(PC) Sanchez v. Stancliff, et al., No. 1:2007cv00128 - Document 91 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 74 Defendants' Amended Unenumerated 12(b) Motion to Dismiss be DENIED Without Prejudice; that Defendants' are Entitled to Judgment as a Matter of Law Such That Their 84 Motion for Summary J udgment be GRANTED; and that the Clerk of the Court be DIRECTED to Enter Judgment for the Defendants and Against Plaintiff re 22 Amended Complaint, signed by Magistrate Judge Sandra M. Snyder on 8/14/2009. Referred to Judge O'Neill. Objections to F&R due by 9/3/2009. (Jessen, A)
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(PC) Sanchez v. Stancliff, et al. Doc. 91 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANTHONY JOSEPH SANCHEZ, 10 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS’ MOTION TO DISMISS BE DENIED and DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BE GRANTED Defendants. 11 12 CASE NO. 1:07-cv-00128-LJO-SMS PC (Docs. 74 & 84) v. STANCLIFF, et al., 13 14 / OBJECTIONS DUE WITHIN THIRTY DAYS 15 FINDINGS AND RECOMMENDATIONS 16 I. Procedural History 17 Plaintiff Anthony Joseph Sanchez (“Plaintiff”) is a state pr isoner proceeding pro se and 18 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is 19 proceeding against Defendant Stancliff for use of excessive physical force in violation of the Due 20 Process Clause and for violation of the Equal Protection Clause; against Defendants Stancliff and 21 Lindini for deprivation of Plaintiff’s liberty interest in his classification status without procedural 22 due process; and against the Kern County Sheriff’s Department for violating Plaintiff’s rights 23 under the Due Process Clause with respect to an unconstitutional policy, or practice, 24 allowing/authorizing unconstitutional use of force, on or about September 15, 2000, as alleged in 25 the First Amended Complaint.1 (Doc. 22.). The events at issue in this action allegedly occurred 26 while Plaintiff was a pretrial detainee housed at the Kern County Jail. 27 28 1 Plaintiff’s First Amended Complaint (hereinafter “FAC”.) 1 Dockets.Justia.com 1 On October 15, 2008, Defendants Stancliff and Kern County Sheriff’s Department 2 (“Defendants”)2 filed a motion to dismiss for failure to exhaust which was denied without 3 prejudice. (Doc. 51.) On March 27, 2009, Defendants filed an amended motion to dismiss for 4 failure to exhaust.3 (Doc. 74.) Plaintiff filed an opposition on April 22, 2009, and Defendants 5 filed a reply on April 28, 2009.4 (Docs. 77, 79.) On June 15, 2009, Defendants filed a motion 6 for summary judgment based on a duplicate of the evidence submitted in their amended motion 7 to dismiss.5 (Doc. 84.) Plaintiff did not file any documents in opposition.6 Defendants filed a 8 Reply Regarding Plaintiff’s Failure to Oppose Motion for Summary Judgment. (Doc. 89.) The 9 Court reviews both Defendants’ motion to dismiss and for summary judgment in this finding and 10 recommendation since both of these motions are based on the same evidence.7 11 /// 12 /// 13 14 15 16 17 18 19 20 21 22 23 24 2 The United States Marshal was unable to locate and serve Defendant Lindini. 3 Defendants Notice of Amended Unenumerated 12(b) Motion and M otion to Dismiss First Amended Complaint for Failure to Exhaust (hereinafter “AMTD”). 4 Plaintiff was provided with notice of the requirements for opposing an unenumerated Rule 12(b) motion on June 11, 2008. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). (Doc. 39.) 5 Defendants’ Notice of Motion and Motion for Summary Judgment and Exhibits (hereinafter “MSJ”.) 6 Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment by the court in an order filed on June 11, 2008. Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. 39.) Plaintiff neither filed his own separate statement of disputed facts nor admitted or denied the facts set forth by defendant as undisputed. Local Rule 56-260(b). Defendant’s statement of undisputed facts is accepted except where brought into dispute by plaintiff’s verified complaint. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (verified complaint may be used as an opposing affidavit if it is based on pleader’s personal knowledge of specific facts which are admissible in evidence). Opposition to a motion for summary judgment may be considered as an opposing affidavit for purposes of the summary judgment rule if it is based on facts within the pleader’s personal knowledge. Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998). Thus, the Court infers that Plaintiff’s verified First Amended Compliant and papers submitted in opposition to the Defendants’ motion to dismiss present the evidence and arguments that Plaintiff wishes the Court to consider on both motions. 