United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with a civil rights action under 42 U.S.C. § 1983.
Plaintiff claims defendant Ringler conducted unnecessary
searches of plaintiff's bunk area on November 21, 2012
and May 7, 2013. Plaintiff alleges these searches were in
retaliation for plaintiff's submission of grievances
regarding Ringler's July 2, 2012 search of his bunk area.
Before the court is defendant's motion for summary
judgment (ECF No. 62), defendant's motion to strike
evidence submitted with plaintiff's opposition (ECF No.
69), and plaintiff's motion for leave to amend his
opposition to the motion to dismiss (ECF No. 70). The court
will deny as moot defendant's motion to strike, grant
plaintiff's motion for leave to amend, and recommend
defendant's motion for summary judgment be granted.
filed his complaint on May 28, 2013. (ECF No. 1.) The
magistrate judge then assigned to the case screened
plaintiff's complaint and determined service was
appropriate for defendants Ringler and Scotland. (ECF No. 9.)
Pursuant to defendants' motion to dismiss the court
recommended Scotland be dismissed but that Ringler be
directed to answer plaintiff's retaliation claim. (ECF
No. 26.) The district judge adopted the findings and
recommendations in full (ECF No. 27) and Ringler filed a
responsive pleading. (ECF No. 28.)
the close of discovery, Ringler filed a motion for summary
judgment. (ECF No. 62.) Plaintiff filed an opposition (ECF
No. 68) and defendant replied (ECF No. 69). Along with the
reply brief, defendant moved to strike evidence plaintiff
submitted in the opposition to the summary judgment motion.
(ECF No. 69.) Plaintiff filed a motion for leave to amend his
opposition (ECF No. 70.) and filed an amended opposition (ECF
No. 71). Ringler opposed plaintiff's motion for leave to
amend the opposition (ECF No. 72).
Allegations in the Complaint
alleges, on July 2, 2012, defendant Ringler along with
Sergeants Ramirez and Clark conducted a two and a half hour
search of plaintiff's personal property and housing area
at California State Prison at Solano. (ECF No. 1 at 3.) As a
result of the search, plaintiff's television and radio
were confiscated because they were deemed contraband.
(Id.) Plaintiff claims he was able to establish
rightful ownership and the items were returned.
(Id.) When he went to retrieve the items he noticed
the radio was damaged due to Ringler's attempts to open
the radio and search for contraband. (Id.) Plaintiff
filed an inmate appeal regarding the search on July 12, 2012.
(Id. at 4.) Plaintiff's appeal was denied at all
three levels, and was exhausted on January 3, 2013, when the
third level review was completed. (Id.) Plaintiff
claims in retaliation for filing this appeal, he was
subjected to improper searches on November 21, 2012 and May
7, 2013. (Id. at 4-5.) Plaintiff requests damages,
and injunctive and declaratory relief. (Id. at 5.)
FOR LEAVE TO AMEND OPPOSITION
filed a motion for leave to amend his opposition to
Ringler's motion for summary judgment. (ECF No. 70.)
Additionally, Ringler moved to strike evidence submitted with
plaintiff's opposition to the motion for summary
judgment. (ECF No. 69-1.)
well-established that the pleadings of pro se litigants are
held to “less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 404
U.S. 519, 520 (1972) (per curium). Nevertheless, “[p]ro
se litigants must follow the same rules of procedure that
govern other litigants.” King v. Atiyeh, 814
F.2d 565, 567 (9th Cir. 1987) (citations omitted),
overruled on other grounds, Lacey v. Maricopa
County, 693 F.3d 896 (9th Cir. 2012) (en banc). However,
the unrepresented prisoners' choice to proceed without
counsel “is less than voluntary” and they are
subject to “the handicaps . . . detention necessarily
imposes upon a litigant, ” such as “limited
access to legal materials” as well as “sources of
proof.” Jacobsen v. Filler, 790 F.2d 1362,
1364-65 & n.4 (9th Cir. 1986) (citations and internal
quotation marks omitted). Inmate litigants, therefore, should
not be held to standard of “strict literalness”
with respect to the requirements of the summary judgment
rule. Id. at 1364 n.4 (citation omitted).
court is mindful of the Ninth Circuit's more overarching
caution in this context, as noted above, that district courts
are to “construe liberally motion papers and pleadings
filed by pro se inmates and should avoid applying summary
judgment rules strictly.” Thomas v. Ponder,
611 F.3d 1144, 1150 (9th Cir. 2010). Accordingly, the court
will grant plaintiff's motion to amend his opposition,
and considers the record before it in its entirety despite
plaintiff's failure to be in strict compliance with the
applicable rules. However, only those assertions in the
opposition and amended opposition which have evidentiary
support in the record will be considered. Additionally, the
court will deny defendant's motion to strike as moot
because the court did not rely upon any of the documents
identified in the motion to strike in reaching a decision on
defendant's motion for summary judgment.
FOR SUMMARY JUDGMENT
motion for summary judgment Ringler argues plaintiff failed
to exhaust administrative remedies, no reasonable juror could
conclude Ringler's actions were retaliatory, and Ringler
is entitled to qualified immunity. Plaintiff responds that he
has exhausted administrative remedies, and he has submitted
proof of all five elements to support a claim of retaliation
in violation of the First Amendment.
Legal Standard For Motion for Summary Judgment
judgment is appropriate when the moving party “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,
“[t]he moving party initially bears the burden of
proving the absence of a genuine issue of material
fact.” In re Oracle Corp. Sec. Litig., 627
F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). The moving party may
accomplish this by “citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials” or by showing that such materials
“do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
the non-moving party bears the burden of proof at trial, the
moving party need only prove there is an absence of evidence
to support the non-moving party's case.” Oracle
Corp., 627 F.3d at 387 (citing Celotex, 477
U.S. at 325); see also Fed.R.Civ.P. 569(c)(1)(B).
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, 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. In such a
circumstance, summary judgment should “be granted so
long as whatever is before the district court demonstrates
that the standard for the entry of summary judgment, as set
forth in Rule 56(c), is satisfied.” Id.
moving party meets its initial responsibility, the burden
shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). In attempting to establish the
existence of this 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 the dispute exists. See
Fed.R.Civ.P. 56(c). 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,
” Anderson v. Liberty Lobby, Inc., 477
U.S.242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. 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, ” Anderson,
477 U.S. at 248.
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 (quoting First Nat'l Bank
of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968). Thus, the “purpose of summary judgment is to
pierce the pleadings and to assess the ...