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Ellis v. Abdur-Rahman

United States District Court, E.D. California

March 30, 2017

ROBERT J. ELLIS, Plaintiff,
v.
ABDUR-RAHMAN, Defendant.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action under 42 U.S.C. § 1983 alleging defendant Salahuddin Abdur-Rahman, M.D. was deliberately indifferent to his serious medical needs by not recommending plaintiff for hemorrhoid surgery after interviewing plaintiff regarding his inmate appeal. (ECF No. 1 at 3.) Before the court is defendant's motion for summary judgment. (ECF No. 21.) For the reasons outlined below, the undersigned respectfully recommends that defendant's motion be granted and that judgment be entered in favor of defendant.

         I. Background

         A. Procedural

         Plaintiff is currently proceeding on his original complaint against defendant. (ECF No. 1.) Defendant filed a motion for summary judgment. (ECF No. 21.) Plaintiff did not file a timely response to the summary judgment motion. Magistrate Judge Allison Claire, the magistrate judge previously assigned to this case, ordered plaintiff to respond within 21 days of her order or she would recommend dismissal pursuant to Federal Rule of Civil Procedure 41(b). (ECF No. 23.) Plaintiff did not timely respond to Judge Claire's order and so she issued a findings and recommendations recommending that this action be dismissed without prejudice pursuant to Rule 41(b). (ECF No. 24.)

         After Judge Claire's recommendations, plaintiff filed a motion for extension of time (ECF No. 25) to file an opposition to the summary judgment motion, which Judge Claire granted (ECF No. 26). Plaintiff then filed an opposition to the summary judgment motion. (ECF No. 27.) Defendant filed a reply memorandum in support of his motion. (ECF No. 28.) The summary judgment motion is now ripe for review.

         B. Factual

         The below statement of facts is derived from defendant's statement of undisputed facts and supporting affidavits, declarations, exhibits, and deposition transcripts. (ECF Nos. 21-1; 21-2; 21-3.) Additionally, the court recognizes plaintiff's complaint as a “verified complaint” and draws upon it as well to establish the undisputed facts. (ECF No. 1.)

         1. Defendant's Objections

         As a preliminary matter, defendant objects to plaintiff's opposition as a whole because it does not comply with Federal Rule of Civil Procedure 56(c) and Local Rule 260(b). (ECF No. 28 at 3-4.) Specifically, plaintiff failed to reproduce defendants' statement of undisputed facts and failed to admit or deny those facts pursuant to Local Rule 260(b). (See ECF No. 27.) Plaintiff also failed to include citations to the “particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon” to establish his facts. E.D. Cal. L.R. 260(b). Furthermore, plaintiff submitted no evidence with his opposition; instead, the opposition merely restates plaintiff's allegations from the complaint and his claim for relief. (ECF No. 27.)

         “A district court does not have a duty to search for evidence that would create a factual dispute.” Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007). At the same time, the Ninth Circuit has held that courts should liberally construe motion papers filed by a pro se litigant.

Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

         Here, some evidence is readily available on the record, even if not cited to by plaintiff. Specifically, plaintiff's complaint is a “verified complaint” under 28 U.S.C. § 1746 and, to the extent it alleges specific facts from plaintiff's personal knowledge, it carries the same weight as an affidavit proffered to oppose summary judgment. See Keenan v. Hall, 83 F.3d 1083, 1090 n. 1 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998). See also Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (accepting the verified complaint as an opposing affidavit because the plaintiff “demonstrated his personal knowledge by citing two specific instances where correctional staff members . . . made statements from which a jury could reasonably infer a retaliatory motive”); McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987); see also El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (Court reversed the district court's grant of summary judgment because it “fail[ed] to account for the fact that El Bey signed his complaint under penalty of perjury pursuant to 28 U.S.C. § 1746. His verified complaint therefore carries the same weight as would an affidavit for the purposes of summary judgment.”). In plaintiff's complaint, his signature follows the statement, “I declare under penalty of perjury that the foregoing is true and correct.” (ECF No. 1 at 3.) It therefore qualifies as a verified complaint.

         Concerning plaintiff's opposition, it is true that it merely restates the claims and allegations without addressing defendant's legal arguments or statement of facts. (See ECF No. 27.) While the opposition is clearly deficient, defendant will not be prejudiced by the court taking it into consideration as general legal rhetoric concerning plaintiff's claims. Therefore, in construing the pro se plaintiff's filing liberally, see Thomas, 611 F.3d at 1150, the court will consider plaintiff's opposition. However, the court will not consider the opposition itself to be “verified” -- i.e., it will not be considered for evidentiary value.

         As noted above, the court will recognize the complaint as being a “verified complaint, ” which constitutes evidence as long as the allegations arise from personal knowledge and contain specific facts admissible into evidence. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (accepting the verified complaint as an opposing affidavit because the plaintiff “demonstrated his personal knowledge by citing two specific instances where correctional staff members . . . made statements from which a jury could reasonably infer a retaliatory motive”). Plaintiff did not sign the opposition to the summary judgment motion or declare under penalty of perjury that the contents of the opposition were true and correct; therefore, the opposition does not comply with 28 U.S.C. § 1746 and the court cannot accept that document as being verified. (ECF No. 27.)

         So, in summation, the court will consider the verified complaint as evidence, but will consider the opposition only for its rhetorical ...


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