7 25 26 27 28 In arriving at this findings and recommendations, this Court carefully reviewed and considered all arguments, points and authorities, declarations, depositions, exhibits, statements of undisputed facts and responses thereto, objections, and other papers filed by the parties in regards to both Defendants’ motion to dismiss and motion for summary judgment as well as the pending discovery motions mentioned herein. Omission of reference to an argument, document, paper, or objection is not be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material and appropriate for Defendants’ motion to dismiss and for summary judgment. 2 1 II. Defendants’ Motion to Dismiss 2 A. 3 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with Exhaustion Requirement 4 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 5 confined in any jail, prison, or other correctional facility until such administrative remedies as are 6 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 7 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 210-12 (2007); 8 McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required 9 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 10 Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all 11 prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). “[P]roper 12 exhaustion of administrative remedies is necessary,” and “demands compliance with an agency’s 13 deadlines and other critical procedural rules . . . .” Woodford v. Ngo, 548 U.S. 81, 83-84, 90 14 (2006). 15 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 16 defense under which Defendants have the burden of raising and proving the absence of 17 exhaustion. Jones, 549 U.S. at 215; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The 18 failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an 19 unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at 20 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th 21 Cir. 1998) (per curium)). In deciding a motion to dismiss for failure to exhaust administrative 22 remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 23 315 F.3d at 1119-20. If the Court concludes that the prisoner has failed to exhaust administrative 24 remedies, the proper remedy is dismissal without prejudice. Id. 25 B. 26 The Kern County Sheriff’s Department has an administrative remedy appeal process in 27 place (“the Kern appeal process”). (Doc. 22, FAC, § II; Doc. 74, AMTD; Doc. 74-2, Exh. B to 28 Silva Decl.) The Kern appeal process is initiated by an inmate submitting either a verbal Available Administrative Remedy Process 3 1 complaint or written grievance which is to be acted upon by the Shift Supervisor. (Doc. 74, 2 AMTD, pp. 12-18; Doc. 74-2, Exh. B to Silva Decl.) A written response is to issue within forty- 3 eight (48) hours. (Id.) An inmate may submit a written appeal regarding the outcome of the 4 appeal to the level of authority one step above the officer who initially decided the issue. (Id.) 5 There is no apparent time limit for an inmate to submit an initiating complaint or appeal other 6 than that the inmate must be in Defendants’ custody. (Id. at Silva Decl., ¶ 7.) 7 C. 8 Defendants argue that they are entitled to dismissal because there is no evidence that 9 Defendants’ Argument Plaintiff exhausted the administrative remedy process.8 10 The First Amended Complaint alleges that Plaintiff’s rights under the United States 11 Constitution were violated while he was in Defendants’ custody, on or about September 15, 12 2000. (e.g. Doc. 22, FAC, pp.4, 6, 8.) Defendants submit evidence showing that Plaintiff was 13 not in custody on or about September 15, 2000, or September 16, 2000. (Doc. 74-2, Exh. pp.12- 14 15; Silva Decl., ¶5, and Exh. A.) Defendants submit evidence which shows that, in 2000 and 15 2001, Plaintiff was in Kern County Detention Facilities from February 10, 2000 through 16 February 17, 2000; from November 7, 2000 through November 8, 2000; and from February 25, 17 2001 through June 15, 2001. (Id.) Defendants argue not only was Plaintiff not in custody on the 18 date of the alleged incident, but that he was also not at any Kern County Detention Facilities on 19 the dates immediately following the September 15, 2000 incident at which time Plaintiff 20 allegedly attempted to appeal/grieve the incident. (Doc. 74, AMTD, 11:16-18.) Defendants 21 further argue and submit evidence that Plaintiff never filed a grievance regarding any aspect of 22 the incident (Doc. 74-2, Wahl Decl. ¶ 6.e); Plaintiff did not file any grievance(s) in the years 23 2000 or 2001 (Id. Silva Decl. ¶ 6); Plaintiff did not file any grievances at the Lerdo Max-Med 24 Security Facility between September 15, 2000 and July 2002 (Id. Bittle Decl. ¶ 6, Dearmore 25 Decl. ¶¶ 5-8); there were no grievances filed by Plaintiff at the Lerdo Minimum Security Facility 26 27 28 8 Defendants, in their first motion to dismiss, located one exhausted appeal, and in his opposition, Plaintiff identified two. However, neither is relevant to the claims in this action -- both based on content of allegations and dates of filing. 4 1 between September 15, 2000 and the end of 2001 (Id. Wright Decl. ¶ 6, Gordon Decl. ¶¶ 5-8); 2 and there were no grievances filed by Plaintiff at the Central Receiving Facility between 3 September 15, 2000 and the end of 2001 (Id. Barnes Decl. ¶ 6, Brien Decl. ¶¶ 5-8). Defendants 4 also submit evidence that filings by an inmate who has left Defendants’ custody are 5 Personnel/Citizen’s Complaints. (Id. Silva Decl. ¶ 7.) 