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Hampton v. Virga

United States District Court, E.D. California

September 22, 2019

TIM VIRGA, et al., Defendants.



         Plaintiff 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.


         I. Relevant Procedural History

         Plaintiff initiated this action with the filing of the original complaint on April 26, 2013.[1](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.)

         By 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.)

         Following 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).

         II. Allegations in the Operative Complaint

         As 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.)

         Plaintiff 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.

         Plaintiff 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.


         Defendant 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.

         I. Legal Standards – Summary Judgment under Rule 56

         Summary 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).

         “Where 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 satisfied.” Id.

         If the 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. ...

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