Gipbsin v. Deforest

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants DeForest, Goni, Prater, Shelton, and Stone (hereafter “defendants”) have filed a motion for summary judgment.^[1] ECF No. 278. Additionally, plaintiff has filed what he styles as a motion for permanent injunction. For the reasons addressed below, defendants motion must be granted and plaintiff’s motion denied.

         I. Background

         This action proceeds on plaintiff’s amended complaint. ECF No. 24. At this time, only his First Amendment retaliation claim remains.^[2] Defendants were granted summary judgment in part in 2011, and plaintiff’s First Amendment retaliation claims were dismissed. ECF No. 195. In reaching that decision, the court weighed only whether plaintiff was retaliated against for filing a civil lawsuit related to his religious diet. The court also found that plaintiff had failed to present sufficient evidence that defendants knew about that lawsuit at the time they allegedly retaliated against him. ECF No. 188 at 6-7. That ruling was reversed. The U.S. Court of Appeals for the Ninth Circuit determined that the scope of plaintiff’s retaliation claim included not only alleged retaliation for filing a civil lawsuit related to his religious diet, but also alleged retaliation for requesting a religious dietary meal. ECF No. 259 at 3. Additionally, the Ninth Circuit found that plaintiff had, by way of his deposition testimony, produced some evidence that defendants were aware of his lawsuit at the time they allegedly retaliated against him. Id. Accordingly, the retaliation claim was remanded for further proceedings. Id. at 4.

         With respect to the retaliation claim, plaintiff alleges the following: On August 12, 2005, correctional officers served plaintiff a food tray which contained meat - a violation of plaintiff’s meal “chrono” which specified that his religious beliefs entitled him to vegetarian meals. ECF No. 24 at 6. Plaintiff held onto the food tray slot of his cell, refused to allow it to close, and demanded to speak to a sergeant about his meal. Id. He was escorted to an office at the unit where defendants told him that they did not care about his religious rights and declined to address the shortcomings of his meal. Id. Plaintiff then stood up to return to his cell, but defendants barred his way and began striking him. Id. In his deposition following the remand, plaintiff claimed that this use of force was retaliation for: (1) filing prison grievances, (2) filing a civil lawsuit, (3) asking for the appropriate religious meal, (4) asserting his constitutional rights, (5) seeking to enforce his dietary “chrono”, and (6) requesting to speak to a superior officer on August 12, 2005. ECF No. 278-2 ¶ 20.

         Defendants deny that the meal served was a violation of plaintiff’s “chrono”, that they verbally asserted any intention to disregard plaintiff’s rights, or that force was used to retaliate against plaintiff for any protected activity. ECF No. 144. They argue that plaintiff was the aggressor on August 12, 2005 and that force was necessary to restrain him. ECF No. 278-1 at 3.

         II. Legal Standards

         A. 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 nonmovant. 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 Corp. 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. 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 (“[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 case, and on which that party will bear the burden of proof at trial. See Id. at 322. In such a circumstance, summary judgment must be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323.

         To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322.

         Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. The court does not determine witness credibility. It believes the opposing party’s evidence, and draws inferences most favorably for the opposing party. See Id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air, ” and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand, 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). In that case, the court must grant summary judgment.

         Concurrent with their motion for summary judgment, defendants advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 278 at 2, 69; see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cer ...