United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
PLAINTIFF'S MOTION THAT DEFENDANTS FAILED TO PROTECT HIM
[ECF NO. 64]
Michael Purtue is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff's motion that Defendants
failed to protect him endangering his safety, filed March 23,
2017. From review of Plaintiff's motion, the Court cannot
discern the exact relief Plaintiff is requesting other than a
finding that Defendants failed to protect him. Given
Plaintiff's pro se status, the Court will construe
Plaintiff's motion as a motion for summary judgment. For
the following reasons, Plaintiff's motion must be denied.
action is proceeding against Defendants Rizer, G. Eberle, J.
Meyers, J. Emerson, R. Sanchez, J. Chavez, B. Mello, L. Lundy
and D. Magallance for deliberate indifference to his safety
in violation of the Eighth Amendment, namely, that Defendants
have circulated Plaintiff's trial transcripts in an
effort to have him labeled as a snitch which may subject him
to assault by other inmates.
March 21, 2017, the undersigned issued Findings and
Recommendations recommending that Defendants' motion for
summary judgment be granted and the action be dismissed,
without prejudice, for failure to exhaust the administrative
party may move for summary judgment, and the Court shall
grant summary judgment if the movant shows 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)
(quotation marks omitted); Washington Mut. Inc. v.
U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each
party's position, whether it be that a fact is disputed
or undisputed, must be supported by (1) citing to particular
parts of materials in the record, including but not limited
to depositions, documents, declarations, or discovery; or (2)
showing that the materials cited do not establish the
presence or absence of a genuine dispute or that the opposing
party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court
may consider other materials in the record not cited to by
the parties, but it is not required to do so. Fed.R.Civ.P.
56(c)(3); Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th
judging the evidence at the summary judgment stage, the Court
does not make credibility determinations or weigh conflicting
evidence, Soremekun, 509 F.3d at 984 (quotation
marks and citation omitted), and it must draw all inferences
in the light most favorable to the nonmoving party and
determine whether a genuine issue of material fact precludes
entry of judgment, Comite de Jornaleros de Redondo Beach
v. City of Redondo Beach, 657 F.3d at 942 (quotation
marks and citation omitted).
regard to Plaintiff's motion for summary judgment, as the
party with the burden of persuasion at trial, Plaintiff must
establish “beyond controversy every essential element
of” his affirmative claims. S. Cal. Gas Co. v. City
of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (quoting
W. Shwarzer, California Practice Guide: Federal Civil
Procedure Before Trial § 14:124-127 (2001)).
moving party's evidence is judged by the same standard of
proof applicable at trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
has failed to meet his burden of proof as the moving party on
summary judgment. Plaintiff fails to reference the
allegations in the operative complaint, and refers only to
evidence that he was involved in a fight with another inmate
on February 17, 2017-well after this action was filed and
after the allegations upon which this action is proceeding
took place. Plaintiff, as the moving party, is required to
establish every element of his claim, showing that there are
no disputed issues of facts. Plaintiff's motion consists
of generalized and irrelevant arguments and
complaints about an incident which took place one month ago.
Plaintiff has failed to refer to any specific undisputed
facts, and has failed to submit a separate statement of
undisputed facts. Such a statement “shall enumerate
discretely each of the specific material facts relied upon in
support of the motion and cite the particular portions of any
pleading, affidavit, deposition, interrogatory, answer,
admission or other document relied upon to establish that