United States District Court, E.D. California
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]
Melvin Ray Brummett, Jr. is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C.
before the Court is Plaintiff's motion for summary
judgment, filed February 21, 2018.
action is proceeding is proceeding against Defendant J.
Rivero for retaliation in violation of the First Amendment.
October 2, 2017, Defendant filed an answer to the complaint.
October 5, 2017, the Court issued the discovery and
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
Motion for 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); 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
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).
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).
Allegations of Complaint
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
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 ...