's cell in response to Plaintiff's staff complaint against Defendant Nail. (Pl.'s Mem. P. & A., ECF No. 38, at 4.)

According to Defendants, on the day at issue, a prison dentist lost her staff identification card while treating inmates in certain cells making it necessary to search for the card. (Def.'s Mem. P. & A. at 2.) Correctional Lieutenant Akin asked Defendant Nail to search the cells of prisoners who had been treated by dentist. (Id.) Defendant Nail ordered Officers Garza and Cerda to search the cells, one of which was Plaintiff's. (Id.) Officer Garza found a weapon in Plaintiff's cell. (Id.) It was not planted by Defendant Nail. (Id.) Plaintiff was issued a Rules Violation Report charging him with possession of a weapon. (Id.) Plaintiff was ultimately found guilty of possession of a weapon and assessed a three hundred and sixty days loss of credit. (Id.) That finding of guilt has not been reversed. (Id.)


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).

As the moving party, Defendant bears the initial burden of proving the absence of a genuine dispute of material fact. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) (quotation marks omitted). Because Plaintiff bears the burden of proof at trial, Defendant needs only prove that there is an absence of evidence to support Plaintiff's case. In re Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 326) (quotation marks omitted). If Defendant meets his initial burden, the burden shifts to Plaintiff to designate specific facts demonstrating the existence of genuine issues for trial. Id. (citing Celotex, 477 U.S. at 324). However, Plaintiff need not file any countervailing declarations or other materials if Defendant's papers are insufficient on their face to demonstrate the lack of any material issue of fact. Kaiser Cement Corp. v. Fischbach and Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir. 1986); Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (quotation marks omitted).

In resolving Defendant's motion for summary judgment, all of the evidence must be viewed in the light most favorable to Plaintiff as the non-moving party, Garcia v. County of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011); Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011), and all reasonable inferences must be drawn in his favor, LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1136 (9th Cir. 2009); Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 763 (9th Cir. ...

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