United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF NO.
Bernard Spencer is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Defendants' motion dismiss and motion
for summary judgment, filed September 30, 2016.
action is proceeding against Defendants Dodson, Escobedo, and
Zoucha for failure to protect in violation of the Eighth
Amendment and against Defendant Escobedo for retaliation in
violation of the First Amendment.
September 19, 2016, the Court denied Plaintiff's motion
for summary judgment for failure to exhaust the
administrative remedies, without prejudice, for failure to
provide the necessary Rand notice, and denied Defendants'
motion to dismiss Plaintiff's retaliation claim for
failure to state a claim.
re-filed the exhaustion-related motion for summary judgment
on September 30, 2016, and motion to dismiss Plaintiff's
failure to protect claim for failure to state a claim and as
barred by Heck v. Humphrey, 512 U.S. 477 (1994) and
retaliation claim for failure to state a cognizable claim.
was granted five separate extensions of time to file an
opposition, but no opposition was filed and the time period
to do has expired. (ECF Nos. 44, 45, 46, 47, 48, 49, 50, 51,
5354.) Accordingly, Defendants' motion is deemed
submitted for review, without oral argument pursuant to Local
Motion to Dismiss Standard
motion to dismiss brought pursuant to Rule 12(b)(6) tests the
legal sufficiency of a claim, and dismissal is proper if
there is a lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.
Conservation Force v. Salazar, 646 F.3d 1240,
1241-42 (9th Cir. 2011) (quotation marks and citations
omitted). In resolving a 12(b)(6) motion, a court's
review is generally limited to the operative pleading.
Daniels-Hall v. National Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d
903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan
Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006);
Schneider v. California Dept. of Corr., 151 F.3d
1194, 1197 n.1 (9th Cir. 1998).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (quotation marks
omitted); Conservation Force, 646 F.3d at 1242;
Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The Court must accept the well-pleaded factual
allegations as true and draw all reasonable inferences in
favor of the non-moving party. Daniels-Hall, 629
F.3d at 998; Sanders, 504 F.3d at 910;
Huynh, 465 F.3d at 996-97; Morales v. City of
Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Courts
may not supply essential elements not initially pled,
Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir.
2014), but “[c]ourts in this circuit have an obligation
to give a liberal construction to the filings of pro se
litigants, especially when they are civil rights claims by
inmates, ” Blaisdell v. Frappiea, 729 F.3d
1237, 1241 (9th Cir. 2013). Pro se complaints “may only
be dismissed ‘if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.'” Nordstrom
v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012)). “This rule relieves pro se litigants from the
strict application of procedural rules and demands that
courts not hold missing or inaccurate legal terminology or
muddled draftsmanship against them.”
Blaisdell, 729 F.3d at 1241.
Summary Judgment Standard
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); Albino, 747 F.3d at 1166;
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, although
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 Cir. 2010).
forth above, the defendants bear the burden of proof in
moving for summary judgment for failure to exhaust,
Albino, 747 F.3d at 1166, and they must “prove
that there was an available administrative remedy, and that
the prisoner did not exhaust that available remedy, ”
id. at 1172. If the defendants carry their burden,
the burden of production shifts to the plaintiff “to
come forward with evidence showing that there is something in
his particular case that made the existing and generally
available administrative remedies effectively unavailable to
him.” Id. “If the undisputed evidence
viewed in the light most favorable to the prisoner shows a
failure to exhaust, a defendant is entitled to summary