United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. Currently pending are: (1)
defendants’ response to the court’s December 3,
2015 order to show cause (ECF No. 194); (2) defendants’
motion for summary judgment (ECF No. 193); and (3) various
motions and objections filed by plaintiff in response to the
motion for summary judgment (ECF Nos. 197, 199, 204-206). For
the following reasons, the court will impose sanctions on
defense counsel for failing to adhere to the schedule without
good cause, deny plaintiff’s motions, and grant the
motion for summary judgment in part and deny it in part.
Defendants’ Response to the Order to Show
filed this action in Santa Clara County Superior Court on
January 5, 2010. ECF No. 1-1. Defendants removed the case to
federal court. ECF No. 1. The case progressed through
discovery, and defendants allowed the dispositive motion
filing deadline (April 22, 2011) to pass without filing a
motion to dismiss or a motion for summary judgment. ECF No.
19. In May 2013, after reviewing the pretrial statements
filed by the parties, the court discovered that two named
defendants - Weiglein and Roszko - had not responded to the
complaint. See ECF No. 101. Plaintiff informed the
court that he was pursuing his claims against Weiglein in a
separate action and the court accordingly dismissed Weiglein
from this action. ECF No. 106. After a long process that need
not be recounted here (see Id. at 2), defendant
Roszko was properly served with the complaint. ECF No. 135.
The court then issued a revised schedule governing discovery
and dispositive motions “so that plaintiff and
defendant Roszko may engage in discovery and pretrial motions
with respect to plaintiff’s claims against defendant
Roszko.” ECF No. 145 at 1.
December 30, 2014, defendants filed a motion for summary
judgment addressing all of plaintiff’s claims against
all defendants. ECF No. 159. Defendants did not seek relief
from the schedule that governed all of them except Roszko,
under which the dispositive motion filing deadline had
passed. ECF No. 19 (providing a dispositive motion deadline
of April 22, 2011). Defendants argued that that they filed a
motion addressing all claims against all defendants because
they “were unable to determine which claims or causes
of actions were directed to which defendant.” ECF No.
161. The court found this representation disingenuous.
Because defendants Blackwell, Broyles, Lopez, Voight, and
Zuniga did not show good cause why they did not seek summary
judgment on or before April 22, 2011, the court declined to
consider their arguments. ECF No. 176 at 2-3 (citing
Fed.R.Civ.P. 16(b)(4) (“A schedule may be modified only
for good cause and with the judge’s consent.”)
and Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 608 (9th Cir. 1992) (holding that a motion to modify the
schedule must be supported by a showing of good cause; i.e.,
that the schedule could not have been met despite the moving
party’s diligence)). The court noted that, if these
defendants wished to seek summary judgment on
plaintiff’s claims against them, they were required to
file a motion for modification of the schedule, supported by
a showing of good cause. Id.
filed such a motion. ECF No. 179. The court concluded that
the non-Roszko defendants had not shown good cause for their
failure to comply with the April 22, 2011 dispositive motion
deadline. ECF No. 190. Nevertheless, the court allowed these
defendants to file a motion for summary judgment outside that
deadline because the court cannot waste resources trying
claims that may be resolved on summary judgment. Id.
The court ordered defense counsel to show cause why they
should not be sanctioned for violating the scheduling order.
Id. The court has received counsel’s response.
ECF No. 194.
Rule of Civil Procedure 16(f) provides that the court may, on
its own motion, issue “any just order, ”
including sanctions, where a party “fails to obey a
scheduling order.” In the response to the order to show
cause, defense counsel states that they allowed the April 22,
2011 deadline to pass in a “good faith-although
obviously mistaken-assumption about how to best proceed in an
effort to save the Court’s time and resources.”
