The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER STRIKING PLAINTIFF'S SURREPLY (ECF No. 59) FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BE DENIED AND DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED (ECF Nos. 39, 49) OBJECTIONS DUE WITHIN FOURTEEN DAYS
Plaintiff Anthony Shorter ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's Third Amended Complaint, filed April 29, 2011 against Defendants R. Rosenthal, G. Doan, and S. Wortman for denial of access to the courts. On September 17, 2012, Plaintiff filed a Motion for Summary Judgment. ECF No. 39. Defendants filed their opposition on January 11, 2013. ECF Nos. 4, 6, 47, 48. The motion is submitted pursuant to Local Rule 230(l).
On January 11, 2013, Defendants filed a Motion for Summary Judgment. ECF No. 49.
Plaintiff filed his opposition on March 14, 2013. *fn1 ECF No. 56. On March 21, 2013, Defendants filed their reply. ECF No. 58. The matter is submitted pursuant to Local Rule 230(l).*fn2
II. Summary Judgment Standard
Summary judgment is appropriate when it is demonstrated that there exists no genuine 4 dispute as to any material fact, and that the moving party is entitled to judgment as a matter of law. 5 Fed. R. Civ. P. 56(a); Washington Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). 6
Under summary judgment practice, the moving party 7 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 8 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). "[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. at 324. 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. 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, summary judgment should 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.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine dispute as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit 2 under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Thrifty Oil Co. 3 v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2002); T.W. Elec. Serv., Inc. 4 v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 5 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 6 party, Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Wool v. Tandem 7
Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 8
In the endeavor to establish the existence of a factual dispute, the opposing party need not 9 establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, 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.'" Matsushita, 475 U.S. at 587 (quoting former Rule 56(e) advisory committee's note on 1963 amendments).
In resolving a motion for summary judgment, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Finally, to demonstrate a genuine dispute, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . .Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586-87 (citations omitted).
III. Plaintiff's Motion for Summary Judgment
Pursuant to Local Rule 260(a), "Each motion for summary judgment or summary adjudication shall be accompanied by a 'Statement of Undisputed Facts' that shall enumerate discretely each of the specific material facts relied upon in support of the motion and cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other 2 document relied upon to establish that fact." Plaintiff's Motion for Summary Judgment fails to 3 comply with the requirements for the filing of a summary judgment motion. Plaintiff's motion has 4 no statement of undisputed facts, and fails to cite to any exhibits or documents in support of his 5 motion. Mere inclusion of exhibits with his motion is insufficient. Accordingly, Plaintiff's motion 6 should be denied.*fn3
IV. Defendants' Motion for Summary Judgment
A. Statement of Facts*fn4
From March 24, 2007, to February 19, 2010, Plaintiff was housed at Corcoran State Prison (CSP-Cor). Ex. A to App., Pl's Dep. 21:12-15, Aug. 9, 2012. At the time of the alleged incident Defendant Rosenthal was the librarian on ...