6 Prior to filing suit in federal court, a prisoner must exhaust remedies through the 7 offending prison’s administrative grievance/appeal process. Booth, 532 U.S. at 741. 8 “Compliance with prison grievance procedures . . . is all that is required by the PLRA to 9 ‘properly exhaust.’ The level of detail necessary in a grievance to comply with the grievance 10 procedures will vary from system to system and claim to claim, but it is the prison’s 11 requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 12 U.S. at 218. 13 “[W]hen a prison’s grievance procedures are silent or incomplete as to factual specificity, 14 ‘a grievance suffices if it alerts the prison to the nature of the wrong for which redress is 15 sought.’” Griffin v. Arpaio 557 F.3d 1117, 1120 (9th Cir. 2009) citing Strong v. David, 297 F.3d 16 646, 650 (7th Cir. 2002). “The primary purpose of a grievance is to notify the prison of a 17 problem and facilitate its resolution, not to lay groundwork for litigation.” Id. ref Johnson v. 18 Johnson, 385 F.3d 503, 522 (2004) cited with approval in Jones, 549 U.S. at 219. A prison’s 19 own procedures define the contours of proper exhaustion. Griffin 575 F.3d at 1120 ref. Jones 20 549 U.S. at 218. 21 There are no apparent deadlines in the Kern appeal process for someone in Defendants’ 22 custody to initiate the appeal process. (Doc. 74-2, Silva Decl. at ¶ 7 & Exh. B.) Thus, it appears 23 that Plaintiff could have filed a verbal complaint or written grievance at any time after the 24 incident, as long as he was in Defendants’ custody. 25 Defendants’ evidence acknowledges that Plaintiff was in their custody on February 26, 26 2001 (Id. at pg. 15), and that he lodged a complaint against staff on that date (Doc. 74-3, Exhs. 27 pp. 2-3). Defendants submit the declaration of RoseMary Wahl and argue that her letter of 28 March 31, 2006 was “merely follow-up correspondence regarding the investigation of 5 1 [Plaintiff’s] February 28, 2006 Personnel Complaint, . . .” which did not initiate the Kern appeal 2 process. (Doc. 74-2, Wahl Dec, ¶ 5.b emphasis added) However, the March 31, 2006 3 correspondence advised Plaintiff that his allegations were sustained after completion of 4 investigation into the complaint Plaintiff lodged against members of the Kern County Sheriff’s 5 Department on February 26, 2001. (Doc. 74-3, Exhs. pp. 2-3.) Defendants do nothing to 6 explain the discrepancy between the dates and terminology of these two accusatory actions by 7 Plaintiff. Further, while Defendants submit a copy of a Personnel/Citizen’s Complaint that 8 Plaintiff filed on February 28, 2006 and a letter acknowledging receipt thereof (Doc. 74-3, pp. 4- 9 12), they failed to submit a copy of the document lodged by Plaintiff on February 26, 2001 or any 10 letter acknowledging receipt thereof to show that Defendants treated it like a Personnel/Citizen’s 11 Complaint. Defendants further appear to argue that the use of the word “complaint” variously by 12 their staff and by Plaintiff indicates that any February 26, 2001 action by Plaintiff was necessarily 13 a Personnel/Citizen’s Complaint, and not a grievance sufficient to have initiated the Kern appeal 14 process. However, the Kern appeal process uses both the words “complaint” and “grievance” 15 such that the Court is unable to accept Defendants’ assertion that any document and/or action 16 labeled as a “complaint” does not initiate the Kern appeal process for exhaustion purposes. 17 (Doc. 74-2, Exh B to Silva Decl.) Thus, Defendants’ own evidence does not lead to the 18 conclusion that the allegations Plaintiff lodged on February 26, 2001 could have only been a 19 Personnel/Citizen’s Complaint, and not some other action which would have sufficed to initiate 20 the Kern appeal process. 21 Further, the Kern appeal process specifically provides for resolution of “verbal inmate 22 complaints.” (Id.) This necessarily implies that someone in Defendants’ custody is not restricted 23 to only submitting a written document, let alone one entitled “grievance,” to effectively initiate 24 the Kern appeal process. Defendants do not submit any evidence to prove that Plaintiff did not 25 make a verbal complaint “following the incident” which would have sufficed to initiate the Kern 26 appeal process. 