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Ram Nehara, Plaintiff v. State of California

February 11, 2013


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


The California Department of Corrections and Rehabilitation ("Defendant" or "CDCR") seeks summary judgment, or in the alternative summary adjudication, in this action for violations of Title VII. (Doc. 116). On January 11, 2013, Plaintiff Ram Nehara ("Plaintiff") filed his opposition to the motion (Doc. 118), to which Defendant filed a reply on January 18, 2013. (Doc. 123). For the following reasons, Defendant's motion for summary judgment is GRANTED IN PART.


Plaintiff initiated this action by filing his complaint on March 17, 2010. (Doc. 1). Plaintiff, a former nurse at North Kern State Prison ("NKSP"), alleged that his former employers retaliated against him for complaining about discriminatory overtime and shift assignments. Plaintiff alleged he was forced to manipulate an incident report and subjected to an internal affairs investigation and disciplinary hearing. Therefore, Plaintiff alleged the defendants were liable for retaliation, intentional infliction of emotional distress, disability discrimination, and defamation.

Plaintiff's complaint was dismissed with leave to amend on July 16, 2010 (Doc. 26), and he 2 filed a First Amended Complaint on August 2, 2010. (Doc. 43). Following motions to dismiss filed 3 by the defendants, the Court dismissed Plaintiff's First Amended Complaint for failure to state a claim 4 against NKSP on November 5, 2010. (Docs. 54, 56). Plaintiff filed a Second Amended Complaint on 5 November 18, 2010. (Doc. 67). Again, the defendants filed a motion to dismiss (Docs. 58-59). The 6 Court determined Plaintiff failed to exhaust his administrative remedies and dismissed the state law 7 tort claims against NKSP and individual defendants with prejudice on August 2, 2011. (Doc. 71). 8

On August 8, 2011, Plaintiff filed his Third Amended Complaint ("TAC") against NKSP, the CDCR, and the State of California alleging liability for (1) discrimination and (2) retaliation under Title VII. (Doc. 75). The defendants filed their answer on August 23, 2011. (Doc. 77).

The CDCR filed the motion for summary judgment now before the Court on December 21, 2012, with a statement of undisputed facts attached in support. (Doc. 116). On January 11, 2013, Plaintiff filed a statement of disputed facts with his opposition to the motion. (Docs. 118-21). On January 18, 2013, the Court found the parties failed to comply with the Court's scheduling order and Local Rule 260, and ordered the parties to meet and confer, and file a joint statement of undisputed facts. (Doc. 124).

On January 23, 2013, the CDCR filed a document entitled "Joint Statement of Undisputed Facts in Support of Defendant's Motion to Summary Judgment and/or Summary Adjudication." (Doc. 125). Thereafter, Plaintiff filed a separate statement, asserting it was necessary because he "made revisions to Defendant's Joint Statement, which were entirely rejected by Defendant when Defendant filed its own Proposed Joint Statement." (Doc. 126 at 2, n. 2). The Court held a telephonic conference with the parties on January 24, 2013, regarding the statements filed. (Doc. 129). As explained at the conference, the Court herein evaluates the motion for summary judgment using the facts as provided by Defendant and those additional facts set forth in Plaintiff's statement.


The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." 2

Fed. R. Civ. P. 56(a). Accordingly, summary judgment should be entered "after adequate time for 3 discovery and upon motion, against a party who fails to make a showing sufficient to establish the 4 existence of an element essential to that party's case, and on which that party will bear the burden of 5 proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 6

In addition, Rule 56 allows a court to grant summary adjudication, or partial summary 7 judgment, when there is no genuine issue of material fact as to a particular claim or portion of that 8 claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) 9

("Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim . . .") (internal quotation marks and citation omitted). The standards that apply on a motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

A party seeking summary judgment bears the "initial responsibility" of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). The moving party demonstrates summary adjudication is appropriate by "informing the district court of the basis of its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Fed. R. Civ. P. 56(c)).

If the moving party meets its initial burden, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); Matsuhita, 475 U.S. at 586. An opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 587. The party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a factual dispute exits. Id. at 586, n.11; Fed. R. Civ. P. 56(c). Further, the opposing party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that 2

"the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing 3 versions of the truth at trial." T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 4 626, 630 (9th Cir. 1987). However, "failure of proof concerning an essential element of the 5 nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322. 6

Even if a motion for summary adjudication is unopposed, a court cannot grant summary 7 adjudication solely because no opposition has been filed. Cristobal v. Siegel, 26 F.3d 1488, 1494-95 8 & n.4 (9th Cir. 1994). The Court must apply standards consistent with Rule 56 to determine whether 9 the moving party demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary judgment, the Court examines the evidence provided by the parties, including pleadings depositions, answer to interrogatories, and admissions on file. See Fed. R. Civ. P. 56(c).


Rule 602 provides that a witness may not testify unless "the witness has personal knowledge of the matter." Fed. R. Evid. 602. A lay witness may testify only as to those opinions or inferences which are "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed. R. Evid. 701.

Defendant objects to Plaintiff's declaration, asserting repeatedly that it "lacks foundation, personal knowledge, contains hearsay and improper opinion." See Doc. 125 at 19-33 (citing Fed. R. Evid. 602, 701, 702, 801, 802). Significantly, Plaintiff's declaration contains forty-one paragraphs in nine pages, and incorporates fifty pages of exhibits. (See Doc. 119). Defendant incorrectly assumes the Court will sift through the declaration and determine which objections Defendants might have intended to apply to which sentence(s). Defendant has waived its objections, because the general objections are unsupported by legal argument or explanation. Accordingly, objections to Plaintiff's declaration as a whole are OVERRULED.

