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Paul Eric Hebbe v. Cheryl Pliler

April 30, 2013

PAUL ERIC HEBBE, PLAINTIFF,
v.
CHERYL PLILER, ET AL., DEFENDANTS.



ORDER

The case was before the undersigned on January 9, 2013, for hearing on defendants' motion for summary judgment.*fn1 Dckt. No. 204. Attorney Robert D. Hunt appeared at the hearing on behalf of plaintiff; attorney Michael Gregory Lee appeared on behalf of defendants. As stated on the record, and for the reasons provided below, defendants' motion is denied.

I. Background

The initial complaint in this action was filed on February 14, 2000 and was amended on July 17, 2000. Dckt. Nos. 1, 8. Plaintiff alleged, in relevant part, that defendants Pliler and Vance, employees at California State Prison, Sacramento ("CSP-Sac"), had (1) denied him outdoor exercise, (2) denied him access to the courts, and (3) forced him to choose between library time and yard time. The previously assigned magistrate judge found that plaintiff had stated a cognizable claim based on the denial of outdoor exercise and recommended that the other two claims be dismissed. Dckt. No. 27. That recommendation was adopted by the then assigned district judge and the claims of denial of access to the courts and being forced to choose between exercise or law library access were dismissed. Dckt. No. 31. On September 25, 2007, the denial of exercise claim proceeded to a jury trial before the undersigned and the jury returned a verdict for defendants. Dckt. Nos. 142-145. Judgment was entered. Dckt. No. 151.

Plaintiff subsequently appealed the dismissal of the access to courts claim and the choosing between yard time and library time claim. Dckt. No. 155. On August 2, 2010, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded, finding that both of these claims were cognizable. Dckt. No. 161, 166 (Nov. 19, 2010 amended opinion).

This action now proceeds on the Second Amended Complaint, in which plaintiff again asserts claims that defendants Vance and Pliler denied him access to the courts, and forced him to choose between library time and yard time. Dckt. No. 179. Before the court is defendants' October 31, 2012 motion for summary judgment. Dckt. No. 204. Plaintiff opposed the motion, Dckt. No. 208, and defendants filed a reply. Dckt. No. 211. Defendants contend that there is no genuine dispute of material fact and that they are entitled to qualified immunity. As discussed below, genuine issues of material fact preclude summary judgment.

II. Plaintiff's Motion to Strike

In addition to opposing defendants' summary judgment motion, plaintiff moves to strike (Dckt. No. 208-40) the declaration of D. Hamad (Dckt. No. 204-2), which defendants filed in support of their motion.*fn2 In the Hamad declaration, Hamad states that she has supervised the law library at CSP-Sac since 2000, and describes the prison's preferred legal user ("PLU") status policy as it existed between 1998 and 2000. Plaintiff moves to strike the declaration because: (1) Hamad was never identified as a person likely to have discoverable information as required by Federal Rule of Civil Procedure 26(a)(1); (2) Hamad lacks personal knowledge of the relevant facts; and (3) certain statements made therein are irrelevant.

Although defendants submitted a reply brief, they have failed to respond to plaintiff's motion to strike. At the hearing, defense counsel essentially conceded that Hamad was not identified in defendants' initial disclosures. Defense counsel argued that defendants could not have anticipated the need to produce any PLU policy-related information at the time of initial disclosures, which were made on February 13, 2012. See Dckt. No. 208-38. Evidence of the PLU policy plainly relates to plaintiff's claims, both of which concern plaintiff's ability to access the prison law library. See Dckt. No. 184-1 at 9 ("Introduction" section of Defendants' August 22, 2011 Motion for Judgment on the Pleadings, summarizing plaintiff's claims). It is difficult to understand why in February of 2012, defendants could not have anticipated the need to produce PLU policy-related information and defendants have not provided any persuasive explanation as to why that would be the case. As for plaintiff's personal knowledge objection to the Hamad declaration, defense counsel represented at the hearing that Hamad has personal knowledge of the PLU policy described in her declaration because she was a prison employee as of 1998 and was responsible for enforcing the PLU policy. The Hamad declaration itself, however, does not state that Hamad was a CSP-Sac employee prior to 2000 or otherwise lay a foundation for her knowledge of a prison policy that existed prior to 2000.

For these reasons, plaintiff's objections to the Hamad declaration are well-taken.

Ultimately, however, Hamad's assertions regarding the intricacies of the PLU policy do not preclude summary judgment, as set forth below. Plaintiff's motion to strike the Hamad declaration is therefore denied as unnecessary.

III. Summary Judgment Standards

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 ...


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