27 28 Finally, while the absence of evidence that a grievance was officially filed (as Defendants present) may indicate Plaintiff never submitted the appeal, it may also indicate that the appeal 6 1 was discarded or ignored by staff, as Plaintiff contends.9 See Spence v. Director of Corr., 2007 2 WL 61006, No. CIV S-05-0690 GEB KFM PC, *3 (E.D.Cal. Jan. 8, 2007) (If custody officials 3 “are interfering with inmates’ ability to properly file [inmate grievances/appeals], then there will 4 be no official record of the [inmate’s grievances/appeals] having been ‘accepted.’”), findings and 5 recommendations adopted in full, 2007 WL 738528 (E.D.Cal. Mar. 6, 2007). Additionally, 6 although the Ninth Circuit has not yet decided the issue, Ngo v. Woodford, 539 F.3d 1108, 1110 7 (9th Cir. 2008) (it is unclear if any exceptions to exhaustion apply), other Circuit Courts have 8 addressed the issue and held that exhaustion occurs when prison officials prevent exhaustion 9 from occurring through misconduct or fail to respond to a grievance within the policy time limits, 10 e.g., Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) (Courts are “obligated 11 to ensure any defects in exhaustion were not procured from the action of inaction of prison 12 officials.”); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (“Prison officials may not take 13 unfair advantage of the exhaustion requirement, [] and a remedy becomes ‘unavailable’ if prison 14 employees do not respond to a properly filed grievance or otherwise use affirmative misconduct 15 to prevent a prisoner from exhausting.” (quoting Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 16 2006))); Boyd v. Corrections Corp. of America, 380 F.3d 989, 996 (6th Cir. 2004)(administrative 17 remedies are exhausted when prison officials fail to timely respond to properly filed grievance). 18 In a situation such as this where Plaintiff submitted evidence that he attempted to 19 properly utilize the appeals process, but received no response to his appeals, Defendants must do 20 more than show an inability to locate an appeal. Defendants are not entitled to dismissal unless 21 they address Plaintiff’s contention and demonstrate what remedies were available in such a 22 situation – which Defendants did not do. Further, where the parties offer differing versions of 23 events based on competing declarations, the issue is one of witness credibility and the Court 24 cannot make that requisite assessment on a motion to dismiss. Defendants have not 25 demonstrated Plaintiff’s failure to exhaust. Jones, 549 U.S. at 216; Brown v. Valoff, 422 F.3d 26 27 28 9 In his opposition, Plaintiff submits a declaration stating that “following the incident” and “prior to leaving” Defendants’ custody, he filed three inmate appeals with “housing unit floor officers during the regular walk through” which were never responded to. (Doc. 77, p. 11, ¶¶ 1-5.) 7 1 926, 936 (9th Cir. 2005). 2 The Court is not finding that Plaintiff exhausted administrative remedies. Rather, the 3 Court is merely finding that Defendants have not met their burden and are not entitled, at this 4 time, to dismissal for failure to exhaust. Accordingly, the Court recommends Defendants’ 5 amended motion to dismiss be denied without prejudice. 6 III. 7 8 9 10 Defendants’ Motion for Summary Judgment However, the Court finds basis for dismissal of this action in the Defendants’ motion for summary judgment. (Doc. 84, MSJ.) A. Legal Standard Summary judgment is appropriate when it is demonstrated that there exists no genuine 11 issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 12 Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 13 14 15 [A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the 17 burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made 18 in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on 19 file.’” Id. Indeed, summary judgment should be entered, after adequate time for discovery and 20 upon motion, against a party who fails to make a showing sufficient to establish the existence of 21 an element essential to that party’s case, and on which that party will bear the burden of proof at 22 trial. Id. at 322. “[A] complete failure of proof concerning an essential element of the 23 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 24 circumstance, summary judgment should be granted, “so long as whatever is before the district 25 court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 26 satisfied.” Id. at 323. Where the nonmoving party has the burden of proof at trial, “the burden 27 on the moving party may be discharged by ‘showing’ - that is pointing out to the district court 28 8 1 2 that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. If the moving party meets its initial responsibility, the burden then shifts to the opposing 3 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 4 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 5 existence of this factual dispute, the opposing party may not rely upon the denials of its 6 pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or 7 admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); 8 Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in 9 contention is material, i.e. a fact that might affect the outcome of the suit under the governing 10 law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific 11 Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., 12 the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool 13 v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 14 In the endeavor to establish the existence of a factual dispute, the opposing party need not 15 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 16 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 17 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 18 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 19 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 20 amendments). 