Nevertheless, to the extent that statements offered by Plaintiff are speculative or represent a legal conclusion, the Court, as a matter of course, will not factor that material into the analysis. See Burch v. Burch v. Regents of the University of California, 433 F. Supp.2d 1110, 1119 (E.D. Cal. 2006) 2 ("[S]tatements in declarations based on speculation or improper legal conclusions, or argumentative 3 statements, are not facts and likewise will not be considered on a motion for summary judgment. 4

Objections on any of these grounds are simply superfluous in this context.") (citation omitted, 5 emphasis in original). 6


In support of the motion for summary judgment, Defendant filed a request for judicial notice in 8 support of its motion for summary judgment. (Doc. 116-3). Likewise, Plaintiff filed a request for 9 judicial notice in support of his opposition. (Doc. 122). The Court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993).

Defendant seeks judicial notice of (1) the Amended Notice of Adverse Action signed by Chief Medical Officer, Dr. Ashref Youssef, (2) an order of Kern County Superior Court dated January 28, 2011, in Case. No. S-1500-CV-271896, and (3) the decision of the State Personnel Board issued on July 8, 2011, in Case Nos. 09-1810 and 10-0659E. (Doc. 122). Judicial notice may be taken of court records, as they are sources whose accuracy cannot reasonably be questioned. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir. 1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980). In addition, Plaintiff does not deny the authenticity of the "Notice of Adverse Action." Therefore, Defendants' request for judicial notice is GRANTED.

Plaintiff requests judicial notice of (1) the declaration of Dr. JM Wang, (2) the declaration of Lorie DeSantiago, and (3) the Court's scheduling order in this case, issued November 8, 2011. (Doc. 122). Judicial notice may be taken of "undisputed matters of public record, including documents on file in federal or state courts." Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (internal citation omitted). However, judicial notice may not be taken of disputed facts within these documents. Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001). Accordingly, while the Court may take judicial notice of the fact that declarations were previously filed in support of Plaintiff's motion for a temporary restraining order; it cannot take judicial notice of the facts presented 2 therein. Therefore, Plaintiff's request for judicial notice is DENIED.*fn1


Plaintiff is a national of India, and was employed by Defendant as a nurse at NKSP beginning March 10, 2006. (UMF 1, 2). Plaintiff completed the probationary period for his employment in 6 September 2006, and "received a satisfactory overall rating" of his performance reports. (UMF 3). 7

On November 21, 2006, Plaintiff told Veda McMillion and Judy Pierce, two of his supervisors,

"he felt his safety was threatened . . . as custody officers would escort inmate-patients to [Treatment 9 and Triage], but would then leave the inmate-patients alone with him during treatment." (UMF 4). Plaintiff was informed "a different RN had raised the same issue to them" the prior week, and "they were 'working on it.'" Id. 8

On December 20, 2006, Plaintiff approached his supervisor, Reynaldo Diamaano, who is Filipino, to discuss "his unfair treatment with regards to overtime allotment." (UMF 5). Despite the conversation with Diamaano, the issue was never resolved. Id. However, overtime shifts at NKSP were "assigned based on terms set forth in plaintiff's union contract." (UMF 40).

An inmate attacked Plaintiff while he worked on December 22, 2006. (UMF 6). Officer Escarcega brought an inmate-patient to Plaintiff's station in Treatment and Triage. (Nehara Decl. ¶ 9). Officer Escarcega left Plaintiff alone with the inmate-patient, who then attacked Plaintiff. Id., ¶ 10. After Plaintiff screamed for help, Officer Escarcega and another custody officer came in and took the inmate off of Plaintiff. Id. Plaintiff was treated at Delano Regional Medical Center for his injuries.

Id.; (see also Doc. 125 at 20). He returned to work on December 23, 2006. (Austin Decl., Exh. B)

Plaintiff completed an incident report regarding the attack. (UMF 17). On December 25, 2006, custody officers Remos and Gibbons ordered Plaintiff to revise his report to omit the names of any officers. (Nehara Depo. at 116:4-7, 117:3-7). He complained to the Service Employees International Union and NKSP Warden Lydia Hense about both the attack and receiving an order from 2 custody staff regarding his incident report. (UMF 18, 53). On December 26, 2006, Michael 3 Cavenaugh, Director of Nursing at NKSP, told Plaintiff not to write any more reports. (UMF 23,54). 4

On December 27, 2006, Maurice Junious and Lieutenant Mark Saggs interviewed Plaintiff 5 regarding the attack and orders of Officers Gibbons and Remos. (UMF 55). Plaintiff did not know if 6 the attack and order were motivated by his national origin, or if he ever reported his belief that they 7 were. (UMF 19). The same day, Cavenaugh called Plaintiff into his office, and "demanded to know 8 why [Plaintiff] had 'dared' to bring his complaints to the warden." (UMF 56). 9

In January 2007, Plaintiff's treatment provider recommended he take medical leave for three weeks because of the inmate attack. (UMF 21). Cavenaugh denied the request for medical leave. (Nehara Decl. ¶ 19). Later in January, Plaintiff met with Karen Rae, the Regional Director, regarding the attack and orders of the custody officers. (UMF 58). Although Cavenaugh was present, he was excluded from the meeting at Plaintiff's request. Id.

On March 29, 2007, Cavenaugh "informed plaintiff that he was restricted from patient care due to a pending investigation of reports that he failed to perform required 30 minute checks on inmate/ patients who had been placed on suicide watch and falsified the inmate/patient medical records." (UMF 23). Plaintiff "denied the allegations that he had slept during his shift" at a meeting with Cavenaugh; Warden Hense; and Jeff Kirby, the ...

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