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Cheek v. Cosby

United States District Court, Eastern District of California

December 10, 2014

EZRA COSBY, et al., Defendants.




At Docket 33 Defendants P. Bisacca and E. Cosby filed a Motion for Summary Judgment. Although provided with a Rand warning, [1] Plaintiff has failed to timely oppose the motion or to request additional time within which to oppose the motion.

Also pending before the Court are Plaintiff’s Pretrial Motions at Docket 30 and Defendants’ Motion in Limine at Docket 34. Neither of which have been timely opposed.

Therefore, the pending motions are submitted for decision on the moving papers without oral argument.[2]


Plaintiff Michael Cheek, a civil committee held in the Coalinga State Hospital appearing pro se, brought this civil rights action under 42 U.S.C. § 1983 against various officials and employees of the California Department of State Hospitals. After screening the First Amended Complaint, the Court permitted Cheek to proceed on his Fourth Amendment unreasonable search and seizure claim as against Officer Ezra Cosby and OSI Investigator P. Bisacca; all other claims and defendants were dismissed.[3]

In his Amended Complaint Cheek contended that Defendants Cosby and Bisacca orchestrated, ordered, or participated in an unlawful and unwarranted digital rectal cavity search without probable cause. In their motion Defendants Cosby and Bisacca contend (1) the search was conducted in accordance with the execution of a judicially authorized search warrant; and (2) in any event, they were entitled to qualified immunity in executing the search warrant.

The sole issue before this Court is whether or not the digital rectal cavity search violated Cheek’s constitutional Fourth Amendment right to be free from unreasonable searches and seizures.


Summary judgment is appropriate if, when viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment in its favor as a matter of law.[4] Support and opposition to a motion for summary judgment is made by affidavit made on personal knowledge of the affiant, depositions, answers to interrogatories, setting forth such facts as may be admissible in evidence.[5] In response to a properly supported motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue for trial.[6] The issue of material fact required to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial. In order to show that a genuine issue of material fact exists a nonmoving plaintiff must introduce probative evidence that establishes the elements of the complaint.[7]Material facts are those which may affect the outcome of the case.[8] A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.[9] "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment."[10] The evidence of the non-moving party is to be believed and all justifiable inferences are drawn in his favor.[11] The moving party has the burden of showing there is no genuine issue of material fact; therefore, he bears the burden of both production and persuasion.[12] The moving party, however, has no burden to negate or disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only point out to the Court that there is an absence of evidence to support the non-moving party's case.[13] There is no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion.[14]

In general, in ruling on a motion for summary judgment, a court may not weigh the evidence or judge the credibility of witnesses.[15] Instead, it generally accepts as true statements made under oath.[16] However, this rule does not apply to conclusory statements unsupported by underlying facts, [17] nor may the court draw unreasonable inferences from the evidence.[18]

Although no opposition to the motion has been filed, the court may not automatically grant summary judgment. In that case, as here, the court must determine from the moving papers that the moving party has demonstrated the lack of a triable issue of fact and that judgment ...

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