United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
is a state inmate proceeding pro se and in forma pauperis
with a civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims that defendant retaliated against him and
interfered with his access to the courts. Presently before
the court is defendant’s fully briefed motion for
summary judgment. For the reasons set forth below the court
will recommend that defendant’s motion be granted.
Relevant Procedural History
initiated this action with the filing of the original
complaint on April 26, 2013.(ECF No. 1.) The previously
assigned magistrate judge screened and dismissed the original
complaint for failure to state a claim. (ECF No. 7.)
Plaintiff filed a first amended complaint (ECF No. 10), that
was also dismissed for failure to state a claim. (ECF No.
12.) Thereafter, plaintiff filed a second amended complaint
(SAC). (ECF No. 13.)
order dated September 20, 2017, the undersigned determined
that plaintiff’s second amended complaint stated a
cognizable claim against defendant Agnone. (ECF No. 16.) The
court also found that plaintiff failed to state a claim
against defendant Virga because the SAC did not contain any
factual allegations against Virga. Plaintiff was given the
option to proceed with his claims against Agnone or to amend
the complaint. (ECF No. 16 at 3.) Plaintiff opted to proceed
only on his claims against Agnone. (ECF No. 17.)
a brief discovery period, defendant moved for summary
judgment. (ECF No. 29.) Plaintiff filed a response (ECF No.
32) and defendant filed a reply (ECF No. 33).
Allegations in the Operative Complaint
stated above, this action proceeds on the SAC. The
allegations in the SAC are as follows: Defendant (Agnone)
issued a rules violation report (RVR) because plaintiff
failed to stand for count. (ECF No. 13 at 3.) Plaintiff
states he is exempt from the standing requirement because he
uses a cane. Plaintiff claims he received the RVR in
retaliation for a grievance plaintiff wrote against Warden
Virga. (Id. at 1.)
told defendant he would commit suicide. (Id. at
1-2.) A nurse claimed plaintiff threatened her while he was
under supervision. (Id. at 2.) Plaintiff claims
defendant was standing there and knew the nurse’s claim
was false. Plaintiff further states that he was sent to a
hospital for three weeks and thereafter was housed in
administrative segregation. Plaintiff claims he returned to
his cell to find his television and some law books were
missing. He states that as a result he suffered a mental
breakdown and his case against Warden Virga was dismissed.
also claims that Agnone did not “allow plaintiff to
sign a property slip to acknowledge his property was
there.” (Id. at 2.) He alleges that because he
was classified as suicidal and homicidal, a nurse could not
approach without an officer. He states “this was done
to harm” him and deprive him of necessities such as
toothpaste, deodorant, and lotion.
FOR SUMMARY JUDGMENT
argues that he is entitled to summary judgment because
plaintiff failed to exhaust administrative remedies. (ECF No.
29-2.) Defendant alleges that the only relevant grievance
plaintiff filed was rejected at the third level of review and
was not resubmitted.
Legal Standards – Summary Judgment under Rule
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 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. 56(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
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.