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Howard v. Williamson

United States District Court, E.D. California

November 6, 2017

GREGORY HOWARD, Plaintiff,
v.
S. WILLIAMSON, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, JUDGE.

         I. Introduction

         Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis. This action proceeds on plaintiff's claims that on November 1, 2013, defendants Williamson, Molten, and Bookout used excessive force, in violation of the Eighth Amendment, while plaintiff was on the ground. On March 7, 2017, defendants filed a motion for summary judgment. As discussed below, the motion should be granted on the grounds that the complaint is barred by the statute of limitations.

         II. Background

         On March 7, 2017, defendants filed a motion for summary judgment on the grounds that this action is time-barred and that plaintiff failed to first exhaust his administrative remedies. Plaintiff was granted two extensions of time in which to file an opposition. On June 22, 2017, plaintiff was directed to file his opposition on or before August 18, 2017. (ECF No. 30.) On July 31, 2017, plaintiff filed a document entitled “Motion for Mental Disorder, Motion of Exhaustion of State Remedies Through Prison Health Care Services, Motion of Loss 602 Appeal, and Excessive Use of Force by CDCR.” (ECF No. 31.) On August 7, 2017, plaintiff filed a document styled, “Motion of Exhaustion of State Remedies Through Prison CSP SAC Warden Tim Virga 11/21/2013.” (ECF No. 33.) On August 8, 2017, defendants filed a reply, construing plaintiff's July 31 filing as his opposition. (ECF No. 34.)

         On September 13, 2017, plaintiff filed a document, signed on September 11, 2017, and styled as a reply, but which the court finds is an unauthorized and untimely sur-reply.[1] (ECF No. 35.)

         III. Legal Standard for Summary Judgment

         Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56 is met. “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).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed.R.Civ.P. 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed.R.Civ.P. 56 advisory committee's notes to 2010 amendments (recognizing that “a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact”). 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. Celotex Corp., 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323.

         Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'” Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments).

         In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed.R.Civ.P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587; Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, 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 586 (citation omitted).

         By contemporaneous notice provided on March 7, 2017 (ECF No. 19-1), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

         IV. Undisputed Facts [2]S

         1. During all relevant times, plaintiff was an inmate in the custody of the California Department of Corrections and Rehabilitation (“CDCR”), and housed at California State Prison -Sacramento (“CSP-SAC”).

         2. Plaintiff was sentenced to life without the possibility of parole. (ECF No. 19-4 at 60;[3]35 at 15.)

         3. During all relevant times, defendants Williamson, Moltzen, and Bookout were correctional officers, employed by CDCR, at CSP-SAC. (ECF No. 1 at 1-3.)

         4. Prior to filing the instant action, on July 26, 2013, plaintiff filed an action in the same forum, against the defendants, raising virtually identical claims. Howard v. Virga, No. 2:13-cv-1523 KJN (E.D. Cal.). (ECF No. 19-4 at 11-38.)

         5. In case No. 2:13-cv-1523 KJN, plaintiff alleged that on November 1, 2013, defendants Williamson, Motzen, and Bookout used excessive force against him incident to a search that occurred at CSP-SAC's C-Facility Canteen. (ECF No. 19-4 at 15-17.)

         6. In his March 19, 2014 second amended complaint filed in case No. 2:13-cv-1523 KJN, plaintiff conceded the grievance process was not completed. (ECF No. 19-4 at 23.) On March 28, 2014, the undersigned dismissed plaintiff's excessive force claims arising from the November 1, 2013 incident because it was clear from the face of the second amended complaint that the grievance process was not complete. (ECF No. 19-4 at 8-9; 50-52.)

         7. In case No. 2:13-cv-1523 KJN, plaintiff was given the option to either file a third amended complaint or to voluntarily dismiss the action. (ECF No. 19-4 at 51-52.)

         8. On April 17, 2014, in No. 2:13-cv-1523 KJN, plaintiff elected to voluntarily dismiss the action, and conceded that his administrative remedies ...


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