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Franklin v. United States

United States District Court, Ninth Circuit

August 21, 2013

EMERY I. FRANKLIN, Plaintiff,
v.
UNITED STATES, Defendant.

FINDINGS AND RECOMMENDATIONS (1) DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, (2) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION, (3) DENYING DEFENDANT'S COUNTER-MOTION FOR SANCTIONS, (4) DENYING PLAINTIFF'S MOTION TO STRIKE (ECF Nos. 53, 62, 63, 68) FOURTEEN (14) DAY OBJECTION DEADLINE

MICHAEL J. SENG, Magistrate Judge.

I. PROCEDURAL HISTORY

Plaintiff Emery I. Franklin is a federal prisoner proceeding pro se and in forma pauperis in this Federal Tort Claims Act ("FTCA") personal injury action arising from a motor vehicle accident. (ECF No. 1.) The action proceeds on Plaintiff's second amended complaint for negligence against the United States. (ECF No. 13.)

Plaintiff filed a motion for summary judgment/adjudication of liability. (ECF No. 53.) Defendant filed opposition and a counter-motion for sanctions (asserting Plaintiff misrepresented facts in his motion). (ECF No. 63.) Plaintiff filed a reply (ECF No. 65) and opposition to the counter-motion for sanctions. (ECF No. 66.) Defendant replied. (ECF No. 74.)

Defendant filed its own motion for summary judgment.[1] (ECF No. 62.) Plaintiff filed opposition (ECF No. 67) and moved to strike supporting declarations of Duncan and Ray as inadmissible. (ECF No. 68.) Defendant replied. (ECF No. 75.)

The motions are now deemed submitted. Local Rule 230( l ).

II. SUMMARY OF SECOND AMENDED COMPLAINT

On December 17, 2008, Plaintiff was returning to United States Penitentiary, Atwater ("Atwater") from an outside medical procedure. (ECF No. 12 at 4.) Plaintiff was a passenger in a Bureau of Prisons (BOP) van driven by Paul Lehman, an Atwater Correctional Officer. (Id.) The van collided head-on with another vehicle. (Id.)

Plaintiff claims Lehman was speeding and driving recklessly. (Id.) After the impact, Plaintiff was in pain and could not move. (Id.) Lehman lifted

Plaintiff and put him in the chase car. (Id. at II; ECF 70 at 99.) Plaintiff was transported back to prison and then by ambulance to the hospital. (Id.)

The collision caused blunt force trauma, injured Plaintiff's tailbone, and fractured a vertebrae. The injuries have limited Plaintiff's prison employment opportunities. (Id.)

Plaintiff filed a claim with the BOP, Western Region on January 2, 2009. His claim was denied on April 27, 2009. (Id.) On May 15, 2009, Plaintiff filed an appeal that was denied by BOP's counsel on October 29, 2009. (Id.; ECF 70 at 102.)

Plaintiff seeks monetary damages against the United States, the sole Defendant.

III. SUMMARY JUDGMENT STANDARD

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); 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). 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).

In resolving cross-motions for summary judgment, the Court must consider each party's evidence. Johnson v. Poway Unified School Dist. , 658 F.3d 954, 960 (9th Cir. 2011). Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for him. Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir. 2007). Defendant does not bear the burden of proof at trial and in moving for summary judgment, he need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Securities Litigation , 627 F.3d 376, 387 (9th Cir. 2010).

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n , 322 F.3d 1039, 1046 (9th Cir. 2002); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Long v. County of Los Angeles , 442 F.3d 1178, 1185 (9th Cir. 2006).

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). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which an inference may be drawn. ...


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