United States District Court, E.D. California
DOMINGO L. CLEVELAND, SR., Plaintiff,
JANSSEN PHARMACEUTICALS, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a prisoner proceeding in this action pro se, and the case
was accordingly referred to the undersigned by Local Rule
302(c)(21). This matter is before the court on a motion for
summary judgment brought by defendant Janssen
Pharmaceuticals. ECF No. 93. Plaintiff has opposed the motion
(ECF No. 107) and defendant has filed a reply (ECF No. 108).
Plaintiff has filed a motion to file a sur-reply (ECF No.
109) which defendant opposes (ECF No. 110). The undersigned
will GRANT plaintiff's motion to file a sur-reply. For
the reasons stated below, it is recommended that
defendant's motion for summary judgment be GRANTED.
case was filed on September 27, 2016, ECF No. 1, and proceeds
on the Second Amended Complaint (“SAC”), ECF No.
12. Plaintiff alleges that he suffered the side effect of
gynecomastia from taking defendant's drug Risperdal. ECF
No. 12. The undersigned ordered that a settlement conference
take place, and appointed counsel to represent plaintiff for
the limited purpose of the settlement conference. ECF No. 36.
Settlement negotiations failed and plaintiff resumed pro se
status. ECF No. 54, 60. The parties proceeded through the
discovery process and on July 8, 2019, defendant filed the
instant motion for summary judgment. ECF No. 93. Plaintiff
was given two extensions of time to oppose the motion (ECF
Nos. 99 and 106), filing his opposition on October 9, 2019.
ECF No. 107. The motion is fully briefed.
November 1, 2019, plaintiff filed a motion to file a
sur-reply, which contained the proffered sur-reply and
responses to defendant's statement of undisputed facts.
ECF No. 109. Defendant objects to the sur-reply and asks the
court to strike the filing. ECF No. 110. The decision as to
whether to allow a surreply is within the court's
discretion, though the discretion should only be exercised in
favor of allowing the surreply when there is a valid reason
for the additional briefing. Hill v. England,
2:05-cv-0869-REC-TAG, 2005 WL 3031136, at *1 (E.D. Cal. Nov.
8, 2005). Here, additional briefing is warranted because only
in the surreply does plaintiff contribute to the statement of
undisputed facts. Accordingly, and because it is in the
interest of justice to fully consider plaintiff's case on
the merits, the court exercises its discretion in favor of
allowing the surreply. The filing at ECF No. 109 has been
fully considered in evaluating defendant's motion for
Standard 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).
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
then 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,
447 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 proof in order to see
whether there is a genuine need for trial.”
Matsushita, 475 U.S. at 587 (citation and internal
quotation marks omitted).
evaluating the evidence to determine whether there is a
genuine issue of fact, [the court] draw[s] all inferences
supported by the evidence in favor of the non-moving
party.” Walls v. Cent. Costa County
Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011)
(citation omitted). It is the opposing party's obligation
to produce a factual predicate from which the inference may
be drawn. See Richards v. Nielsen Freight Lines, 810
F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a
genuine issue, the opposing party “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita, 475 U.S. at 586
(citations omitted). “Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for
trial.'” Id. at 587 (quoting First
Nat'l Bank, 391 U.S. at 289).
Statement of Undisputed Facts
otherwise specified, the following facts are either expressly
undisputed by the parties or have been determined by the
court, upon a full review of the record, to be undisputed by
was first prescribed the drug Risperdal in 2005 to treat
schizophrenia while at Mule Creek State Prison; the
medication was prescribed because plaintiff was suffering
auditory hallucinations, major depression, and recurrent
bipolar disorder symptoms. Deposition of Domingo Cleveland,
Sr., taken February 25, 2019, (“D. Cleveland Depo.
Tr.”), Ex. 1 to Barkeshli Decl. at 38:1-21; RJD
Inpatient Medical Records, Ex. 29 to Barkeshli Decl. at
DC:RJD:INPATIENT:000441-466. Plaintiff took Risperdal
regularly from 2005 through 2018, at which point he asked to
be taken off the medication. D. Cleveland Depo. Tr., Ex. 1 to
Barkeshli Decl. at 40:7-12; ...