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Kitchens v. Tordsen

United States District Court, E.D. California

April 13, 2015

LANARD KITCHENS, Plaintiff,
v.
TORDSEN, et al., Defendants.

FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 77)

MICHAEL J. SENG, Magistrate Judge.

I. PROCEDURAL HISTORY

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. ยง 1983. (ECF Nos. 1, 10.) This matter proceeds against Defendant Tordsen on Plaintiff's First Amendment retaliation claim, and against Defendants Tordsen, Coker, Leach and Day on Plaintiff's Fourteenth Amendment claim for subjecting Plaintiff to conditions of confinement that amounted to punishment. (ECF No. 28.) All defendants were served and have appeared in the action (ECF Nos. 44, 47 & 54.)

On February 13, 2015, Defendant moved for summary judgment on the grounds that Plaintiff failed to exhaust his administrative remedies. (ECF No. 77.) Plaintiff filed an opposition (ECF No. 79), and Defendants filed a reply (ECF No. 81). Plaintiff filed a response to Defendants reply on March 23, 2015. (ECF No. 82.)

Plaintiff's "Response to Defendants' Reply" (ECF No. 82) was not authorized. Local Rule 230 (l) permits only the filing of a response by the party opposing a motion and a reply by the moving party. However, inasmuch as Defendants have not objected to Plaintiff's reply motion and Plaintiff is a pro se litigant, the Court will consider Plaintiff's surreply.

II. LEGAL STANDARD - MOTION FOR SUMMARY JUDGMENT

Any party may move for summary judgment, and "[t]he [C]ourt 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). 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 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed R. Civ. P. 56(c)(1).

"Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the burden of proof at trial rests with the nonmoving party, then the moving party need only point to "an absence of evidence to support the nonmoving party's case." Id. Once the moving party has met its burden, the nonmoving party must point to "specific facts showing that there is a genuine issue for trial." Id . (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).

In evaluating the evidence, "the [C]ourt does not make credibility determinations or weigh conflicting evidence, " and "it draws all inferences in the light most favorable to the nonmoving party." Id.

III. FACTUAL SUMMARY

The court finds the following facts to be undisputed:

Following the discovery of contraband in Plaintiff's cell, Plaintiff was removed from the cell and handcuffed for six hours while that alleged infraction was being investigated. Plaintiff, uncomfortable from being handcuffed for so long, requested a grievance form from Defendant Tordsen. Tordsen denied his request and moved Plaintiff to a cell that had recently been occupied by an incontinent inmate and had yet to be cleaned.[1] Plaintiff thought he was being placed in the dirty cell in retaliation for his earlier request for a grievance form, and again requested a grievance form from Tordsen. Tordsen again failed to provide one.

Plaintiff threatened suicide in order to be removed from the dirty cell; and Defendants Day, Coker, and Leach came to Plaintiff's cell in response. Plaintiff complained about the dirty cell and requested a grievance form. Defendants did not provide one. Plaintiff was put on suicide watch overnight, but in the morning was returned to the still dirty cell. Plaintiff did not make ...


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