United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, JUDGE.
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.
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.)
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. (ECF No. 35.)
Legal Standard for Summary Judgment
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.
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).
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).
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
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).
Undisputed Facts S
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”).
Plaintiff was sentenced to life without the possibility of
parole. (ECF No. 19-4 at 60;35 at 15.)
During all relevant times, defendants Williamson, Moltzen,
and Bookout were correctional officers, employed by CDCR, at
CSP-SAC. (ECF No. 1 at 1-3.)
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
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
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;
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.)
April 17, 2014, in No. 2:13-cv-1523 KJN, plaintiff elected to
voluntarily dismiss the action, and conceded that his
administrative remedies ...