21 In resolving the summary judgment motion, the Court examines the pleadings, 22 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 23 any. Rule 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 24 255, and all reasonable inferences that may be drawn from the facts placed before the Court must 25 be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. 26 Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). Nevertheless, inferences are not drawn out 27 of the air, and it is the opposing party’s obligation to produce a factual predicate from which the 28 inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. 9 1 Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). 2 Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 3 show that there is some metaphysical doubt as to the material facts. Where the record taken as a 4 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 5 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 6 B. 7 In support of their motion for summary judgment Defendants submit an exact duplicate of Analysis 8 the evidence they submitted in support of their amended motion to dismiss. (Docs. 74-2, 74-3, 9 87-3.) Defendants contend that Plaintiff cannot raise a triable issue of fact as to whether he was 10 in their custody on or about September 15, 2000, as alleged in Plaintiff’s First Amended 11 Complaint, so as to entitle them to judgment as a matter of law. 12 As discussed above, the First Amended Complaint, upon which the action proceeds, 13 alleges that Plaintiff’s rights under the United States Constitution were violated while he was in 14 Defendants’ custody, on or about September 15, 2000. (e.g. Doc. 22, FAC, pp.4, 6, 8.) If 15 Plaintiff was not in Defendants’ custody on or about September 15, 2000, Defendants could not 16 have violated his constitutional rights on or about September 15, 2000 as alleged. Defendants 17 have shown that Plaintiff was not in their custody on or about September 15, 2000. (Doc. 85, 18 UMF10 # 07; Doc. 74-2, Exh. A to Silva Decl.) The Court finds that Defendants have met their 19 initial burden of informing the Court of the basis for their motion, and submitting evidence 20 which demonstrates the absence of a genuine issue of material fact – that Plaintiff was not in 21 their custody on or about September 15, 2000.11 The burden therefore shifts to Plaintiff to 22 establish the existence of a genuine issue as to any material fact. See Matsushita, 475 U.S. at 23 586. 24 Since Plaintiff is pro se, and did not file an opposition to Defendants’ motion for 25 26 10 27 11 28 Undisputed Material Fact (hereinafter “UMF”). Since, as discussed herein below, there is no genuine issue of material fact as to whether Plaintiff was in Defendants’ custody on September 15, 2000, the Court need not expend its limited resources to reiterate and/or otherwise evaluate all the other undisputed material facts, supporting evidence, and arguments submitted by Defendants. 10 1 summary judgment, or any evidence to dispute Defendants’ evidence that Plaintiff was not in 2 their custody on or about September 15, 2000, and so as to provide him every leniency, the Court 3 reviewed all pending motions, from which Plaintiff might draw evidence to show that he was in 4 Defendants’ custody on the date of incident as alleged in the First Amended Complaint. 5 The Court reviewed “Plaintiff’s Motion for Court Order Compelling Defendants to 6 Disclose and Produce Items Previously Requested (Rule 37)” (Doc. 65), “Plaintiff’s 7 Supplemental Rule § [sic] 36 Request to Disclose and Produce (Supplemental No.2)” (Doc. 67), 8 “Plaintiff’s Motion for Thirty Day Extension to Discovery Cut-Off Dates” (Doc. 76), and 9 “Plaintiff’s Motion for Subpoena’s for Documents Rule 45(a)(3)” (Doc. 78) to assess if the 10 documents sought might be germane to whether Plaintiff was in Defendants’ custody in on or 11 about September 15, 2000 so as to justify a continuance of the present motion to allow discovery 12 to be had. Rule 56(f) of the Federal Rules of Civil Procedure provides as follows: 13 14 15 (f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. 16 In order to prevail on a Rule 56(f) motion, the party “must show (1) that they have set forth in 17 affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts 18 sought exist, and (3) that these sought-after facts are ‘essential’ to resist the summary judgment 19 motion.” State of California v. Campbell, 138 F.2d 772, 779 (9th Cir. 1998). “In making a Rule 20 56(f) motion, a party opposing summary judgment ‘must make clear what information is sought 21 and how it would preclude summary judgment.’” Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 22 1998) (quoting Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 23 1987)). The burden is on the party seeking to conduct additional discovery to put forth sufficient 24 facts to show that the evidence sought exists. Volk v. D. A. Davidson & Co., 816 F.2d 1406, 25 1416 (9th Cir. 1987). 26 Plaintiff did not submit a declaration/affidavit in support of his motion for subpoena’s for 27 documents, nor did he intimate in any way how he believed the documents sought would address 28 11 1 any issues in this case. (Doc. 78.) Plaintiff did submit a declaration in support of his motion to 2 compel production of documents (Doc. 65, pp. 10-15), which only addressed his requests for a 3 copy of the Internal Affairs file No. 01-0411-043, a copy of a five page Citizen’s Complaint 4 Plaintiff filed (of which Plaintiff’s copy was missing page five), and a transcribed copy of the 5 recorded statement Plaintiff gave on October 31, 2001. However, Defendants produced the latter 6 two documents as a copy of a five page Citizen’s Complaint filed by Plaintiff (missing page 7 five)12 was submitted in support of their motions (Doc. 74-3, Exhs. pp. 5-10) as was a transcribed 8 copy of Plaintiff’s recorded statement (Id. at 14-24). The Court has reviewed these two 9 documents and finds that neither contain any evidence to establish that Plaintiff was in 10 Defendants’ custody on or about September 15, 2000. Despite having had opportunity to file an 11 opposition and/or declaration under Rule 56(f), Plaintiff has failed to make clear how the Internal 12 Affairs file of the incident might establish that he was in Defendants’ custody on or about 13 September 15, 2000 so as to preclude summary judgment. Plaintiff has not met (nor even 14 attempted to meet) his burden to show that evidence, to prove he was in Defendants’ custody on 15 or about September 15, 2000, exists so as to be allowed to conduct additional discovery. 16 The Court finds that none of Plaintiff’s motions even so much as suggest the existence of 17 information germane to Plaintiff’s custodial status on or about September 15, 2000 as alleged.13 18 Apparently, Plaintiff also felt that none of the documents sought would likely establish that he 19 was in Defendants custody on or about September 15, 2000 as he did not file an affidavit under 20 Federal Rule of Civil Procedure 56(f) seeking a continuance to allow discovery to be undertaken 21 that would justify continuing the motion. 22 Defendants have established that Plaintiff was not in Defendants’ custody on or about 23 September 15, 2000. Plaintiff has not established a genuine issue of material fact as to whether 24 he was in Defendant’s custody on or about September 15, 2000. The record taken as a whole 25 26 27 28 12 The Court has reviewed the submitted pages of this document and finds that it is highly unlikely, if not impossible that the missing page might contain evidence to prove that Plaintiff was in Defendants’ custody on September 15, 2000. 13 These motions are denied in a concurrently issued order. 12 1 could not lead a rational trier of fact to find that Plaintiff was in Defendants’ custody on or about 2 September 15, 2000. There is no genuine issue for trial as to whether the Plaintiff was in 3 Defendants’ custody for his rights to have been violated on or about September 15, 2000 as 4 alleged in the First Amended Complaint.14 Thus, Defendants are entitled to judgment as a matter 5 of law such that their motion for summary judgment should be granted. 6 V. Conclusions and Recommendations 7 As set forth herein, the Court HEREBY RECOMMENDS: 8 (1) 9 that Defendants’ Amended Unenumerated 12(b) Motion to Dismiss, filed March 27, 2009, be DENIED without prejudice; and 10 (2) 11 that Defendants’ are entitled to judgment as a matter of law such that their Motion for Summary Judgment, filed June 15, 2009, be GRANTED; and 12 (3) 13 that the Clerk of the Court be directed to enter judgment for the Defendants and against Plaintiff. 14 These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 16 fifteen (15) days after being served with these Findings and Recommendations, the parties may 17 file written objections with the Court. The document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 19 objections within the specified time may waive the right to appeal the District Court’s order. 20 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 IT IS SO ORDERED. 22 Dated: icido3 August 14, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 14 Since Plaintiff fails to present any evidence to oppose Defendants’ assertion that he was not in their custody on the date(s) alleged in the First Amended Complaint, the Court does not reach Defendants’ other arguments regarding statute of limitations, tolling, and Monell liability. The issue of exhaustion of administrative remedies was discussed in the portion of this finding and recommendation dealing with Defendants’ unenumerated motion to dismiss. 13
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