FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The remaining defendants in this case, i.e, Adams, Akin, Baughman, Colvin, Gold, McCargar, Micheels, Rendon, Scarsella, and Yamamoto move for summary judgment under Fed. R. Civ. P. 56. Dckt. No. 213. Defendants also ask the court to find that plaintiff is a vexatious litigant and require that he post security. Dckt. No. 217.*fn1
For the reasons that follow, the motion for summary judgment must be granted in part and denied in part. The undersigned further recommends that the court deny defendants' motion to declare plaintiff a vexatious litigant.
This action proceeds on the third amended complaint filed November 30,
2006. Dckt. No. 122. Plaintiff alleges that, between 1997 and 2000,
defendants retaliated against him for filing grievances and lawsuits
by instituting false disciplinary charges against him.*fn2
He seeks declaratory, injunctive, and monetary relief. Dckt.
No. 122 at 20-22. Defendants provide the following relevant factual
background, which is not disputed by plaintiff:
From July 21, 1994 to October 26, 2004, plaintiff resided at California State Prison -Sacramento ("CSP-Sac"). Defs.' Sep. Statement of Undisputed Material Facts ISO Defs.' Mot. for Summ. J. (hereinafter "DUF") 1. On September 27, 1997, defendant McCargar, senior librarian at CSP-Sac, filed a "Rules Violation Report" ("RVR") against plaintiff for disrespect (RVR #97-02-10). DUF 2. Defendant Baughman, defendant McCargar's supervisor, reviewed and signed off on the RVR. DUF 3. Defendant Micheels conducted a hearing on the RVR and found plaintiff guilty of disrespect. DUF 4. Plaintiff was counseled and reprimanded. Id.
On February 24, 1998, defendant Colvin, a correctional officer at CSP-Sac, filed RVR #98-02-84 against plaintiff for manipulating and threatening staff. DUF 5. Defendant Scarsella, defendant Colvin's supervisor, reviewed and signed off on the RVR. DUF 6. Defendant Rendon conducted a hearing on the RVR and found plaintiff guilty of manipulating and threatening staff. DUF 7. Plaintiff was assessed a thirty-day loss of good-time credits. Id.
On March 3, 1998, defendant Colvin filed RVR #98-03-50 against plaintiff for unlawful influence. DUF 8. Defendant Yamamoto, defendant Colvin's supervisor, reviewed and signed off on the RVR. DUF 9. Defendant Akin conducted a hearing on the RVR and found plaintiff guilty of not promptly obeying orders. DUF 10. Plaintiff was counseled and reprimanded. Id.
On August 18, 2000, defendant Adams, a correctional officer at CSP-Sac, filed RVR #00-08-059 against plaintiff for not following directions. DUF 11. Defendant Gold conducted the hearing for the RVR and found plaintiff guilty of not following orders. DUF 12. Plaintiff was assessed a loss of yard privileges for one weekend. Id.
II. Motion for Summary Judgment
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." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.
The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 (1986). ("[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.'"). 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. In such a circumstance, summary judgment must be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the ...