ECF No. 194 at 1. According to counsel, they knew that
defendant Roszko might eventually be served and were waiting
until that time to file a summary judgment motion addressing
plaintiff’s claims against all defendants. Id.
court has reviewed the docket in this action and finds
defense counsel’s proffered reason for allowing the
dispositive motion deadline to pass difficult to believe. To
credit counsel’s story, the court would have to believe
that counsel was willing to forego filing a potentially
successful summary judgment motion on behalf of five
defendants because there was a chance that a sixth defendant
(who had not been served and was not participating in the
case) would later be given an opportunity to file such a
motion. If defense counsel had truly wanted to save the
court’s time by filing a single motion for all
defendants, counsel could have alerted the court to the fact
that plaintiff’s attempt to serve Roszko prior to
removal had been unsuccessful and resolved the question of
whether he would be added to the case before the April 22,
2011 deadline passed (by, for example, filing a motion to
dismiss Roszko under Federal Rule of Civil Procedure 4(m)).
It appears that, instead, counsel hoped that plaintiff and
the court would not notice Roszko’s sudden
disappearance from the case and that the case would conclude
without his further participation. Once that was no longer
possible, counsel tried to piggyback a
now-extraordinarily-late motion for summary judgment for the
five pre-existing defendants onto defendant Roszko’s
counsel’s conduct placed the court in the untenable
position of either dispensing with Rule 16’s good cause
standard or holding a possibly needless trial. The
court’s docket is far too impacted to allow a case to
proceed to a jury trial when it could have been resolved by
summary judgment. But the court must ensure that parties
adhere to schedules or provide good cause when they depart
from them. Accordingly, the court will impose monetary
sanctions of $500 jointly and severally on current defense
counsel Jeffrey E. Beeson, Michael A. Terhorst, and Beeson
Plaintiff’s Motions and Objections to the Motion for
has filed a number of objections to defendants’ motion
for summary judgment and requests that the court deny the
motion for technical reasons. ECF Nos. 197, 199, 204-206.
Plaintiff contends that defendants violated the court’s
order that their motion be filed within 30 days of December
3, 2015. ECF Nos. 197, 199, 204, 206. The docket in this
action shows that defendants filed the notice to plaintiff
informing him of his obligations in responding to the motion,
the points and authorities in support of the motion, the
exhibits, and the statement of undisputed facts on December
28, 2015, within the 30-day deadline. ECF No. 193. Defendants
served these same documents by mail the same day. However,
the 3-paragraph notice of motion was not filed until January
8, 2016, for reasons defendants have not explained. ECF No.
filed the substantive portions of their summary judgment
motion within the 30-day time limit set by the court. While
the notice of motion was filed four days outside the 30-day
window, plaintiff has not shown that the tardy notice caused
him any prejudice. Accordingly, plaintiff’s request
that the court deny the motion for summary judgment due to
untimeliness is denied.
argues that defendants were late in responding to the
court’s order to show cause. ECF No. 197. The docket
shows that defendants timely filed their response on December
28, 2015. ECF No. 193.
also objects that defendants have not been consistent in
including defendant Roszko’s name in various places in
the motion for summary judgment. ECF No. 199. Plaintiff is
aware that defendant Roszko has already been granted summary
judgment. ECF No. 176. Defendants’ lack of care in
listing the defendants who now seek summary judgment is not a
basis for denying the motion.
further requests that the court deny the motion because
defendants have not filed a reply brief. ECF No. 205. While
reply briefs are almost always helpful, and when submitted
must be filed timely, defendants were not obligated to file a
reply brief. E.D. Cal. L.R. 230(d) (the moving party
“may” file a reply, but is not required to).
plaintiff “requests to settle this case.” ECF No.
205 at 2. One of plaintiff’s claims survives summary
judgment (see below). Accordingly, the court will refer the
case to a randomly-assigned magistrate judge for a settlement
Defendants’ Motion for Summary Judgment
General Summary Judgment Principles
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.
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. Am. Int'l Group, Inc.
v. Am. 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 the 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.
193-2; see Woods v. Carey, 684 F.3d 934 (9th Cir.
2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.
1998) (en banc), cert. denied, 527 U.S. 1035 (1999);
Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.
The Parties’ ...