United States District Court, E.D. California
CLARENCE A. GIPBSIN, Plaintiff,
DEFOREST, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
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. 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.
action proceeds on plaintiff’s amended complaint. ECF
No. 24. At this time, only his First Amendment retaliation
claim remains. 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.
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.
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.
Summary Judgment Standards
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.
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.
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.
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.
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.
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 ...