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Brummett v. J. Rivero

United States District Court, E.D. California

April 2, 2018

MELVIN RAY BRUMMETT, JR., Plaintiff,
v.
J. RIVERO, Defendant.

          ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION RECOMMENDING THAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BE DENIED [ECF NO. 32]

         Plaintiff Melvin Ray Brummett, Jr. is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Plaintiff's motion for summary judgment, filed February 21, 2018.

         I. RELEVANT HISTORY

         This action is proceeding is proceeding against Defendant J. Rivero for retaliation in violation of the First Amendment.

         On October 2, 2017, Defendant filed an answer to the complaint.

         On October 5, 2017, the Court issued the discovery and scheduling order.

         As previously stated, on February 21, 2018, Plaintiff filed a motion for summary judgment, along with a separate statement of undisputed facts. Defendant filed an opposition on March 9, 2018. Plaintiff did not file a reply and the time to do so has expired. Accordingly, Plaintiff's motion is deemed submitted for review without oral argument. Local Rule 230(1).

         II. DISCUSSION

         A. Motion for Summary Judgment Standard

         Any 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 Cir. 2010).

         In 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).

         With 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)). The 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).

         B. Allegations of Complaint

         On or about February 27, 2014, Plaintiff submitted an inmate appeal complaint about the D-Facility food trays returning back to G-Facility with food and trash still on the trays and inmates being held past their designated work hours. The appeal was withdrawn due to fear of retaliation from threats made by Defendant.

         On or about April 27, 2014, Plaintiff submitted an inmate appeal complaining of the retaliation that took place. Plaintiff complained that on or about March 30, 2014, he was informed by Defendant Gomez that he had a phone call in the office from Defendant ...


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