United States District Court, E.D. California
LEON E. MORRIS, Plaintiff,
C. M. GREEN., Defendant.
ORDER & FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed this civil
rights action seeking relief under 42 U.S.C. § 1983.
This action proceeds against defendant Green on the complaint
filed March 26, 2013. (ECF No. 1 (“Compl.”);
see ECF No. 20.) On December 9, 2015, defendant was
granted summary judgment on all but one claim due to
plaintiff’s failure to exhaust administrative remedies.
(ECF No. 68.) In the remaining claim, plaintiff alleges that
defendant retaliated against him by not sending his legal
mail in December 2011. (Id.)
the court are the parties’ cross-motions for summary
judgment. (ECF Nos. 54 & 74; see ECF No. 76.)
After careful consideration of the arguments and the record,
the undersigned will recommend that defendant’s motion
for summary judgment be granted.
Summary Judgment Standards Under Rule 56
judgment is appropriate when it is demonstrated 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). A party asserting that a fact cannot be
disputed must support the assertion by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials. . .”
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. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “[A] complete
failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other
facts immaterial.” Id.
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. See
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 allegations or denials of their 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 or show
that the materials cited by the movant do not establish the
absence of a genuine dispute. See 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 under the governing law, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); 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, see Wool
v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.
endeavor to establish the existence of a factual dispute, the
opposing party need not 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 Fed.R.Civ.P. 56(e) advisory committee’s note
on 1963 amendments).
resolving the summary judgment motion, the evidence of the
opposing party is to be believed. See Anderson, 477
U.S. at 255. All reasonable inferences that may be drawn from
the facts placed before the court must be drawn in favor of
the opposing party. See Matsushita, 475 U.S. at 587.
Nevertheless, inferences are not drawn out of the air, and it
is the opposing party’s obligation to produce a factual
predicate from which the inference may be drawn. See
Richards v. Nielsen Freight Lines, 602 F.Supp. 1224,
1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898,
902 (9th Cir. 1987). Finally, to demonstrate a genuine issue,
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 587 (citation omitted).
verified complaint, plaintiff alleges as follows:
Green was a prison guard at California State
Prison-Sacramento. (Compl. at 3.) Beginning in November 2010,
defendant and others “retaliated against me for filing
602 staff complaints and writing the warden about the various
wrongs they subjected me to.” (Id. at 4.)
In November 2010, . . . guard C.M. Green came to the cage I
was kept in and started shouting [at] me, ranting and cussing
me up one side and down the other about a 602 staff complaint
I’d filed against him. Telling me I’d be sorry
and regret; saying he don’t appreciate it. Immediately
thereafter, him and his ...